Neelam Ihsanullah, a guest contributor to our blog, is an immigration attorney licensed in Pennsylvania and California. You can contact her directly at: neelam.ihsanullah@gmail.com
There is some good news for the nation’s refugee population: in connection with ongoing litigation, the government is carefully reviewing its policy permitting the detention of refugees who fail to apply for lawful permanent resident (green card) status after being physically present in the United States for one year. Earlier this month, the NGO Human Rights Watch issued a report criticizing this unique form of immigration detention, in which an “alien could be held indefinitely without charges and not even as part of a removal proceeding.”
The requirement that refugees successfully obtain their green cards after one year of physical presence in the US comes from Section 209(a) of the Immigration and Nationality Act. This section provides that any refugee “who…has been physically present in the United States for at least one year, and… who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States.” Ever since a 2001 memo, the government has interpreted this confusing statutory language to mean that detention is mandatory for all resettled refugees who have failed to present themselves to obtain permanent resident status one year after arrival (so-called “unadjusted refugees”).
In practice, Immigration and Customs Enforcement, the agency responsible for enforcing the immigration laws, is unlikely to jail unadjusted refugees unless they have first come to the attention of immigration authorities because of a criminal arrest or conviction. But it is hard to ignore the fact that the law, as it is currently written and interpreted by DHS, permits the detention of all resettled refugees who fail to obtain their green cards after one year of physical presence in the US. This is a broad and severe interpretation of ambiguous statutory language, which could easily be read as merely requiring that refugees who have been physically present in the US for one year appear for inspection and examination in connection with their green card applications, with no detention required – an alternative reading which was once endorsed by the legacy Immigration and Naturalization Service (INS).
As pointed out by the Immigration Policy Center, the interpretation of Section 209(a) mandating the detention of those refugees who fail to adjust after being physically present for a year in the US runs counter to immigration regulations, which prohibit refugees from applying for adjustment of status until one year has passed since their admission in refugee status. See 8 C.F.R. § 209.1. The Immigration Policy Center points out the unfairness in this situation by explaining, “In essence, ICE detains refugees for not doing what the law bars them from doing.”
The detention-oriented policy of DHS towards unadjusted refugees is particularly disturbing due to the vulnerable nature of those individuals who arrive on our shores in refugee status. Refugees are only admitted to the US once they have proven that they have experienced past persecution in their native country or have a well-founded fear of future persecution in that country. This persecution must be because of race, religion, nationality, membership in a particular social group, or political opinion. Subjecting unadjusted refugees to detention may exacerbate existing traumas in individuals who have experienced past persecution and runs counter to the intent behind the Refugee Act, which was to encourage individuals feeling persecution in their native countries to find safety and freedom in the United States through lawful immigration status.
There are several other reasons to be concerned by the ongoing practice of jailing unadjusted refugees:
- Very few refugees are even aware that they are required to obtain their green cards after being physically present in the US for one year. Currently, there is no system in place to alert them to this requirement. Making matters worse, the I-94 card issued to resettled refugees contains no expiration date, which many refugees interpret to mean that they are able to stay in the US permanently without further action.
- Once a refugee is detained for failing to apply for adjustment of status, he faces a lengthy time in detention, as he must remain detained throughout the pendency of his application. Although USCIS recently created an expedited route for green card applications brought by unadjusted refugees in detention, the adjudication process still takes approximately 4-6 months, and in some rare cases it can be longer than a year. Moreover, many refugees encounter delays in filing their applications because they have difficulty obtaining the hefty filing fee and arranging the necessary medical exam and vaccinations while they are in detention.
- If the adjustment application is denied and the refugee is placed in removal proceedings, this means even more months, or possibly years, of detention ahead. Because refugees are treated as “arriving aliens” —a special immigration category that affords fewer rights and protections — they are not permitted to ask the Immigration Judge for release from detention under bond and are solely dependent on the mercy of the Department of Homeland Security to be released.
In its report, Human Rights Watch takes the position that it would be far more effective to do away with the requirement that refugees adjust their status after one year in the United States by conferring lawful permanent residence at the same time that an individual is granted asylum or admitted into the country under the refugee resettlement program. Because individuals are carefully vetted for possible grounds of inadmissibility during the process by which they obtain their refugee or asylee status, the work done by DHS during the adjustment stage is largely duplicative of these efforts – and quite costly for the agency. Making permanent residence automatic for asylees and refugees would streamline the immigration process for these foreign nationals and, most importantly, bring an end to the harsh detention-oriented regime for refugees who fail to adjust.
While this would amount to a radical change in law, it is clear that radical changes are needed. It is hoped that the Human Rights Watch report, coupled with ongoing litigation in the US District Court for the District of Arizona (Dong v. Holder, No. 09-01594 (D. Ariz., August 27, 2009)) on this issue, will result in changes to how unadjusted refugees are treated under the immigration laws. In the meantime, if you are currently in the United States in refugee or asylee status but have not yet obtained LPR status, we recommend that you consult Willmoth Immigration Law to ensure that you remain in full compliance with the U.S. immigration laws.