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Immigration – Asylum Protection Lost Through Status Change

Deborah Elkins//March 1, 2017

Immigration – Asylum Protection Lost Through Status Change

Deborah Elkins//March 1, 2017

Mahmood v. Sessions (Lawyers Weekly No. 001-055-17, 16 pp.) (Niemeyer, J.) No. 16-1438, Feb. 22, 2017; On Petition for Review; 4th Cir.

Holding: A Pakistani citizen initially granted asylum, who voluntarily adjusted his status to lawful permanent resident, is not entitled to additional protections that would have been available to an asylee prior to his removal for misrepresenting facts in order to obtain travel documents; the 4th Circuit affirms the decision of the Board of Immigration Appeals.

The DHS claimed petitioner’s alleged misrepresentations regarding his unreported travel and possession of Pakistani passports made him inadmissible at the time of his application for adjustment of status, which in turn rendered him removable under the Immigration and Nationality Act. An immigration judge determined that defendant had obtained his lawful permanent resident status and his two refugee travel documents by fraud. The IJ found that petitioner’s travel pattern “represented a concerted effort by him to avoid using his authorized travel documents to return to Pakistan, which he denied was his intention when he applied for them,” and that his use of three Pakistani passports showed that he made misrepresentations on his application for travel documents. The IJ ordered removal.

The BIA dismissed his appeal, holding that the IJ properly ordered petitioner’s removal without first conducting an asylum termination proceeding. The BIA relied on its precedential decision in Matter of C-J-H, 26 I.&N. Dec. 284, in which it had concluded that aliens whose status was adjusted from asylee to lawful permanent resident “no longer qualify as asylees,” and declined to revisit that decision.

Petitioner now claims that “he is still an asylee” and has a right not to be returned to a country where he would be persecuted, threatened or harmed.

Status Adjustment

It is undisputed that petitioner, while an asylee, submitted an application in 2011 to the DHS to adjust his status to that of a lawful permanent resident under § 1159(b) and that the DHS granted his application in 2012. We therefore must focus on the consequence of this adjustment of status.

Under our reading of § 1159(b), petitioner simply no longer holds the status of an “alien granted asylum.” Rather, he holds the status to which he was adjusted, i.e., an alien lawfully admitted for permanent residence. In his new status, he is, like every other lawful permanent resident, subject to removal for procuring an immigration benefit by fraud or willful misrepresentation of a material fact. An alien simply need not apply for adjustment if he wishes to retain the protections of asylum. However, there are numerous benefits to be gained by forgoing the protections of asylum and seeking the status of a lawful permanent resident. An alien’s status as a lawful permanent resident does not leave the alien fully exposed to removal to a dangerous country even if he conducts himself in a manner that gives rise to his removal.

At bottom, the most reasonable reading of § 1159(b) leads to the conclusion that once an asylee has adjusted his status to that of lawful permanent resident, the alien is then fully considered a lawful permanent resident and not an asylee. In his status as a lawful permanent resident, the alien may be removed without a requirement that the Attorney General conduct an asylum termination proceeding under § 1158(c)(2). Assuming that § 1159(b) is ambiguous, it is appropriate to defer to the BIA’s interpretation of the INA in resolving the issue.

Even though the BIA’s one-member decision in Matter of C-J-H was not precedential and not entitled to Chevron deference, the BIA reached a reasonable conclusion in holding that, with adjustment, the alien relinquished his asylum status.

Petition for review denied.

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