By Anastasia Brown and Charles Wheeler
Special laws and procedures allow for asylees and refugees to reunite with their immediate family members. Practitioners who are familiar with family-based immigration already know that lawful permanent resident aliens (LPRs) may file an alien relative petition (Form I-130) for their spouse and unmarried children. Both refugees and asylees may file for LPR status one year after entering as a refugee or being granted asylum, but it takes at least a year for refugees to be granted permanent residence, and approximately twelve years for asylees. Although LPR status entitles them to file the I-130, due to the backlog in the second preference category, they must wait several more years before completing the process. Fortunately, refugees and asylees can immigrate their spouse and unmarried children much faster by classifying them as derivatives.
The first part of this article will describe the procedures for the spouses and children of asylees to derive asylum status as derivatives. The second part will be devoted to refugee derivative processing and adjustment of status for both asylees and refugees.
Derivative Asylum. Persons who have a well-founded fear of persecution in their home country may apply for asylum in the United States, either affirmatively before the Department of Homeland Security (DHS) asylum office or in proceedings before an Immigration Judge. If they are granted asylum, their spouse and unmarried children may be afforded the same status without additional applications, provided they were named on the asylum application and are in the United States. If they were not named on the asylum application or are not in the United States, the principal asylee must file an additional petition to have them classified as derivative asylees.
In both situations, the spousal relationship must have existed on the date the principal was granted asylum. If the parties were not lawfully married in the jurisdiction where the marriage took place, the marriage will not be considered valid and the derivative status will not be granted. Proxy marriages are not sufficient unless the marriage has been consummated. The parties may be estranged, as long as they were legally married when asylum was granted, the marriage is bona fide, and the marriage has not been terminated.
Similarly, for unmarried children, the relationship also must have existed on the date the principal was granted asylum. If the child was conceived but not yet born on that date, the relationship will be considered to exist as of the date of the asylum grant. If the child is adopted, the adoption must have taken place before the child turned 16 and the child must have been in the legal custody of and living with the adoptive parent(s) for two years. If the child is a stepchild, the marriage creating the relationship must have occurred before the child turned 18. If the principal is the mother, it does not matter if the child was born in wedlock. If the father is the principal, the child must either have been born in wedlock or legitimated before turning 18. Otherwise, the father will be required to submit evidence of a bona fide father-child relationship before the child turned 21. Documents establishing that the father has acknowledged this relationship and cares for the general welfare of the child can include the following: money orders or canceled checks, income tax returns listing the child as a dependent, medical or insurance records, school records, or correspondence between the parties.
In some circumstances or at some (high fraud( consular posts it may be necessary to submit DNA test results to establish the parent-child blood relationship. While such testing is voluntary, several consulates routinely (suggest( that it be submitted. The testing may only be performed by the American Association of Blood Banks and the results must indicate a relationship by 99.5 percent probability or higher. The applicant bears the financial responsibility for these tests, which can be quite expensive. Nevertheless, it is often cheaper for the client to have the testing performed rather than trying to prove relationship through other means or challenging the consular post(s denial.
The derivative status ends if the child marries prior to arrival in the United States as an asylee. The unmarried child is precluded from bringing his or her children; derivatives cannot pass derivative status to their children.
Included on the I-589. If the spouse and unmarried children were named on the asylum application (Form I-589) and are in the United States, the procedure is relatively simple. They derived asylum on the date the principal applicant was granted, provided the spousal or parent-child relationship existed at the time the principal was granted asylum (see the discussion below on age-out situations) and none of the bases for denial are present. These include conviction of a particularly serious crime, security threat, or persecution of others.
If the principal was granted asylum by the asylum office, the spouse and children will be issued separate I-94s indicating their asylee status, which allows them to work. They may also apply for an employment authorization document and an unrestricted social security card, which further evidences work eligibility. If the principal was granted asylum by an Immigration Judge, the DHS should schedule a time when the family can appear for processing of the I-94s. Some local district offices, however, refuse to process asylees for I-94 cards.
Not included or residing abroad. If the spouse and unmarried children were not named on the I-589 application or are outside the United States, the procedure is more complicated. In those cases, the principal must file a Form I-730, Refugee/Asylee Relative Petition, within two years of obtaining asylum. Petitions can be filed after two years, but only for extreme humanitarian reasons, such as serious health factors. In those cases, attach a detailed explanation as to why a waiver of this two-year time limitation should be granted. In our experience, these waivers are rarely granted.
The spouse or child does not need to establish an independent claim to persecution, and can be residing within his or her home country or in a third country. The asylee must file a separate I-730 for each family member seeking (accompanying or following-to-join( benefits. The asylee may need to explain why a spouse or children in existence at the time the I-589 application was originally filed were not listed. The spousal relationship must have existed at the time the principal was granted asylum and must continue to exist until the I-730 is approved. After entry as a derivative, neither the spouse nor child may file I-730 petitions for other family members. Spouses or children previously granted refugee or asylum status are ineligible to derive such status from their spouse or parent.
Effect of the Child Status Protection Act. Under prior law, if the child turned 21 before the parent was granted asylum, he or she lost the ability to obtain equivalent status as a derivative. The same was true if the child turned 21 before the I-730 was filed, or before it was approved, or before the child was actually admitted to the United States as a derivative. Fortunately, section 4 of the Child Status Protection Act of 2002 (CSPA), Pub. L. No. 107-208, 116 Stat. 927, remedies that by locking in the child(s age on the date the principal alien applied for asylum status. If the child was unmarried and under 21 on that date, the child preserves derivative status, even if he or she subsequently turns 21. But one must first take into account the effective date of the CSPA and its retroactive effect before determining if it applies.
On July 23, 2003, the U.S. Citizenship and Immigration Services (USCIS) issued an internal memo providing guidance on the implementation of section 4 of the CSPA. On September 30, 2003, the Executive Office of Immigration Review (EOIR) issued a memo regarding grants of conditional asylum based on the Coercive Population Control ground, which also addressed the CSPA as it pertains to children of the asylum applicants or asylees. Both memos provide consistent interpretations, and are summarized below. This information has also been condensed into a table prepared by USCIS and attached to this article.
Three categories of children can take advantage of the CSPA. The first includes those who were under 21 at the time their parent filed for asylum, provided the I-589 was pending on August 6, 2002 or filed after that date. This category includes children who were named on the I-589 and are residing in the United States, as well as those who were not named or who are residing outside the country and must derive status through the I-730 process. Prior to the CSPA, a child named on the I-589 application would lose derivative asylum status upon turning 21 and would need to file a separate I-589 to be considered eligible for asylum. Under current interpretation of the law, if the child was under 21 at the time the asylum application was filed, he or she will remain a derivative and will not age out. The child is no longer required to file a separate I-589 petition. Similarly, prior to the CSPA, children who wanted to derive asylum through the I-730 process must have been under 21 at the time it was filed and remain under 21 until entering the United States. Now they will be able to enter as derivatives as long as they were under 21 on the date the I-589 was filed.
The second category includes children of a parent who was granted asylum prior to August 6, 2002 but who filed an I-730 petition prior to the child(s turning 21. These children will also be able to derive asylum status provided the I-730 was pending on that date. Form I-730 is considered pending if the Nebraska Service Center (NSC) has not yet adjudicated it or the NSC approved the petition but the U.S. embassy/consulate had not yet issued travel documents to the child. If the child was issued travel documents prior to August 6, 2002 but he or she failed to pick up the documents, the CSPA will not apply.
The third category includes the asylee(s children who aged out on or after August 6, 2002. The I-589 or I-730 could have been filed before or after that date. Keep in mind that section 424 of the USA PATRIOT Act allows beneficiaries of petitions pending on September 11, 2001 to remain eligible as a child for 45 days after turning 21. So as long as the I-589 or I-730 was pending on that date, children who turned 21 on or after June 22, 2002 will still be covered by the CSPA.
Travel. Any travel outside the United States by refugees and asylees should be carefully analyzed before making giving advice or assistance. Asylees and derivative asylees may not travel outside the United States unless they have been provided with a Refugee Travel Document, Form I-571. This is a passport-like, blue booklet that is valid for one year. The application for this document is made on Form I-131, Application for Travel Document. Send the completed form, along with proof of asylee status, two photos, and a filing fee of $165 to the NSC.
Asylees who leave the United States before being granted the travel document may apply for it at a U.S. consulate or port of entry, but there is no guarantee that it will be granted. In cases where the asylee was ignorant of the requirement before leaving, or there was a medical emergency or other compelling circumstance justifying the alien's not meeting the requirements, USCIS district directors will likely favorably exercise their discretionary authority. The asylee must not have intended to abandon asylee status and must have been outside the United States for less than one year. Even if the asylee is re-admitted with the travel document, he or she will be subject to examination and questioning regarding those grounds of inadmissibility that would also constitute grounds for termination of asylum, such as commission of an aggravated felony or being a national security threat.
In addition, the asylee may request parole into the United States for (urgent humanitarian reasons or significant public benefit( pursuant to INA ( 212(d)(5). Factors that the district directors may consider include the following: (1) reasons why the alien was originally granted asylum; (2) the circumstances leading to the expiration of or failure to obtain the refugee travel document; (3) whether the alien has returned to his or her country of origin and, if so, the reasons for that return; and (4) the circumstances in which the alien currently finds himself or herself. For a discussion on the process of applying for humanitarian parole, see the November 2002 issue of Catholic Legal Immigration News, p.6. As a final alternative, the asylee may apply for refugee status under INA ( 207.
The asylee or derivative should be cautioned about returning to his or her country of feared persecution since it could affect entitlement to asylee status. While it does not result in automatic revocation of asylum, the DHS has the right to inquire whether the asylee has (voluntarily re.availed himself of the protection of his country of nationality.( This would turn on the original basis for asylum, the reasons for the return, the length of the visit, and what other actions the asylee took while there. For example, visiting a sick relative would not evidence (re-availment,( but purchasing or leasing property or establishing business relations might result in the invalidation of an unexpired refugee travel document under 8 CFR ((223.3(b). Any doubts as to the application of the cessation clause should be resolved in the alien's favor. It may be easier for the derivative to return to the home country without facing possible revocation of status than for the principal asylee or refugee.
Asylees who have incurred more than 180 days of unlawful presence prior to obtaining asylee status should also be warned of the risks of travel. Leaving the United States may trigger the three- or ten-year bars to readmission. While that should not affect their reentry with the refugee travel document, it will make them inadmissible should they apply for adjustment of status. Eligibility for a waiver under INA ( 209(c) will be discussed in the second part of this article.
Completing, Filing, and Adjudicating the I-730. The I-730 petition is relatively straight-forward. The principal asylee completes, signs, and files the petition, not the spouse or child. The form was last updated on September 18, 2000, and thus the instructions have not been updated to include the changes brought about be the CSPA.
The principal has the burden of proving eligibility for derivative asylum benefits by a preponderance of the evidence (more likely than not). He or she must submit the following: (1) evidence of asylum status; (2) evidence of the family relationship; and (3) a recent photograph of the spouse or child. It may often be difficult and time consuming to obtain recent photographs and other documents, so do not delay in requesting these from your client. Be creative if they are not forthcoming, and make sure you do not hold up submission of the petition beyond the two-year time period. If the application is for a spouse, submit a copy of the marriage certificate and proof of legal termination of any prior marriages. If the application is on behalf of an unmarried child, submit a copy of the birth certificate showing both the child's and the principal's name. For fathers, submit proof that the child was born in wedlock, has been legitimated, or that a bona fide relationship exists. Adopted children need further evidence of the adoption and legal custody/residency. Stepchildren need proof of the marriage creating the relationship.
Submit copies (not originals) of the required documents, and include an English translation for those in a foreign language. In some cases, it will be impossible to obtain the original documents. Consult the State Department's Foreign Affairs Manual to see what documents are acceptable proof of marriage or birth in the pertinent foreign country. If the primary documents are unavailable, secondary forms of evidence, such as church, school, or census records may be accepted. If these are unavailable, submit affidavits from two persons with personal knowledge of the marriage or birth.
Send the I-730, with necessary documents, to the Nebraska Service Center, P.O. Box 87730, Lincoln, NE 68501-7730. There is no fee required. Although the CSPA remedied the age-out problem for applications/petitions pending on or filed after August 6, 2002, there may still be a need to have the I-730 expedited, such as for health or safety reasons. In that case, submit as much documentation as possible that establishes the need for expedited processing and indicate on the form that you are requesting it. Also, write (Expedited Processing Requested( on the outside of the mailing envelope.
The grounds of inadmissibility do not apply to derivative asylees. However, granting the I-730 application is a discretionary act, and the consular officer may deny it if negative factors exist, such as criminal convictions or prior misrepresentations. While a formal waiver pursuant to INA ( 212(h) or (i) should not be required, it may mitigate against such negative factors. Derivative asylees are also not subject to the vaccination requirements.
If the NSC approves the I-730, it notifies the applicant on Form I-797. It also forwards the file to the National Visa Center in Portsmouth, NH, which in turn forwards it to the U.S. embassy or consulate having jurisdiction over the area where the asylee's spouse or child is residing. The embassy or consulate will then notify the spouse or child to appear for an interview. The approval of the I-730 shall remain valid for the duration of the relationship (for spouses, as long as the marriage is not terminated; for children, as long as they do not marry). The spouse or child must pay for all necessary medical exams and arrange his or her own transportation to the United States. The approved I-730 can only be used for one admission to the United States, but there is no time limitation on entering the United States. Upon admission to the United States, the derivative asylee should be given an I-94 authorizing an indefinite stay.
If the embassy or consulate does not believe the spouse or child is entitled to derivative status, it will return the file to the local USCIS service center for revocation. Prior to doing this, it should ( although many do not ( provide the child or spouse with an explanation for the intended refusal and an opportunity to provide further proof of eligibility. It will send the file back to DHS, which will issue a formal notice of intent to deny. If the applicant is not able to convince the agency of the spouse's or child's eligibility, the I-730 will be revoked; if the applicant is successful, DHS will reaffirm the petition and forward it again to the embassy or consulate. Revocation of the principal's asylum status, for example due to criminal acts, also revokes the validity of the I-730.
If the I-730 is denied, the USCIS will provide a copy of the written decision and reason for the denial to the applicant. Most denials are based on a failure to adequately establish or document the family relationship. If you have additional documentary evidence you wish to submit or you believe the denial was in error, submit a motion to reopen/reconsider to the Director of the NSC. There is no appeal of the denial, but the asylee is not precluded from re-filing the application, assuming it is within the two-year time frame.