Can DHS Take Away My Asylum Status ?

Yes they can! While there are many factors which determine whether or not DHS will take such drastic action, all asylees should be aware that asylum is not a permanent status and can be terminated.

Section 208(c)(2) of the Immigration and Nationality Act (I.N.A.) states very clearly that a grant of asylum “does not convey a right to remain permanently in the United States.”

The relevant regulations can be found at 8 C.F.R. 208.24 and list several reasons for termination, including fraud in the original application and an asylee no longer fearing persecution because of changed country conditions.

There are actually two processes by which DHS can try to have your asylum status terminated, depending on whether you received asylum from U.S. Citizenship and Immigration Services (USCIS) by applying affirmatively (you or your representative filed an application when you were not in removal proceedings) or defensively (you were in removal proceedings and used asylum as a defense). Whether or not your application was filed before or after April 1st, 1997 is also an important factor.

If DHS/USCIS granted you asylum

If a USCIS Asylum Officer granted you asylum, but USCIS later decides that you did not deserve it or no longer qualify, they must notify you in writing that they intend to terminate your status, schedule an interview where the reasons are explained to you, and give you an opportunity to rebut those reasons.

The interview must take place at least 30 days after that written “Notice of Termination” is issued.

If the interviewing officer decides to terminate, the regulation requires her to place you in removal proceedings. Any derivatives (spouse/children) who derived their asylum status through you will also have their asylum terminated, although they can file their own applications for asylum if they qualify independently of you.

The DHS termination procedure seems to violate basic due process, since the agency which granted the asylum is also allowed to take it away without any opportunity for judicial review. Even though you could re-apply for asylum in removal proceedings, you would have to wait years for a hearing in immigration court, and in the meantime your work authorization and travel documents would expire. While these can be renewed in most cases, there would certainly be a gap in employment eligibility.

More importantly, you would have no lawful immigration status.

It is far from certain that an IJ would approve a subsequent asylum application if the first one was terminated due to alleged fraud in the application. At your hearing the DHS attorney would most certainly introduce whatever evidence of fraud led to the termination of your status, and the IJ would have to decide if she believes that you filed a genuine application. You would also run afoul of the one year deadline for asylum filings since your case would presumably come before the IJ several years after your last entry to the U.S. These are substantial obstacles to overcome.

Unfortunately, the Board of Immigration Appeals held in Matter of A-S-J, 25 I&N Dec. 893 (BIA 2012) that Immigration Judges do NOT have the power to review DHS’s decision to terminate asylum status. This opinion is binding on Immigration Judges in every state, unless a federal court decides that it is wrong. So far, only the Ninth Circuit has held that the DHS termination procedure is contrary to Congress’ intent: that only the Attorney General (i.e. Immigration Judges in the Department of Justice) has the power to terminate asylum status; Nijjar v Holder, 689 F.3d 1077 (9th Cir. 2012)

The Court did not agree with DHS that they should infer that Congress wanted both agencies to have the power to terminate:

It is even more difficult to imagine that Congress intended so important a determination as terminating asylum status for fraud to be an unreviewable decision, made by an officer below the level of, and without the independence of, an immigration judge, on the basis of an informal interview.”

As someone who has attended several of these interviews at the New York Asylum Office, I find the Ninth Circuit’s view very persuading, although the Second (New York, Connecticut), Third (New Jersey, Pennsylvania) and Fifth Circuits (Texas, Mississippi, and Louisiana) do not. Rulings of the Ninth Circuit only apply within that Circuit, so DHS may no longer unilaterally terminate a person’s asylum status in that jurisdiction.

Termination interviews are naturally confrontational, but it is still always clear to me that USCIS has made up its mind to pursue termination to the bitter end no matter what evidence we proffer to rebut the fraud allegations.

When the decision to terminate has more to do with the agency saving face than actually reviewing the merits of an asylum case, it is clear why Congress would surely have intended that a neutral arbiter like an Immigration Judge should be able to review that decision.

If the Immigration Judge granted you asylum

In this case, 8 C.F.R. 208.24 requires DHS to file a motion with the Immigration Judge to reopen your case with a view to terminating it; they cannot unilaterally terminate a grant of asylum issued by an Immigration Judge. This gives the asylee some protection, since the IJ does not have to grant that motion.

-By Alexandre Law Firm

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