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Updates and Tips on Asylee and Refugee Cases from the Fifth Conference on Effective Representation of Asylees and Refugees

By Jennie Guilfoyle

On March 6-7, 2012 CLINIC, along with nine other co-sponsoring organizations, hosted the Fifth Conference on Effective Representation of Asylees and Refugees in Omaha, Nebraska at the Creighton University School of Law.  The conference culminated on March 8th with a tour of the Nebraska Service Center.  Numerous government speakers attended, from USCIS Headquarters, the Department of State, and the Nebraska and Texas Service Centers.

In attendance were more than 90 participants from CLINIC affiliates and other nonprofit agencies throughout the country, including refugee resettlement organizations.  Participants came from 26 states and Washington, DC.  The conference included three plenary sessions, numerous breakout workshops, and a final open Question and Answer session with staff from the Nebraska and Texas Service Centers.  The three plenary sessions were: “Where We Are Now: Major Issues Facing Refugees and Asylees”; “Family Reunification for Asylees and Refugees”; and “Terrorism-Related Grounds of Inadmissibility.”

The following are some of the most important information and filing tips we learned during the conference:

Asylee and Refugee Adjustment of Status

Correcting Errors in Previously-Filed I-485.  Both the NSC and TSC request that practitioners who wish to correct previously-filed I-485s contact the Service Center directly.  Corrections for cases at the TSC may be sent to: asylum.tsc@uscis.dhs.gov.  Corrections for cases at the NSC may be sent to the Nebraska Service Center, P.O. Box 82521, Lincoln, NE.  Always include the “A” number and receipt number of the case in question.

Changed Country Conditions.  The Service Centers do not consider changed country conditions as part of their adjudication of asylee and refugee adjustments.  Thus, a refugee who entered the United States 20 years ago and has not yet applied to adjust should not be concerned about changed country conditions.  The one way that changed country conditions could affect an asylee adjustment applicant would be if the asylee has travelled back to the country of claimed persecution since the grant of asylum.

Travel Back to Country of Persecution.  Refugees are generally not impacted by travel back to the country of persecution, according to the NSC, because the statute does not require that refugees maintain a well-founded fear of persecution at the time of adjustment.  Asylees, however, may be impacted by a return to the country of persecution, because under INA § 209(b)(3) an asylee must “continue to meet the definition of a refugee” in order to adjust status.  Thus, when the Service Center encounters an asylee adjustment applicant who has returned to the country of persecution, the officer will consider how long the asylee was in that country, and what he or she did there, that might indicate that he or she no longer has a well-founded fear of persecution in that country.

Nunc Pro Tunc Asylum Applications.  Asylee derivatives who lose their relationship to the principal asylee, or who marry and no longer meet the definition of “child,” before they adjust status, must file a “nunc pro tunc” asylum application.  Only when this “nunc pro tunc” I-589 asylum application is approved may the derivative adjust status.  The NSC and TSC re-stated at the conference their policy of not facilitating nunc pro tunc asylum applications, nor of informing adjustment applicants about the nunc pro tunc process.

Waivers

Aside from the terrorism-related grounds, the most common inadmissibility issues for asylees are entry without inspection, fraud and misrepresentation, and crimes.  For refugees (who because they are initially admitted in refugee status, rarely have EWI or fraud issues), crimes top the list.  Now that HIV no longer gives rise to inadmissibility, health-related issues are much rarer.  The Service Centers can and regularly do adjudicate waivers for EWI and fraud – sometimes without requiring the submission of an I-602 waiver – but in any case with any kind of criminal issue, both the NSC and the TSC will send the case to the local district office for adjudication.  This is true whether or not there is a conviction, and if there is, whether or not that conviction gives rise to inadmissibility.

Submission of I-602s.  The NSC recommended that practitioners not send an I-602 waiver application until the NSC has specifically requested one.  In many cases they are able to approve waivers without requiring an I-602.  The NSC said that they routinely approve waivers for asylees inadmissible for fraud or entry without inspection without an I-602.  Because the NSC generally does not adjudicate cases involving crime-based inadmissibility, will not approve waivers for health-based inadmissibility, and often approves waivers for fraud and entry without inspection without an I-602, they rarely adjudicate I-602s.

Cases With Any Criminal History Will be Sent to District Office.  While the Service Centers have authority to adjudicate some waiver-eligible cases without requiring the submission of an I-602, that does not include cases with a criminal history.  Where an asylee or refugee has any criminal history – even if that history does not lead to inadmissibility – the Service Centers stated that they will send the case to the local district office for adjudication.  The only exception to this policy is where an applicant has been convicted of a violent crime, in which case the Service Center may adjudicate the case in order to deny it.

Health-Related Inadmissibility.  The NSC stated that where an applicant is inadmissible under one of the health-related inadmissibility grounds at INA § 212(a)(1), it will not approve a waiver, but will instead require that the applicant get treatment so that he or she is no longer inadmissible.

I-730s

Previously Undisclosed Spouse or Child.  The Service Centers place a great deal of weight on whether or not a spouse or child was listed on the I-589 (asylum application) or I-590 (refugee application).   If an asylee or refugee wants to file an I-730 for a spouse or child who was not previously disclosed – on the initial refugee or asylum application, and/or an adjustment application – he or she should provide a detailed explanation of why that spouse or child was not disclosed earlier.  Such an omission is not necessarily fatal to the I-730, but will need to be carefully explained by the applicant.

Determining Who is a Principal Refugee.  Only principal refugees and asylees may file I-730s, so it is crucial to know if your client is a principal or a derivative.  For asylees, this is usually very easy to determine, but it can be more complicated for refugees. 

Other than filing a FOIA for the I-590 refugee application, several participants at the conference pointed out that the biodata sheet for refugee entrants contains important information about refugee case composition, and can help an advocate determine who was a principal on a particular case and who was a derivative.  The local refugee resettlement agency that initially resettled the refugee family would have received this sheet prior to the family’s arrival.  It lists all the members of a particular case, and has a section that says “relationship.”  When the person is the Principal Applicant (PA) on a case, that section will read “relationship: PA.”

DNA Testing.  Given the difficulties many asylees and refugees face in obtaining birth certificates from the countries they have fled, applicants may often either be required to present, or wish to affirmatively present, DNA evidence of a parent-child relationship.  The NSC noted that they do not want to receive unsolicited DNA evidence, in part because they can only accept testing done at certain laboratories.  They advised that if an advocate wishes to present DNA evidence, that he or she include a request with the initial I-730 filing that the NSC request DNA.  When asked directly if advocates can ever present unsolicited DNA testing, the NSC responded that they need guidance from Headquarters on this.

The NSC staff also reminded participants that USCIS cannot extend the time to respond to an RFE while an applicant waits for DNA testing results.  The Service Centers will therefore deny the underlying application of an applicant who does not respond to the RFE by the RFE deadline.  If the DNA testing results become available after the denial, the NSC stated that it will usually do a Service motion to reopen the case.

Filing After the Two-Year Filing Window.  Asylees and refugees have two years, by statute and regulation, to file an I-730 for a derivative spouse and/or children.  It is possible for the USCIS to extend this deadline for humanitarian reasons.  The NSC reiterated at the conference that this determination is completely discretionary and up to the adjudicator, and that all such determinations are made on a case-by-case basis.

Several conference participants reported success in locating previously-missing client family members using the Red Cross Family Tracing Service: http://www.redcross.org/www-files/Documents/International%20Services/Fact_Sheet_Restoring_Family_Links.pdf

I-730 Beneficiaries Who Enter the U.S. other than via the I-730.  If the beneficiary of an approved I-730 enters the U.S. without inspection, or on a valid non-immigrant visa – in other words, not pursuant to the approved I-730 – the Nebraska Service Center recommends that he or she contact the local district office via InfoPass to have biometrics taken and an I-94 issued showing that he or she is a derivative asylee.  If this does not work, try contacting either the Nebraska or Texas Service Center.

Terrorism-Related Inadmissibility Grounds (TRIG)

Procedures for Handling TRIG Issues at the NSC and TSC.  The NSC addressed this issue at the conference and explained that at both Service Centers, when adjudicators come across TRIG issues, they flag those in the file.  Those files are sent to other officers trained on TRIG exemptions.  Then those officers review the issue and determine whether or not there is a TRIG issue, and if so, whether or not there is an exemption available.  If there is an exemption it will be processed for the exemption.  If there is no exemption currently available, they decide whether to place it on hold until an exemption may become available. Tier I organizations are listed at: http://www.state.gov/j/ct/rls/other/des/123085.htm and Tier II organizations at http://www.state.gov/j/ct/rls/other/des/123086.htm.

The Service Centers generally do not issue RFEs on TRIG issues, although this is still an evolving procedure.  TRIG cases are sometimes referred out to the local district office for an interview.  If there is a gray area, there is a lot of consultation between the service center and the TRIG Working Group and/or Service Center Operations at USCIS Headquarters.

Notification of Applicants that Case is on Hold for TRIG.  At this time, there is no uniform process for informing applicants that their cases are on hold for TRIG-related issues.  Some participants at the conference reported receiving letters indicating that their cases were on hold for TRIG issues, without specifying exactly what issues they were.  If you believe that your client’s case may be on hold for TRIG, and the case has been pending at the NSC or TSC for more than four months, you can make an inquiry via either scopsscata@dhs.gov or trigquery@uscis.dhs.gov.  You can also use these email addresses to ask for more specifics as to exactly what the TRIG issue is in a client’s case.  Note that as with all queries to USCIS, you will need to have a G-28 on file in order to make this inquiry.

Determinations About Tier III Organizations.  Unlike Tier I and II terrorist organizations, there is no published list of Tier III terrorist organizations.  Determinations about which organizations qualify as Tier III, and during which time periods, are made by USCIS.  The conference speakers stressed that there is a great deal of internal USCIS communication around Tier III determinations, and that Tier III determinations can change over time, as new information comes to light.  When an adjudicator suspects that he or she is dealing with an organization not previously determined as a Tier III, the adjudicator will do some preliminary research, and then will forward that to the more seasoned officers trained on this issue, who will then review it.  The Service Center will then send that to Gareth Canaan,  at Service Center Operations in DC; the determination may then get elevated to the TRIG Working Group in DC. 

Denials for TRIG Issues.  TRIG denials are rare.  In the past five years, there have only been about ten.  Those denied have not yet been placed in removal proceedings.

Refugee Travel Documents

The NSC described their criteria for expediting refugee travel documents as “very lenient.”  They instructed advocates to write “EXPEDITE” in large letters on the top of the I-131 form, and to include documentation to support the expedite request.  The NSC noted that if an advocate includes a pre-paid express mailer in the application packet, the adjudicating officer will return the Refugee Travel Document in the express mailer.

Processing of Cases at the Nebraska Service Center

Asylee adjustment adjudications sometimes take longer than adjudication of refugee adjustments because asylees tend to have much larger A files than refugees.  A refugee’s A file usually contains notes from the refugee interview overseas along with the I-590, and the adjustment adjudicator will look at all of these.  Currently approximately 25-30 percent of asylees request fee waivers with their applications, and many of those are approved.

General Filing Tips from the NSC and TSC

The NSC and TSC had the following suggestions for filing successful petitions and applications:

• When filing applications for several family members at the same time, remember that each application needs to stand on its own, so include copies of all documents in each packet.

• When filling out forms, remember not to leave spaces blank.  Write “ none” or “N/A” instead of leaving a blank space.

When you are relying on secondary evidence in lieu of primary evidence, you must submit an explanation as to why there is no primary documentation.  Such an explanation would, at a minimum, consist of an affidavit or affidavits from someone with personal knowledge of why primary evidence is lacking.  Lack of such explanation is a common problem with cases submitted to the NSC.

• Remember that each RFE response stands on its own, so if you get RFEs on more than one member of a family asking for the same document, you must respond to each RFE separately, and supply a copy of the document(s) in response to each RFE.           

• A cover letter from the attorney or accredited representative on the case is not evidence, and cannot take the place of evidence.

Making Inquiries on Cases

The NSC recommends waiting until a case has been pending 30 days from posted processing times before sending an inquiry.  The case may be in the process of being approved and sent out, and the inquiry can remove it from that process and slow the process down.