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Domestic United States Law Relating to Refugees

The American Dream™ Law Office PLLC: Your American Dream™ Law Office, has helped several individuals gain their permanent residence through asylum petitions. Attorney Ahmad Yakzan has represented several high profile individuals before the United States Citizenship & Immigration Services (USCIS) affirmative petitions and before the Executive Office of Immigration Review (EOIR) in defensive applications or after the petition was referred to EOIR.

Asylum law in the United States is a product of international law, domestic law and numerous complex statutes. The law covers asylees, parolees, persons seeking withholding of removal, under the Convention Against Torture, and temporary protected status.

INTERNATIONAL LAW PERTAINING TO REFUGEES

The United Nations Convention and the 1967 Protocol Relating to the Status of Refugees to which the US acceded to in 1968 are part of US refugee law. The Protocol incorporated article 2-34 of the 1951 United Nations Convention on Refugees. The Protocol is important because it was incorporated into United States law, including the definition of refugee under INA 101(a)(42).

The Board of Immigration Appeals and the Federal Courts have ruled that the United Nations High Commissioner for Refugees handbook to determine eligibility for refugee status and the procedures used for such status. Cordoza-Fonseca v. INS, 480 US 421, 439 (1987). Additionally, the UN Convention Against Torture (CAT) was enacted into law in the United States in 1998 and is part of United States law covering asylees. Under the convention, a state party may not return an applicant if there is substantial likelihood that the person would be subject to torture. See, Article 3(1). Congress has stated the same. Customary international law principles also apply in the determination. Matter of Medina, 19 I&N Dec. 734 (BIA 1988).

There are several domestic laws that pertain to refugees promulgated by Congress. The Refugee Act of 1980 I the most prevalent. Both the Immigration and Naturalization Act and the regulation have incorporated the act.

The Board of Immigration Appeals and the Department of Justice may interpret the law pertaining to refugees. The Attorney General may review the Board’s decisions under the Immigration & naturalization Act. Matter of Mogharrabi , 19 I&N Dec. 439, 445 (BIA 1988). The Department of Homeland Security and the Department of State also make administrative determination regarding eligibility.

The federal court may also review constitutional challenges to regulations and some determinations. The administrative agencies may not entertain constitutional challenges to the regulations. Most of these challenges are made under the Administrative Appeal Act or the Immigration & Naturalization Act.

PERSONS PROTECTED UNDER U.S. LAW

These different categories of people are protected under the law:

  • Normal flow refugees under §INA 207(a)
  • Emergency flow refugees INA §207(b)
  • Asylum seekers under INA §208
  • Persons seeking withholding of removal under INA §241 (b)(3)
  • Persons seeking protection under Convention Against Torture
  • Parolees under INA §212(d)(5)
  • Persons granted extended voluntary departure or deferred enforced departure
  • Persons granted temporary protected status (TPS)

OVERSEAS REFUGEES

A refugee is defined as a person outside of her country who because of a well-founded fear of persecution on account of a protected ground can not return to her country. INA §101(a)(42)(A). The definition also includes persons who are in their countries that the President designates after consultation with Congress. INA §101(a)(42)(B). Persons who are nationals of more than one country do not qualify as refugees unless they show that they would be persecuted by the second country. Matter of B-R-, 26 I&N Dec. 119 (BIA 2013). The law also disqualifies an applicant if they ever participated in the persecution of others. INA §101(a)(42)(B). In a recent decision, the Board ruled that duress may be an exception to the persecutor bar. Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Normal flow refugees are those refugees who apply for admission as refugees overseas. INA §207(a)(1). The President designates these normal flow refugees, after consultation with Congress based on humanitarian or national interest concerns. Id.

Emergency flow refugees are those refugees who, due to emergency humanitarian concerns, the President designates for admission. INA §207(b). Congress may also designate certain groups whoa have credible basis of concern about the possibility of persecution. Congress has designated the following groups for protection:

  • Residents of the former Soviet Union who share certain characteristics
  • Residents of Vietnam, Laos and Cambodia who share similar characteristics
  • Jews or Evangelical Christians of the former Soviet Union
  • Members of the Ukrainian Catholic Church or the Ukrainian Orthodox Church in the former Soviet Union , and
  • Residents of the Islamic Republic of Iran who are members of a religious minority.

Congress has also designated Iraqi nationals who worked with the United States government, North Koreans under the North Korean Human Rights Act, and persons from certain countries who help bring Americans held captive in the Vietnam or Korean war into US custody.

In Matter of D-K-, 25 I&N Dec. 761 (BIA 2012), the Board of Immigration Appeals ruled that a refugee is subject to removal under INA§ 237.

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us to day for help applying for such relief.

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