INS Notice on Derivative Refugee Status
[Notices]
[Page 43957-43958]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17au98-99]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1903-98]
Overseas Refugee Processing; Derivative Refugees
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Notice.
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SUMMARY: This notice informs the public and organizations that assist overseas refugee applicants that the Immigration and Naturalization Service (Service) will grant derivative refugee status under section 207(c)(2) of the Immigration and Nationality Act (the Act) only to a person who is the spouse or child of a refugee who qualifies for admission under section 207(c)(1) of the Act. This is a change from the current practice in some U.S. programs of admitting a qualifying refugee's other family members to the United States as derivative refugees. These other family members may still be processed as part of the same case as the principal refugee, but must now establish refugee eligibility in their own right under sections 101(a)(42) and 207(c)(1) of the Act. This action is necessary to avoid the granting of derivative refugee status to persons without a statutory basis. This notice also informs the public that those persons approved for admission to the United States as derivative refugees under section 207(c)(2) may not be admitted to the United States unless they accompany the principal refugee to the United States or follow to join the principal refugee in the United States.
DATES: This notice is effective September 16, 1998.
FOR FURTHER INFORMATION CONTACT: Karen McCoy, Immigration Officer, Immigration and Naturalization Service; 425 I Street, NW, Washington, DC 20536, Attn: ULLICO Bldg., 3rd Floor, Phone: (202) 305-2760.
SUPPLEMENTARY INFORMATION: The Service has become aware that some of its current practices in processing refugee applications have resulted in the granting of derivative refugee status to persons without a statutory basis. The Service has also admitted to the United States persons who have been approved
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for derivative refugee status but are not accompanying or following to join the principal applicant, as required under section 207(c)(2) of the Act.
Qualifying for Derivative Refugee Status
Section 101(a)(42) of the Act defines a refugee as a person who is unable or unwilling to return to (or under circumstances specified by the President to remain in) his or her country of origin ``because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'' The Act provides two means by which a person may be admitted to the United States with refugee status. Section 207(c)(1) of the Act allows the Attorney General, within certain numerical limitations set by the President, to admit to the United States as refugees, persons who apply for refugee status from abroad and who are determined to meet this definition. Persons who qualify as refugees under section 101(a)(42) of the Act are often referred to as principals, principal refugees, or principal applicants. Subject to the numerical limitations established pursuant to subsections 207(a) and (b) of the Act, section 207(c)(2) entitles eligible spouses and children, defined in section 101(b)(1) of the Act as unmarried children under the age of 21, of any refugee who qualifies for admission under section 207(c)(1) of the Act to be admitted with refugee status if accompanying or following to join the principal refugee. Spouses and children who accompany or follow to join a principal refugee under section 207(c)(2) are often referred to as derivatives or derivative refugees. These are the only means provided for in the Act by which a person may be admitted with refugee status.
The plain language of section 207(c)(2) of the Act provides for only spouses and children to derive refugee status from a principal refugee. There is no basis in law to expand the category of persons who may derive refugee status. Accordingly, persons other than spouses and children, as defined in section 101(b)(1) of the Act, of a principal refugee are not eligible for derivative refugee status and must qualify as principal refugees under sections 101(a)(42) and 207(c)(1) of the Act in order to be admitted to the United States with refugee status.
Because section 207(c)(2) of the Act requires that a derivative refugee accompany or follow to join the principal refugee, a person approved for derivative refugee status as the spouse or child of a principal refugee may not be admitted to the United States prior to the admission of the principal refugee.
Eligibility for Service Interview
While the statute is clear on who can derive refugee status, the Service realizes there may be humanitarian reasons to include in a case unit other individuals who cannot derive refugee status, such as an elderly parent or an unmarried adult son or daughter. As these persons cannot statutorily derive refugee status from the principal applicant, they must qualify as refugees in their own right. However, such individuals may be given a refugee interview as long as they are household members and are part of the same economic unit as the interviewed principal refugee applicant. In such cases these individuals are not required to fall within a designated processing priority to gain access to the U.S. refugee program, as they may be accorded the same priority as the principal applicant.
Lautenberg Amendment
When processing refugee cases under the special adjudication procedures based on section 599D of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167 dated November 11, 1989, Amendment 290 known as the Lautenberg Amendment, the Service officer must determine whether additional family members qualify for category membership under the Lautenberg Amendment. In an April 24, 1990 memorandum, the Attorney General specified that certain persons who are not themselves category members may be adjudicated as if they were category members. According to this memorandum, persons who are members of the same household and/or are economically dependent on a category applicant, are physically present with the category applicant at the time of the interview, and would be traveling with the category aplicant will be considered category applicants for purposes of adjudication of their refugee claims. Accordingly, applications by persons who fall within these criteria may be adjudicated under the reduced evidentiary burden of the Lautenberg Amendment.
Dated: July 28, 1998.Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-21948 Filed 8-14-98; 8:45 am]
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