Lautenberg Impact on Asylum Procedures
Date: October 6, 1995
From: Office of General Counsel
To: John W. Cummings
Acting Assistant Commissioner
CORAP
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I. QUESTION
Does the "Lautenberg Amendment," which governs the adjudication of certain overseas refugee applications made under section 207 of the Immigration and Nationality Act (INA), also govern the adjudication of asylum applications made under INA section 208?
II. SUMMARY CONCLUSION
The Lautenberg Amendment does not govern the adjudication of asylum applications made under INA section 208.
III. ANALYSIS
Section 101(a)(42)(A) of the INA defines a refugee as a person who is unable or unwilling to return to his country of origin "because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." INA section 207 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. Section 208 of the INA gives the Attorney General, subject to no numerical limitation, authority to grant asylum to an alien who is physically present in the United States or at a land border or port of entry and whom the Attorney General determines to meet the same refugee definition. Thus, both the asylum and the refugee provisions apply the same legal standard set out in section 101(a)(42)(A). Given the distinct contexts in which section 207 and section 208 operate, however, procedures under the two provisions differ.
Certain overseas refugee applications are governed by specific adjudication procedures established by section 599D of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. No. 101-167, 599D (1989), as amended. This provision, known as the Lautenberg Amendment, establishes, for the purpose of refugee status adjudications, certain narrowly defined categories of aliens who are or were nationals and residents of specified countries. A member of one of these categories "may establish, for the purposes of admission as a refugee under section 207 of the Immigration and Nationality Act, that the alien has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion by asserting such a fear and asserting a credible basis for concern about the possibility of such persecution." Id., 599D(a) (emphasis added.) This provision applies only to applications for refugee status submitted before October 1, 1996."* Id. 599D(a). Thus, in limited circumstances, Congress has directed that category members who apply during a certain period of time for refugee status under INA section 207 may establish a well-founded fear of persecution through a special evidentiary procedure.
The language of the Lautenberg Amendment, however, clearly limits its effect to overseas refugee status adjudications under section 207. There is no indication in the legislative reports that accompanied the enactment and extensions of the Amendment that Congress intended the special Lautenberg procedure to apply in the adjudication of asylum claims under section 208. See, H. Rep. No. 482, 103d Congr., 2d Sess, (1994); S. Rep. Nol 292, 102d Cong., 2d Sess. (1992); H. Rep. No. 569, 102d Cong., 2d Sess. (1992); H. Rep. No. 964, 102d Cong., 2d Sess. (1992); H. Rep. No. 585, 102d Cong., 2d Sess. (1992); S. Rep. No. 419, 102d Cong.. 2d Sess. (1992); S. Rep. No. 519 101st Cong., 2d Sess. (1990); H. Rep. No. 968, 101st Congr., 2d Sess. (1990); H. Rep. No. 344, 101st Cong., 2d Sess. 70-74 (1989). Therefore the special adjudication procedures of the Lautenberg Amendment do not apply to applications for asylum under INA section 208.
On May 27, 1992, this office issued a legal opinion addressing a similar question. To the extent that the 1992 opinion suggests that the Lautenberg Amendment should guide the evaluation of asylum claims under section 208, this opinion supersedes the earlier opinion.
David A. Martin
General Counsel
Footnote:
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* As originally enacted, the Lautenberg Amendment applied only to
applications made before October 1, 1990. Application of the
provision has been extended several times, most recently to
October 1, 1996 by 512(1)(B) of the Foreign Relations
Authorization Act, Fiscal Year 1994 and 1995, Pub. L. 103-236,
(1994).
[Editor's Note: The May 27, 1992, General Counsel's Opinion (92-27) is available as Reprint No: 47-1295.]
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