INS Advises on Asylum-Related Issues Raised by AILA

August 2, 1999

Memorandum For Regional Directors
District Directors
Officers-In-Charge
Chief Patrol Agents
Asylum Office Directors
Port Directors
Director, Policy Directives and Instructions
ODTF Glynco
ODTF Artesia

From: Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations

Subject: Asylum-Related Issues/AILA Meeting

The purpose of this memorandum is to provide guidance on two asylum-related issues that were raised during a recent liaison meeting with the American Immigration Lawyers Association (AILA).

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) added new bars to admissibility under the Immigration and Nationality Act (INA), triggered by previous periods of "unlawful presence." INA §212(a)(9)(B). Certain periods of time are not counted in determining the period of unlawful presence for purposes of INA §212(a)(9)(B)(iii)(II), including periods of unlawful presence accrued by aliens with bona fide asylum applications pending, unless the alien during such period, was employed without authorization in the United States. INA §212(a)(9)(B)(iii)(II). This memorandum deals only with the issue of pending asylum applications. Separate guidance is being developed concerning procedures for determining whether a pending asylum application is considered bona fide.

I. Pre-Reform Denied Asylum Claims

The asylum reform regulations became effective on January 4, 1995. Asylum applicants who filed their applications before that date are considered "pre-reform" applicants. AILA inquired whether pre-reform applicants whose applications were denied by INS may be considered to have their asylum applications "pending" for purposes of INA §212(a)(9)(B)(iii)(II) until they renew their applications when placed in proceedings.

The Service answered this question affirmatively. Prior to January 4, 1995, when asylum office denied a pre-reform applicant who was not in legal status, the office ordinarily issued an Order to Show Cause (OSC), placing the applicant in deportation proceedings, or a Form I-122, Notice of Alien Detained for Hearing Before and Immigration Judge, placing the applicant in exclusion proceedings. Due to administrative problems, however there were many cases where out-of-status applicants were denied asylum but were not placed in proceedings. Because of this, some applicants had no ability to obtain review of the denial or to renew their cases in immigration court. Therefore, the cases of these applicants will be considered pending for purposes of INA §212(a)(9)(B)(iii)(II) until decided by the immigration court. This interpretation is consistent with the Service’s decision to consider denied pre-reform asylum applications to have been filed before April 1, 1997, for purposes of the one-year asylum filing deadline rule, when such applications are renewed in immigration proceedings after April 16, 1998.

II. Pending Derivative Cases & Unlawful Presence

AILA inquired about the circumstances under which a derivative who is removed from a principal’s asylum application will no longer be considered to have a pending asylum application for purposes of INA 212(a)(9)(B)(iii)(II) unlawful presence.

The Service explained that there is no single answer that will fit all cases because derivative applicants are differently situated. INS considers that a derivative applicant’s case is no longer "pending" once a principal with a pending application notifies the asylum office that the derivative is no longer part of the principal's application, or this information otherwise comes to the attention of the asylum office, and the derivative is removed from the application in INS records. The usual scenario occurs when the principal is called in for the asylum interview and has a child who has aged out. If the child files as a principal within a reasonable time, INS considers the child’s filing date as nunc pro tunc to the date of the principal's filing (this allows immediate work authorization if the principal’s filing date was pre-reform). In these cases the child’s application as principal will be pending until it is granted or denied. The opposite end of the spectrum would be cases in which a derivative severs ties with the principal (for example, by divorce) and does not appear for the asylum interview or file within a reasonable time as a principal. In such cases the INS would remove the derivative from the application, and his or her case would no longer be "pending." The same would happen if the aged-out child above did not file his own application as a principal within a reasonable time. INS must examine these cases on a case-by-case basis to see if the asylum application is or was pending.

Please forward this guidance to all affected personnel at your offices.