Asylees are able to adjust status after one year from the grant of asylum status pursuant to INA §209(b). But what happens to that asylum status after adjustment? The Board of Immigration Appeals (BIA) recently answered that question where it held that after an asylum seeker adjusts status to become a lawful permanent resident, the prior asylum status has “terminated.” Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017).

Factual and Procedural History

Mr. Ali, the respondent in Matter of N-A-I, is from Pakistan and received asylum in 1992.  He subsequently adjusted status to LPR. In 2013, Mr. Ali was convicted of cocaine possession, which landed him in removal proceedings. The Immigration Judge barred Mr. Ali from readjusting his status, so he reapplied for asylum, withholding of removal and relief under the Convention Against Torture, all of which the IJ denied. Mr. Ali appealed to the BIA arguing that he could not be removed to Pakistan because he continues to be an asylee and have a fear of persecution, regardless of the fact that he adjusted his status to become an LPR.

The BIA denied his appeal relying primarily on its prior decision in Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014). In that case, the BIA concluded that an asylee from China, who had adjusted status and later was convicted of a deportable offense, could not readjust status in immigration proceedings. The BIA relied on its interpretation of INA §209(b), which authorizes asylees to adjust status after one year of asylum status. The BIA reasoned that since the respondent had already adjusted status, and was no longer an asylee, he was ineligible to readjust status before the immigration judge. The BIA analogized INA §209(a), which allows refugees to adjust status only if they don’t already have LPR status, thus prohibiting readjustment, with INA § 209(b), which authorizes asylum adjustment but is silent on readjustment. 

One of the legal issues at play in this analysis is the way refugees (who are granted refugee status abroad and arrive to the United States after the resettlement process) and asylees (who are granted asylum status in the United States) are equated under the INA. The BIA relied on the legislative history of Refugee Act of 1980, which made clear that refugees and asylees should be treated on par with one another. It concluded that INA § 209(b) implicitly prohibits asylees to readjust status because they lose their asylum status when they become LPRs. The BIA reasoned that the opposite interpretation would allow refugees and asylees to be treated unequally.

Following the dismissal of his appeal, Mr. Ali petitioned for review before the Court of Appeals for the Fifth Circuit. In Ali v. Lynch, 814 F.3d 306 (5^th Cir. 2016), the appellate court concluded that the BIA erred in several ways in relying on Matter of C-J-H. The Fifth Circuit held that the BIA did not thoroughly interpret INA §§ 209(a) and (b), and more importantly, it failed to even consider INA § 208(c), which explicitly prohibits removal or deportation of an asylee to their country of fear persecution unless formal asylum termination proceedings are completed. The court further held the BIA failed to consider the DHS’s regulations, which suggest asylum status may not be terminated after adjustment of status, and to thoroughly evaluate its interpretation of the similarities and differences between refugee and asylum status.

The BIA’s Holding in Matter of N-A-I-

Upon remand from the Fifth Circuit, the BIA’s decision remained unchanged. The BIA continued to hold that Mr. Ali’s asylum status terminated when he adjusted status to become an LPR under INA §209(b). Matter of N-A-I-, 27 I & N Dec. 72 (BIA 2017). First, the BIA reasoned that the asylum termination provisions listed in INA § 208(c)(2) are not necessarily exhaustive. Second, the BIA concluded that once asylees adjust status under INA § 209(b), they are now LPRs and are no longer protected under the INA § 208(c) restrictions from removal for asylees. Third, the BIA noted that once asylees adjust status, they are not necessarily adding permanent resident status to their already asylum status, but rather they are changing status to LPR. The BIA relied on Mahmood v. Session, 849 F.3d 187 (4^th Cir. 2017), where court interpreted adjustment of status under INA § 209(b) as a voluntarily surrender of asylum status. The Fourth Circuit interpreted adjustment under INA § 209(b) as “a change to and not an accretion of the second status.” Finally, the BIA stated that adjusted asylees in removal proceedings are always able to reapply for asylum (unless prevented by the one-year filing deadline), withholding of removal and relief under the Convention Against Torture.

What this means for Asylees

The BIA’s decision is troublesome in two regards. First, the BIA’s reasoning in Matter of N-A-I seems to suggest that asylees have a voluntary choice: either remain asylees indefinitely so that they can never be deported to the country of feared persecution; or adjust status and move forward on the path of citizenship, but relinquish asylum protections and risk potential deportation to the country from which they sought refuge. Nevertheless, asylees are not warned when they file an adjustment application that they are surrendering statutory protections afforded under the Refugee Act of 1980. Second, the BIA has been solely focused on statutory interpretation and does take into account whether an asylee continues to have a fear of persecution after they adjust status. Presumably, most do have a fear, which is why formal termination procedures under INA § 208(c) should be the only mechanism for terminating their status. This case will most likely end up back at the Fifth Circuit; if so, it will be interesting to see if the appellate court gives deference to the BIA’s interpretation of the INA.