Asylum Chat - January 22, 2016 Nunc Pro Tunc Asylum Presenter: Maggie Cheng Overview: In order to gain lawful permanent resident status based on a relationship to a principal applicant who was granted asylum, a derivative asylee must continue to meet the definition of a spouse or child of a refugee at the time USCIS adjudicates the application for lawful permanent resident status. If the derivative asylee no longer meets the definition of spouse or child, or the principal no longer meets the definition of a refugee, the derivative may not adjust his or her status to that of a lawful permanent resident based on that relationship. Although an individual may lose his or her ability to adjust status based on a spouse or child relationship to the principal, once asylum status is granted, an individual does not lose asylee status even if a principal/dependent relationship ends, unless USCIS or EOIR formally terminates asylum. The Asylum Program accepts new I-589 applications from these former dependents as principals under special procedures in order to create an avenue for individuals who have been recognized as asylees the ability to adjust status. - USCIS Nunc pro tunc now for then, retroactive application o Nunc pro tunc asylum comes up in the context of derivative asylee adjustment. Problem: Derivative asylee loses relationship to principal asylee (for reasons addressed below) and therefore cannot adjust status to LPR. Fix: Nunc pro tunc procedure allows derivative asylees in this situation to be granted asylum in their own right, and the grant applies retroactively to the date of the principal s grant or date of the former derivative s admission hence nunc pro tunc so that they can proceed with AOS. Only when the nunc pro tunc asylum application is approved may the derivative adjust status. (Given the timing, can usually adjust immediately once nunc pro tunc application is granted.) Asylee AOS Basic Requirements o Physically present in the US for at least 1 year after being granted asylum o Principal asylee continues to meet the definition of a refugee, or the derivative asylee continues to be the spouse or child of the principal asylee o Has not firmly resettled in any foreign country o Is admissible to the US as an immigrant at the time of adjustment, subject to various exceptions and waivers o USCIS Policy Manual Vol. 7, Part M, Ch. 2); see also INA 209(b)(3) Note: We don t really see nunc pro tunc issue with refugee adjustment because the requirements for refugee AOS are different than for asylee AOS.
o Compare refugee AOS under INA 209(a)(1) (must has been admitted to the United States under section 207 plus other eligibility criteria, but doesn t have continue to be requirement) How do derivative asylee lose relationship to the principal asylee? o NOTE: This does not mean the spouse or child loses asylee status. (That s only by formal termination.) This only affects their ability to adjust. o When principal asylee no longer meets definition of refugee Death of principal asylee (Don t necessarily need nunc pro tunc in this situation) INA 240(l) treatment for surviving relative if derivative lived in the US at the time of principal s death and continues to reside in the US, AOS must be approved unless against public interest 240(l)(2)(G) (asylee) Naturalization of principal asylee A principal asylee who has naturalized no longer meets the definition of a refugee. INA 101(a)(42). So once a principal naturalized, his derivatives spouse and children are no longer eligible for to adjust as a derivative asylee because they no longer qualify as the spouse or child of a refugee. Practice Pointer: Advise principal asylee to hold-off on natzing until all derivatives have adjusted, as they may not be eligible to adjust after natz and to avoid hassle and delay. SSI benefits for asylees get cut off after 7 years, so this can be an issue. Repatriation of principal asylee to country of persecution and other 101(a)(42)(A) issues o When derivative asylee is no longer a spouse or child of principal asylee Divorce Both derivative spouse and derivative stepchild will require nunc pro tunc if the principal asylee and spouse have divorced. Age-out Derivative child turns 21 and is not protected by CSPA. o CSPA locks in child status for any derivative asylee child who had a pending I-730 or I-485 as of August 6, 2002, or principal asylee s asylum application was filed on or after that date. *Asylum officers are not always well-trained on this. So we re talking about cases that were filed prior to August 6, 2002, and the derivative turned 21 before then. For cases filed after 8/6/02 and governed by CSPA, there is no need for nunc pro tunc.
Marriage of derivative INA 101(b)(1): b/c child means unmarried person under 21 Note: A child who married after grant of derivative asylee status, but has since divorced (so unmarried at the time of AOS), may qualify once again as a derivative child (provided no age-out issue). *Watch for fraud issues How to apply for nunc pro tunc (Derivative is applying as principal) o File I-589 DIRECTLY with AO, not Nebraska lockbox Answer questions from client s POV (not the original principal s) Check against original application Include positive identification Include documentation of admission (I-94, approval letter, etc.) Include proof of relationship to principal asylee (birth certificate, marriage cert) May already be in A-file (check FOIA) (especially if I-730 was processed overseas) Optional: include copy of how lost relationship; for example, natz cert of principal Cover letter: NUNC PRO TUNC o Unofficial Alternative (with risks): File I-485, and wait for RFE for I-589 Official policy NSC/TSC stated policy of not facilitating nunc pro tunc asylum applications, nor of informing adjustment applicants about the nunc pro tunc process In the past (post ~2007/8), AOS denial without explanation, no refund of fees (This is technically still the policy.) Recently, will RFE for I-589, and refer for AO interview (When RFE-ed, you file the I-589 with NSC, and they send it to SFAO. Sometimes it gets stuck in the process.) Faster? SFAO says same scheduling procedure (although we have heard anecdotally that it is faster) Ethical? o Pending AOS Wait for RFE, OR File nunc pro tunc ASAP, request deferred adjudication to avoid MTR/refile Upon nunc pro tunc grant, AO returns file to NSC
Standard o Derivative does not need to establish independent eligibility for asylum. Persecution can refer back to principal However, good to state a general future fear claim o Presumptively eligible for grant of asylum on their own AAPM, at 53. (good idea to cite to this in the cover letter) Interviews tend to be brief (although sometimes they will do a full interview) o ISSUES: Discretionary review of merits when: Different nationality, and does not appear to have a fear of harm in principal s country of persecution Derivative never lived with the principal applicant Original asylum through fraud, but principal status has not been terminated *Proceed with caution Bars 208 bars apply (but not 212) o Persecutor, particularly serious crime, serious non-political crime, TRIG Nunc pro tunc date o If asylum granted by CIS/INS or EOIR, backdates to date of principal s asylum approval (which should be same date of derivative s original grant) o If entered based on approved I-730, back to the date of entry o If based on approved I-730 within the US, back to the date of I-730 approval (so you rarely have to wait another year to adjust) Quirk of nunc pro tunc grant o Create new class of derivatives for relationships that existed at the time of initial derivative grant (date of retroactivity) o Because relationship must have existed at the time of initial grant, this really only applies to derivative children who had kids of their own, i.e., teenage mothers. Cannot be spouse because then the derivative couldn t have qualified for derivative asylum in the first place because has to be unmarried o So a derivative who got granted nunc pro tunc as principal now may be able to petition for and/or get derivative status for their children (who existed at time of initial grant). (This is basically for teenage parents. Exist does not mean born can be child who was conceived but not yet born on date of asylum grant.)
Resources: USCIS Affirmative Asylum Procedures Manual, Section III.E.7 USCIS Policy Manual, Vol. 7 Asylee Adjustment, Ch. 2 CLINIC, https://cliniclegal.org/sites/default/files/demystifying_nunc_pro_tunc_asylum.pdf Additional notes: No deadline for filing We are stuck with normal timeline for adjudication, so it can take over a year. If you have all of the required documents at the interview, the decision will come fairly quickly. The interview experience is a mixed bag depending on officer education. May sure to lay out eligibility (with citations) in your cover letter.