Chapter 6 - Termination of Status and Notice to Appear Considerations
On occasion, an officer reviewing the adjustment application will discover evidence that indicates the applicant was not eligible for asylum status at the time of asylum grant or is otherwise no longer eligible for asylum status. The officer should return the file to the asylum office for further review and potential termination of status.
A grant of asylum does not convey a right to remain permanently in the United States and may be terminated. The date of the asylum grant guides the termination procedures.
Fraud in the application pertaining to eligibility for asylum at the time it was granted is grounds for termination regardless of the filing date.
USCIS may terminate asylum if USCIS determines that the applicant:
No longer meets the definition of a refugee;
Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
Constitutes a danger to the community of the United States, if convicted of a particularly serious crime;
Committed a serious nonpolitical crime outside the United States prior to arriving in the United States;
Is a danger to the security of the United States, including terrorist activity;
May be removed, to a country (other than the country of the applicant’s nationality or last habitual residence) in which the applicant’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, where the applicant is eligible to receive asylum or equivalent temporary protection;
Has voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
Has acquired a new nationality and enjoys the protection of the country of his new nationality.
USCIS may terminate the approval of asylum if USCIS determines that the applicant:
No longer has a well-founded fear of persecution due to changed country conditions;
Was convicted of a particularly serious crime or an aggravated felony;
Was firmly resettled in a third country;
Can reasonably be regarded as a danger to the security of the United States; or
Is a persecutor or has engaged in terrorist activity.
Termination Before Decision on Adjustment Application
USCIS may initiate termination of asylum status if USCIS or legacy Immigration and Naturalization Services (INS) initially granted the status. USCIS may not terminate asylum status granted by an immigration judge (IJ) or the Board of Immigration Appeals (BIA). If an officer determines that termination may be appropriate in a case where USCIS or legacy INS granted asylum, the officer should forward the case to the asylum office with jurisdiction before adjudicating the adjustment of status application. Jurisdiction is based on the current residence of the applicant, regardless of which USCIS office or legacy INS office originally granted asylum status.
In all but the Ninth Circuit (discussed below), the asylum office must provide the asylee with written notice before USCIS terminates the asylee’s asylum status and any related employment authorization. The written notice is called a Notice of Intent to Terminate (NOIT). The NOIT presents the termination ground(s) under consideration, provides a brief summary of the evidence supporting the grounds for termination, and notifies the asylee that he or she will have an opportunity to rebut the termination grounds during a scheduled termination interview at an asylum office or a hearing before an IJ. The NOIT must contain prima facie evidence supporting the termination ground(s).
The asylee must be given at least 30 days to respond to the NOIT and present evidence that he or she is still eligible for asylum. After considering the evidence, including the asylee’s response, lack of a response, or failure to appear, if the asylum office determines that one or more grounds of termination have been established by a preponderance of the evidence, the asylum office issues a Notice of Termination (NOT) and a Notice to Appear (NTA).
Upon termination of asylum status, USCIS denies the pending adjustment application. The adjustment of status denial must set forth the reason(s) for the denial. There is no appeal from the denial of the adjustment of status application, but the applicant may renew the application for adjustment in his or her removal proceedings before the immigration court.
Alternatively, at the discretion of an Asylum Office Director, the asylum office may issue a NOIT with an NTA, referring the termination of asylum status to U.S. Immigration and Customs Enforcement (ICE) to pursue in removal proceedings. At any time after the applicant is issued a NOIT and an NTA, an IJ may terminate asylum granted by USCIS or legacy INS at a termination hearing held in conjunction with removal proceedings. When a NOIT and NTA have been filed with the immigration court before the adjustment of status application is adjudicated, USCIS may deny the pending adjustment application for lack of jurisdiction. The applicant may file an adjustment application in removal proceedings.
Asylees Residing in the Ninth Circuit
In Nijjar v. Holder, the Ninth Circuit Court of Appeals determined that USCIS cannot terminate asylum for asylees residing within the jurisdiction of the Ninth Circuit. Rather, the asylum office issues a NOIT with an NTA, referring the termination of asylum status to ICE to pursue in removal proceedings. If the applicant does not reside in the Ninth Circuit, the officer should forward the case to the asylum office with jurisdiction over the applicant’s current residential address for termination review.
Termination of asylum status for a principal asylee also results in termination of any derivative’s asylum status, if the derivative asylee has not yet adjusted to lawful permanent resident (LPR) status. If USCIS issues a NOIT to a principal asylee, the NOIT also includes any derivative asylees who have not yet adjusted status.
USCIS may terminate the asylum status of a derivative asylee who has not adjusted status and whose asylum status was granted by USCIS, even if the principal asylee was granted asylum by an IJ or the BIA, so long as there is an independent ground to terminate the derivative’s asylum status. If it is a derivative asylee who is subject to termination, and not the principal asylee, USCIS includes only the derivative asylee in the NOIT. When the grounds for termination apply to only a derivative asylee, the derivative asylum status is terminated without effect on the principal asylee’s status.
If a person adjusted to LPR status and an officer later determines there is evidence that an asylum termination ground or related inadmissibility ground applied before the adjustment occurred, USCIS may take steps to rescind the person’s permanent resident status (if within 5 years of adjustment) or issue an NTA.
USCIS may not terminate asylum status granted by an IJ since jurisdiction rests with the immigration court. To initiate termination of asylum in these cases, ICE must file a motion to reopen proceedings before the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR).
[^ 3] See Nijjar v. Holder, 689 F.3d 1077 (9th Cir. 2012).
[^ 4] The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, as well as Guam and the Commonwealth of the Northern Mariana Islands.
[^ 5] Derivative asylee includes family members included on the principal asylee’s Application for Asylum and for Withholding of Removal (Form I-589) or who followed to join as asylee beneficiaries of a Refugee/Asylee Relative Petition (Form I-730).
[^ 6] In these circumstances, the termination does not preclude the former derivative from applying for asylum or withholding of removal on his or her own as a principal asylee.
[^ 7] USCIS does not have jurisdiction to terminate derivative asylees’ asylum status where such status was granted by the immigration court. For more information, see Subsection 2, Asylum Granted by Immigration Court [7 USCIS-PM M.6(B)(2)].