- U.S. Immigration and Refugees
- August 21, 2017 | Author: Alexander Joseph Segal
- Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
What is “Refugee” in U.S. Immigration Law? How is it Different From Asylum?
Both refugees and asylees must meet the Immigration and Nationality Act (INA) definition of “refugee.” However, there is a key difference between refugees and asylees in how one seeks the statuses. Refugee applicants seek status abroad through a referral to the United States Refugee Admissions Program (USRAP). Conversely, asylees may only apply for status when physically present in the United States. This difference is the key distinction between refugees and asylees in U.S. immigration law.
Statutory Definition of Refugee
It is important to understand that refugee status is not a catch-all remedy for an individual who faces any set of undesirable conditions in his or her home country. It is only available to people who can establish past persecution or a well-founded fear of persecution on specified grounds by a specified actor.
The definition of “refugee” is found in section 101(a)(42) of the INA. A refugee must be unable or unwilling to avail him or herself to the protection of his or her country of nationality, or lacking nationality, country of last habitual residence. This inability or unwillingness must be based on past persecution or a well-founded fear of future persecution on one of the five grounds specified in statute. The five grounds are as follows: (1) Race; (2) Religion; (3) Nationality; (4) Membership in a particular social group; and (5) Political opinion. It is worth noting that the statute specifies that individuals who were forced to abort a pregnancy or undergo involuntary sterilization or who have been persecuted for failure to undergo such a procedure or for opposing a population control program “shall be deemed to have been persecuted on account of political opinion” (this extends to having a “well-founded fear of future persecution as well).
Furthermore, the persecutor must be either the government of the individual’s home country or non-government forces who the government is either unable or unwilling to control.
The statute makes clear that the term “refugee” does not apply to any individual who “ordered, incited, assisted, or otherwise participated in the persecution” of any individual on one of the specified grounds. This means that an individual who would otherwise meet the definition of refugee would be ineligible for status as a refugee if he or she persecuted others on one of the five grounds found in section 101(a)(42).
In order to be admitted as a refugee, the applicant may not be “firmly resettled” in any foreign country. In the Matter of B-R-, 26 I&N 119 (BIA 2013), the Board of Immigration Appeals held that an individual who has the nationality or citizenship of more than one country does not meet the definition of “refugee” if he or she does not fear persecution in one of those countries.
In general, refugees are processed outside of the country in which they were persecuted or have a well-founded fear of persecution. However, under limited circumstances authorized by the President, the USRAP processes refugees in their home countries.
An individual seeking refugee status must be admissible to the United States. However, sections 212(a)(4), (5), and (7)(A) of the INA do not apply to refugees. Notably, this includes inadmissibility on public charge grounds.
Refugees may also have applicable grounds of inadmissibility waived for humanitarian purposes. The only grounds of inadmissibility that may not be waived are those found in section 212(a)(2)(C) of the INA or 212(a)(3)(A), (B), or (C). The non-waivable provisions include inadmissibility for trafficking in controlled substance and inadmissibility on several terrorism and security related grounds.
As provided by 8 C.F.R. 207.1(c), those who qualify for immediate relative status or as a special immigrant are usually not processed as refugees. Such individuals will generally be advised to seek an immigrant visa as an immediate relative or special immigrant. The only exception in this case is if it is determined to be in the public interest that the individual be processed as a refugee. This provision exists in light of the annual refugee cap.
Spouse and Children
The spouse and unmarried child(ren) of a refugee who meets the admissibility requirements are eligible for refugee status. This applies even if the spouse or child would not otherwise qualify for refugee status. “Child” includes adopted children and step-children who meet the respective requirements to qualify as a “child” under the INA. A derivative refugee may accompany the principal or follow to join. In order to qualify as a child, the child must be under the age of 21. Provided that the application was filed before the child turned 21, he or she will continue to qualify while the application is pending even if he or she reaches age 21 during the process. A spouse is ineligible if the marriage does not qualify under the immigration laws, including if it is determined that the marriage was entered into for the purpose of circumventing the immigration laws. No other relatives except for spouses and children are eligible for derivative refugee status.
It is important to note that a derivative refugee may be approved for status from within the United States, in accord with 8 C.F.R. 207.7(f)(1).
Applying for Refugee Status
In order to apply for refugee status, an applicant must receive a referral to the USRAP. The United Nations High Commissioner for Refugees (UNHCR) may issue such referrals. Persons from groups identified by the United States Department of State (DOS) may also be referred to the USRAP. The refugee applicant must be from an area from which it was determined that refugees may be admitted in the fiscal year of the application.
In order to qualify for refugee status, the applicant must fall under one of the refugee processing priorities. The priorities, as detailed on the United States Citizenship and Immigration Services (USCIS) website at “The United States Refugee Admissions Program (USRAP) Consultation & Worldwide Processing Priorities,” are as follows:
1. Cases that are identified and referred to USRAP by UNHCR, a U.S. Embassy, or a designated non-governmental organization (NGO).
2. Groups of special concern identified by USRAP.
3. Family reunification cases.
A prospective refugee must meet one of the three processing priorities in order to be considered for an interview. However, meeting one of the priorities does not guarantee that the candidate will ultimately be granted refugee status.
The application for refugee status, after a referral, is filed on the Form I-590. If the applicant is 14 years of age or older, he or she must also file the Form G-325A (biographic information and fingerprints). Refugee applicants must undergo a medical examination. Refugee applicants must also secure a sponsor, either a person or a refugee resettlement organization. See 8 C.F.R. 207.1 and 207.2.
In the event that a refugee application is approved, the refugee applicant will have four months to present him or herself for admission to the United States under 8 C.F.R. 207.4. If the individual fails to seek admission, the application may be considered invalid.
Refugee Status and Adjustment of Status
A refugee is provided with an employment authorization document. Refugees are authorized for employment incident to status. Refugees must procure travel documentation before traveling from the United States. Accordingly, an individual on refugee status should consult with an experienced immigration attorney before travel. Travel to the refugee’s country of nationality may, depending on circumstances, call the refugee’s status into question.
A refugee is required to apply for adjustment of status one year after entry as a refugee under section 209(a)(1) of the INA. This applies to derivative refugees as well. If adjustment of status is granted, the refugee will become an alien lawfully admitted for permanent residence. If adjustment is denied, the refugee will be returned to Department of Homeland Security (DHS) custody where he or she will be treated as an applicant for admission to the United States under section 209(a)(1)(C). There are no grounds for appeal from a denial of the adjustment application, but the individual may seek relief from removal in accord with 8 C.F.R. 209.1(e).
A refugee may lose status and be subject to removal if the USCIS determines that he or she did not in fact meet the definition of “refugee” when he or she was admitted, under section 207(c)(4) of the INA.
Under sections 207(a) and (e) of the INA, the President, after consultation with Congress, sets refugee admissions targets at the beginning of each fiscal year. This generally constitutes a cap on refugee admissions for the fiscal year.
Under section 207(b) of the INA, in the event of an “unforeseen emergency” arising during the fiscal year, the President, after consulting with Congress, may determine that certain individuals should be admitted as refugees in response to the emergency refugee situation. Under this procedure, the President may determine that certain refugees should be processed within their countries of nationality.
Current Situation With Respect to President Trump’s Executive Order 13780
On March 6, 2017, President Donald Trump signed Executive Order 13780. On June 26, 2017, the Supreme Court of the United States upheld in part its provisions suspending USRAP for a period of 120 days. The provision also lowered the cap for refugee admissions for fiscal year 2017 to 50,000 (this has already been exceeded).
The details of the scope of the suspension are still being litigated. As of August 2, 2017, refugee applicants who have a bona fide relationship to a U.S. person or entity are still eligible for processing and admission, notwithstanding the provisions of Executive Order 13780. The situation remains fluid, and those who may be affected should consult with an experienced immigration attorney for case-specific guidance. It is yet to be known how the Supreme Court will ultimately resolve the case, and whether President Trump will choose to extend some of the restrictions or implement new restrictions after the suspension set forth in Executive Order 13780 expires.
Seeking refugee status is a complicated process. Those interested in seeking refugee status or who want to inquire about family members abroad may consult with an experienced immigration attorney and/or an organization specializing in assisting refugees for guidance. Individuals in the United States on refugee status should consult with an attorney regarding adjustment, travel, and/or derivatives.
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