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Jailing Refugees
December 29, 2009

Appendix: Human Rights Watch’s Proposed Legislative Modifications to INA §§ 207-209

8 U.S.C.A. § 1157

INA 207

§ 1157 Annual admission of refugees and admission of emergency situation refugees

(a) Maximum number of admissions; increases for humanitarian concerns; allocations

...

(2) Except as provided in subsection (b) of this section, the number of refugees who may be admitted as lawful permanent residents under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.

...

(b) Determinations by President respecting number of admissions for humanitarian concerns

If the President determines, after appropriate consultation, that (1) an unforeseen emergency refugee situation exists, (2) the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concerns or is otherwise in the national interest, and (3) the admission to the United States of these refugees cannot be accomplished under subsection (a) of this section, the President may fix a number of refugees to be admitted to the United States as lawful permanent residents during the succeeding period (not to exceed twelve months) in response to the emergency refugee situation and such admissions shall be allocated among refugees of special humanitarian concern to the United States in accordance with a determination made by the President after the appropriate consultation provided under this subsection.

(c) Admission by Attorney Generalthe Secretary of Homeland Security[65] of refugees as lawful permanent residents; criteria; admission status of spouse or child; applicability of other statutory requirements; termination of refugee status of alien, spouse or child

(1) Subject to the numerical limitations established pursuant to subsections (a) and (b) of this section, the Attorney GeneralSecretary of Homeland Security may, in the Attorney General'sSecretary’s discretion and pursuant to such regulations as the Attorney GeneralSecretary may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under paragraph (3) ) under this chapter. Any alien so admitted shall, notwithstanding any numerical limitations specified in this Act, be regarded as a refugee lawfully admitted to the United States for permanent residence as of the date of such alien’s arrival in the United States.[66]

(2)(A) A spouse or child (as defined in section 1101(b)(1)(A), (B), (C), (D), or (E) of this title) of any refugee who qualifies for admission as a lawful permanent resident under paragraph (1) shall, if not otherwise entitled to admission under paragraph (1) and if not a person described in the second sentence of section 1101(a)(42) of this title, be entitled to the same lawful permanent resident admission status as such refugee if accompanying, or following to join such refugee and if the spouse or child is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this chapter.[67] Upon the spouse's or child's admission to the United States, such admission shall be charged against the numerical limitation established in accordance with the appropriate subsection under which the refugee's admission is charged.

(B) An unmarried alien who seeks to accompany, or follow to join, a refugee parent granted lawful permanent resident statusadmission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.

(3) The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this subsection, and the Attorney GeneralSecretary of Homeland Security may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Any such waiver by the Attorney GeneralSecretary shall be in writing and shall be granted only on an individual basis following an investigation. The Attorney GeneralSecretary shall provide for the annual reporting to Congress of the number of waivers granted under this paragraph in the previous fiscal year and a summary of the reasons for granting such waivers.

(4) The refugee status of any alien (and of the spouse or child of the alien) may be terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe if the Attorney General determines that the alien was not in fact a refugee within the meaning of section 1101(a)(42) of this title at the time of the alien's admission.

(4) Aliens (and the spouses and children of such aliens) admitted as lawful permanent residents under paragraphs (c)(1) and (c)(2)(A) retain their protected status as refugees within the meaning of section1101(a)(42) until naturalization under section 1427 unless the Secretary of Homeland Security determines that [68]

(A)  the alien was not in fact a refugee within the meaning of section 1101(a)(42) of this title at the time of the alien's admission; [69]

(B)  the alien no longer meets the conditions described in section 1101(a)(42) of this title owing to a fundamental change in circumstances; [70]

(C)  the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; [71]

(D)  the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality;

 

(E)  the alien was firmly resettled in another country prior to arriving in the United States;

(F)    the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

(G)  the alien, havinghas been convicted by a final judgment of a particularly serious crime, and constitutes a danger to the community of the United States;[72]

(H)  there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

(I)    there are reasonable grounds for regarding the alien as a danger to the security of the United States:

(i) the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General Secretary of Homeland Security determines, in the Attorney General's Secretary’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.

(5) Removal when refugee status is terminated

An alien described in subclauses (A)(B)(C)(D)(E)(F)(G)(H)(I) of paragraph (4) loses protected refugee status but retains lawful permanent resident status.[73] Such alien is then subject to any applicable grounds of inadmissibility or deportability under section 1182(a) and 1227(a) of this title, and the alien's removal or return shall be directed by the Attorney GeneralSecretary of Homeland Security in accordance with sections 1229a and 1231 of this title.

 ...

8 U.S.C.A. § 1158

INA 208

§ 1158 Asylum

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

...

(b) Conditions for granting asylum

(1) In general

(A) Eligibility

The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.

...

(2) Exceptions

(A) In general

Paragraph (1) shall not apply to an alien if the Attorney General determines that-

(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

(ii) the alien, havinghas been convicted by a final judgment of a particularly serious crime, and constitutes a danger to the community of the United States;[74]

(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;

(v) the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or

(vi) the alien was firmly resettled in another country prior to arriving in the United States.

...

(3) Treatment of spouse and children

(A) In general

A spouse or child (as defined in section 1101(b)(1) (A), (B), (C), (D), or (E) of this title) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status of refugee lawfully admitted to the United States for permanent residence as the alien granted asylumthe alien if accompanying, or following to join, such alien.

(B) Continued classification of certain aliens as children

An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 1159(b)(3) of this title, if the alien attained 21 years of age after such application was filed but while it was pending.

(c) Asylum status

(1) In general

In the case of An alien granted asylum under subsection (b) of this section, the Attorney Generalshall, notwithstanding any numerical limitation specified in this Act, be regarded as a refugee lawfully admitted to the United States for permanent residence as of the date on which such alien was granted asylumprovided that such alien is admissible (except as otherwise provided under paragraph (2)[75] as an immigrant under this chapter at the time of granting of asylum.[76]

(2) The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien granted asylum in the United States under this subsection, and the Attorney General or the Secretary of Homeland Security may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Any such waiver by the Attorney General or the Secretary shall be in writing and shall be granted only on an individual basis following an investigation. The Attorney General or the Secretary shall provide for the annual reporting to Congress of the number of waivers granted under this paragraph in the previous fiscal year and a summary of the reasons for granting such waivers.

(A) shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;

(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and

(C) may allow the alien to travel abroad with the prior consent of the Attorney General.

(2) Termination of asylum

Asylum granted under subsection (b) of this section does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that-

(3) Protected refugee status for aliens granted asylum

Aliens granted asylum under subsection (b) of this section (and the spouses and children of such alien) and admitted as lawful permanent residents under paragraph (c)(1) of this section retain their protected status as refugees within the meaning of section1101(a)(42) until naturalization under section 1427.

(4) Exceptions

The protected refugee status of an alien granted asylum and admitted as a lawful permanent resident may be terminated if the Attorney General determines that

(A)  the alien was not in fact a refugee within the meaning of section 1101(a)(42) of this title at the time the alien was granted asylum; [77]

(B)  the alien no longer meets the conditions described in subsection (b)(1) of this section owing to a fundamental change in circumstances;

(C)  the alien meets a condition described in subsection (b)(2) of this section;

(D)   the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection; [78]

(D) the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country;

(E)  the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.

(5) Removal when protected refugee statusasylum is terminated

An alien described in paragraph (4) forfeits protected refugee status but retains lawful permanent resident status. Such alien is then subject to any applicable grounds of inadmissibility or deportability under section 1182(a) and 1227(a) of this title, and the alien's removal or return shall be directed by the Attorney General in accordance with sections 1229a and 1231 of this title.

8 U.S.C.A. § 1159

INA 209

§ 1159 Adjustment of status of refugees

(a) Criteria and procedures applicable for admission as immigrant; effect of adjustment

(1) Any alien who has been admitted to the United States under section 1157 of this title-

(A) whose admission has not been terminated by the Secretary of Homeland Security or the Attorney General pursuant to such regulations as the Secretary of Homeland Security or the Attorney General may prescribe,

(B) who has been physically present in the United States for at least one year,

and

(C) who has not acquired permanent resident status,

shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 1225, 1229a, and 1231 of this title.

(2) Any alien who is found upon inspection and examination by an immigration officer pursuant to paragraph (1) or after a hearing before an immigration judge to be admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of the alien's inspection and examination shall, notwithstanding any numerical limitation specified in this chapter, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien's arrival into the United States.

(b) Maximum number of adjustments; recordkeeping

The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who-

(1) applies for such adjustment,

(2) has been physically present in the United States for at least one year after being granted asylum,

(3) continues to be a refugee within the meaning of section 1101(a)(42)(A) of this title or a spouse or child of such a refugee,

(4) is not firmly resettled in any foreign country, and

(5) is admissible (except as otherwise provided under subsection (c) of this section) as an immigrant under this chapter at the time of examination for adjustment of such alien.

Upon approval of an application under this subsection, the Secretary of Homeland Security or the Attorney General shall establish a record of the alien's admission for lawful permanent residence as of the date one year before the date of the approval of the application.

(c) Applicability of other Federal statutory requirements

The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

[65] The change from Attorney General to Secretary of Homeland Security is a technical amendment that reflects current usage and practice.

[66] Admitting refugees with lawful permanent resident status will benefit the refugees themselves, as they will no longer have to wait one year before adjusting their status, and will also benefit the Department of Homeland Security, by eliminating the processing of thousands of adjustment applications each year. Refugees already undergo inspection for admission as part of being examined and processed for refugee status and U.S. resettlement, and the subsequent examination and processing of adjustment applications is largely duplicative.

[67] This provision recognizes the special needs of refugees to reunify families that are often separated in the course of their persecution, flight from persecution, and onward movements. Even after adjusting to lawful permanent resident status, this provision will allow refugees to continue—as in present practice—to petition for relatives to join them using the I-730 form and not only the I-130 form used by lawful permanent residents that often results in long delays for family reunification.

[68] This provision brings U.S. law into conformity with international refugee law, under which refugee status ceases only when the refugee “has acquired a new nationality, and enjoys the protection of his new nationality.” (art. 1.C(3).) The Refugee Convention further holds that contracting states shall “make every effort to expedite naturalization proceedings” for refugees (art. 34). Ironically, although lawful permanent resident status is a necessary step toward naturalization, in certain instances it has had the anomalous effect of stripping individuals of protections they had enjoyed as refugees. (See Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004).)

[69] Under current law, this is the only basis upon which refugee status can be terminated in U.S. law. (INA § 207(c)(4)).

[70] This and the following subclauses makes the termination of refugee status the same for refugees whether they are admitted under INA section 207 or granted asylum under INA section 208 and brings the grounds of cessation and exclusion into conformity with international refugee law.

[71] Casual returns to the country of origin, such as a brief family visit, would not forfeit refugee status. International refugee law holds that refugee status ceases only when the refugee has voluntarily “re-established himself” in the country he left (art. 1(c)(4) or has voluntarily re-availed himself of the protection of the country of his nationality.

[72] In Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, Human Rights Watch has previously called for this change in the INA, arguing the need for a two pronged test prior to removal of a refugee: first to examine both the seriousness of the crime committed and then to separately assess the future danger such refugee represents to the community of the United States. The July 2007 report is accessible at: http://www.hrw.org/en/reports/2007/07/16/forced-apart-0.

[73] Before initiating removal proceedings to send a lawful permanent resident refugee back to a country where he or she could face a risk of serious harm, the burden would be on the government to first terminate refugee status before initiating removal proceedings. Refugees should not lose the right not to be returned to persecution merely because they are also recognized as lawful permanent residents.

[74] See Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, accessible at: http://www.hrw.org/en/reports/2007/07/16/forced-apart-0.

[75] The essential language on waivers for certain grounds of inadmissibility is taken from INA section 209 (b)(5) and (c).

[76] This amendment establishes that whether refugees are inspected and admitted from overseas or inspected and granted asylum in the United States, all individuals recognized as refugees will enjoy the same rights and benefits.

[77] This additional ground for termination of refugee status, applicable to a person granted asylum, is intended to bring into conformity the provisions relating to termination of refugee status for admitted refugees under INA section 207 and for persons granted asylum under INA section 208.

[78] This subclause is deleted because it does not relate to cessation of refugee status in international refugee law and would more appropriately be a consideration at the time of deciding an asylum claim rather than during termination of the status of a person already recognized as a refugee, as suggested in INA section 208(a)(2)(A).