Can an Asylee Lose Their Immigration Status?
Being granted asylum in the United States can provide important protection from persecution and allow an individual to live and work in the country. But many people assume that once asylum is granted, the status can never be taken away.
That is not quite correct.
Under U.S. immigration law, asylum is not automatically permanent. In certain circumstances, the government can terminate an individual's asylum status. The law identifies specific grounds for termination, and the procedure depends in part on who originally granted the asylum.
This article explains when an asylee may lose asylum status, what actions can create immigration problems, and what an asylee should do if they receive a notice concerning termination of asylum.
What Does It Mean to Be an Asylee?
An asylee is a person who has been granted asylum in the United States after establishing eligibility for protection based on persecution or a well-founded fear of persecution on a protected ground.
Under Section 208 of the Immigration and Nationality Act, asylum provides protection from removal to the person's country of nationality or, in certain circumstances, country of last habitual residence. Federal law also authorizes employment and permits international travel subject to applicable requirements.
However, asylum is different from U.S. citizenship or an unconditional right to remain permanently in the United States.
Federal law expressly provides that a grant of asylum does not itself convey a right to remain permanently in the United States. Asylum may be terminated when one of the statutory grounds applies.
Can an Asylee Lose Asylum Status?
Yes.
An asylee can lose asylum status if the government establishes a legally recognized ground for termination.
The main statutory grounds include:
The person no longer qualifies for asylum because of a fundamental change in circumstances.
The person falls within a statutory ground that would have made them ineligible for asylum.
The person can obtain protection in another country under the circumstances described by the statute.
The person has voluntarily obtained protection from their country of nationality by returning there with permanent resident status or a reasonable possibility of obtaining such status.
The person has acquired a new nationality and enjoys the protection of that country.
Fraud or other circumstances demonstrate that the person was not eligible for asylum when asylum was originally granted.
These grounds are reflected in INA § 208(c)(2) and the implementing regulations.
1. Fraud in the Original Asylum Application
One of the most serious risks is fraud connected to the original asylum application.
If the government determines that an individual obtained asylum through fraud and that the person was not actually eligible for asylum when it was granted, the government may seek termination of the asylum status.
For example, problems may arise if significant information in the original asylum application was deliberately fabricated or materially misrepresented.
Not every mistake in an old immigration application automatically means that asylum will be terminated. The government must apply the applicable legal standards to the particular facts.
Because asylum applications often contain detailed personal histories, an alleged inconsistency should not simply be ignored. A person who receives a notice questioning the truthfulness of an old asylum claim should consider obtaining qualified immigration counsel before responding.
2. Returning to the Country From Which the Person Fled
Travel to the country of feared persecution can create serious immigration questions.
An asylee may be asked why they returned to the country that they previously claimed they feared. Depending on the circumstances, such travel can be viewed as evidence that the person no longer needs U.S. protection or that the original fear may no longer exist.
USCIS has specifically warned that returning to the country where the person experienced persecution or claimed a fear of future persecution may create questions about continued asylee status. USCIS also recognizes that limited circumstances may exist where a short visit was made for compelling reasons.
This does not mean that every trip automatically terminates asylum.
The reason for the trip, its duration, the circumstances surrounding the travel, the person's conduct while abroad, and the evidence supporting the original asylum claim can all matter.
An asylee should therefore think carefully before traveling to the country from which they fled.
3. Voluntarily Re-Availing Protection from the Home Country
Another important issue is whether the asylee has voluntarily placed themselves under the protection of their country of nationality again.
INA § 208(c)(2)(D) provides for termination where an individual has voluntarily availed themselves of the protection of their country of nationality by returning there with permanent resident status or a reasonable possibility of obtaining such status with the same rights and obligations as other permanent residents.
This is different from simply visiting a foreign country.
The government looks at the circumstances and the legal protection available to the individual. Therefore, an asylee should not assume that obtaining or using certain rights in the home country is harmless from an immigration perspective.
4. Acquiring a New Nationality
Asylum can also be terminated when the person acquires a new nationality and enjoys the protection of that new country.
This is another ground specifically identified by INA § 208(c)(2).
The important point is that the issue is not merely the possession of another passport. The statutory ground concerns acquiring a new nationality and enjoying the protection of that country.
Because nationality questions can be legally complicated, an asylee who obtains citizenship in another country should consider the possible U.S. immigration consequences.
5. A Fundamental Change in Circumstances
An individual's circumstances can change after asylum is granted.
Under federal law, asylum may be terminated if the person no longer meets the conditions for asylum because of a fundamental change in circumstances.
This is particularly important when conditions in the country of origin change significantly.
However, a change in the political situation does not automatically mean that every asylee from that country loses status overnight. Termination requires application of the relevant statutory and regulatory standards to the individual's circumstances.
6. Criminal or Other Conduct Can Create Serious Problems
Certain conduct can make a person ineligible for asylum or provide a basis for termination.
The asylum statute contains several bars and exceptions involving matters such as persecution of others, particularly serious crimes, serious nonpolitical crimes, national security concerns, and terrorism-related grounds.
This means that an asylee who later becomes involved in serious criminal or national-security-related conduct may face consequences that go beyond an ordinary criminal case.
The exact immigration consequences depend on the offense, conviction, procedural history, and applicable statutory provisions.
A criminal case involving an asylee should therefore never be treated as only a criminal-law issue.
Does Getting a Green Card Automatically Protect an Asylee?
Obtaining lawful permanent resident status changes a person's immigration position, but it does not necessarily erase every issue connected to the underlying asylum grant.
USCIS explains that evidence discovered after adjustment can, in appropriate circumstances, lead to action concerning the person's permanent resident status if the underlying asylum or adjustment was legally defective.
USCIS has also explained that returning to the country of claimed persecution can continue to have consequences even after an individual obtains permanent residence based on asylum.
Therefore, becoming a green card holder does not mean that an individual should ignore the circumstances surrounding the original asylum claim.
Can a Derivative Asylee Lose Status?
Yes.
A spouse or child who received asylum status based on the principal asylee's application can also be affected if the principal's asylum status is terminated.
Federal regulations provide that termination of the principal applicant's asylum status generally results in termination of derivative asylum status for a spouse or child whose status was based on that application.
However, termination of derivative status does not necessarily prevent the spouse or child from having an independent claim for asylum or another form of protection if they independently qualify.
This is one reason families should not assume that the immigration history of every family member is identical.
What Happens Before USCIS Terminates Asylum?
Termination is not supposed to happen without a procedure.
For asylum granted under USCIS jurisdiction, the regulations generally provide for notice of intent to terminate and an opportunity for the asylee to present evidence showing that they remain eligible for asylum.
Under 8 C.F.R. § 208.24, the person must generally receive notice of the reasons for the proposed termination and at least 30 days before the applicable interview. The person is given an opportunity to submit evidence in response.
If USCIS determines that a ground for termination has been established, it can issue written notice terminating asylum status.
USCIS policy also explains that a Notice of Intent to Terminate, commonly called a NOIT, identifies the grounds under consideration and gives the asylee an opportunity to rebut them.
What If the Immigration Judge Granted the Asylum?
The procedure can be different when asylum was granted by an Immigration Judge or the Board of Immigration Appeals.
USCIS does not generally have the same jurisdiction to terminate asylum that was granted by an Immigration Judge. In such circumstances, termination may involve proceedings before the immigration court or the Board of Immigration Appeals.
The regulations specifically recognize the authority of an Immigration Judge or the Board to reopen a case for purposes of terminating asylum under the applicable rules.
This distinction is important because an asylee should first determine who actually granted the asylum before deciding how to respond to a termination issue.
What Happens If Asylum Is Terminated?
Termination can have serious consequences.
Federal law provides that a person whose asylum is terminated may become subject to applicable grounds of inadmissibility or deportability and removal proceedings.
The regulations also provide for removal proceedings, where appropriate, after termination of asylum.
Therefore, a termination notice should not be treated like an ordinary administrative letter.
It may affect the person's ability to remain in the United States and may lead to removal proceedings.
Does an Expired EAD Mean an Asylee Has Lost Asylum?
No.
This is an important distinction.
An Employment Authorization Document, or EAD, is evidence of employment authorization. Its expiration is not the same thing as termination of the underlying asylum status.
Likewise, an expired travel document does not automatically mean that asylum itself has been terminated.
An individual should determine exactly what document or immigration benefit has expired before assuming that their underlying status has ended.
What Should an Asylee Do If They Receive a Notice of Intent to Terminate?
Do not ignore it.
A person who receives a Notice of Intent to Terminate should carefully read:
The reason USCIS or another government agency is considering termination.
The evidence cited against the person.
The deadline for responding.
Whether an interview or hearing has been scheduled.
Whether the asylum was granted by USCIS or by an Immigration Judge.
Whether the government is also issuing or pursuing a Notice to Appear.
The response should directly address the government's allegations and include relevant documentary evidence.
If the allegation concerns travel to the home country, for example, the response may need to explain the purpose of the trip, the circumstances requiring the travel, its duration, and why the travel does not establish that the person no longer requires protection.
If the allegation concerns fraud, the response may require a detailed examination of the original asylum application and supporting evidence.
Can an Asylee Lose Status Without Warning?
The government does have legal procedures for termination, and the procedure depends on the circumstances and the authority that granted asylum.
For USCIS-granted asylum, the regulations provide a notice-and-response process before termination in the circumstances covered by the regulation.
However, immigration proceedings can involve multiple agencies and procedural stages. A person should not assume that the absence of a particular letter means that no immigration action is possible.
If a person is already in removal proceedings, the immigration court's jurisdiction and the procedural history of the case become especially important.
Conclusion
An asylee does not normally lose immigration status simply because an ordinary immigration document expires. However, asylum itself is not an unconditional permanent status.
Under U.S. immigration law, asylum may be terminated for specific reasons, including certain fraud, criminal or security-related grounds, fundamental changes in circumstances, acquisition of another nationality, and circumstances involving renewed protection from or return to the country of nationality.
Travel to the country from which an individual fled deserves particular caution because it can raise questions about whether the person still requires U.S. protection.
If an asylee receives a Notice of Intent to Terminate, Notice of Termination, Notice to Appear, or another document questioning their asylum status, the response should be taken seriously and prepared according to the person's individual immigration history.
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Disclaimer
Immigration law is highly fact specific. This article provides general legal information and is not a substitute for advice from a qualified U.S. immigration attorney or accredited representative. This article is for general informational and educational purposes only. It does not create an attorney-client relationship and should not be treated as legal advice. U.S. immigration laws, regulations, agency policies, and court decisions can change. Readers should consult a qualified immigration attorney or accredited representative about their individual circumstances.
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