27 I. & N. Dec. 72
BIA2017Background
- Respondent, a Pakistani national, was granted asylum in 1992 and later adjusted to lawful permanent resident (LPR) status under INA § 209(b). He was convicted in Texas (possession of a controlled substance) and DHS initiated removal proceedings under INA § 237(a)(2)(B)(i).
- In removal proceedings the respondent filed new applications for asylum, withholding, and CAT protection; the IJ denied relief and found him removable.
- The Board initially dismissed the respondent’s appeal, relying on Matter of C-J-H-, holding that adjustment under § 209(b) terminates asylee status; the Fifth Circuit vacated and remanded for further consideration in Ali v. Lynch.
- On remand the Board again held that adjustment from asylee to LPR status under § 209(b) changes (terminates) asylee status, so the § 208(c)(1)(A) bar on removing “an alien granted asylum” no longer applies.
- The Board reasoned from statutory text, regulations, legislative history, and international materials that adjustment effects a change of status (not an accretion), and that voluntary surrender via § 209(b) is distinct from involuntary termination under § 208(c).
Issues
| Issue | Respondent's Argument | DHS/Board's Argument | Held |
|---|---|---|---|
| Whether adjustment under INA § 209(b) terminates "asylee" status so § 208(c)(1)(A) removal protections no longer apply | Adjustment does not terminate asylee status; § 208(c) lists exclusive termination grounds and therefore removal protections continue | § 209(b) effects a change of status from "asylee" to LPR; adjustment is voluntary surrender and extinguishes asylee status | Adjustment to LPR under § 209(b) terminates asylee status; § 208(c)(1)(A) protections no longer apply |
| Whether § 208(c)(2)’s list of termination grounds is exhaustive | § 208(c)(2) is the exclusive list of termination grounds; thus only those grounds can end asylum status | The text of § 208(c)(2) is not stated as exhaustive; regulations and precedent recognize termination/cancellation (e.g., fraud) outside § 208(c)(2) | § 208(c)(2) is not the sole means to end asylee status; voluntary adjustment under § 209(b) ends status |
| Whether international refugee law (UN Convention/Protocol and UNHCR guidance) requires retaining refugee/asylee status after acquiring LPR | UNHCR guidance suggests refugee status may not cease upon LPR acquisition; therefore domestic protections should remain | International materials permit voluntary surrender; cessation provisions do not preclude voluntary relinquishment via adjustment | No conflict; international materials allow voluntary surrender and do not control U.S. statutory construction |
| Whether an alien who adjusted under § 209(b) is foreclosed from seeking asylum/withholding/CAT in removal proceedings | Adjustment should not permit removal while asylum protections remain; respondent retains prior status protections | An alien who adjusted can still apply for asylum/withholding/CAT in removal proceedings, subject to usual timeliness exceptions and standards | Adjustment terminates asylee status but the alien may file new asylum/withholding/CAT claims in proceedings |
Key Cases Cited
- Ali v. Lynch, 814 F.3d 306 (5th Cir. 2016) (vacated BIA decision and remanded to consider whether § 209(b) adjustment terminates asylee status)
- Adams v. Holder, 692 F.3d 91 (2d Cir. 2012) (definition and effect of "adjustment of status")
- Mahmood v. Sessions, 849 F.3d 187 (4th Cir. 2017) (upheld BIA view that § 209(b) adjustment converts asylee to LPR and ends asylum protections)
- Arif v. Mukasey, 509 F.3d 677 (5th Cir. 2007) (timeliness/exceptions for asylum filings)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (administrative deference framework applied to statutory ambiguity)