New York Lawyer's Legal Updates

Asylum Status: Matter of V-X-, 26 I & N Dec. 147 (BIA 2013)

Author:US Asylum Attorney Alena Shautsova

In its recent decision, BIA affirmatively stated that grant of asylum is not an admission under the INA. Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). What significance does this decision have for asylum status holders?

Admission for immigration purposes is a term of art and it implies certain immigration consequences. Section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006). Determination if a grant of asylum is an admission plays an important part in removal proceedings, because when a person is “admitted” he/she would be charged with the grounds of deportability rather than inadmissibility. The grounds for deportability and inadmissibility differ, and certain criminal convictions may fall into one category but not the other.

As a preliminary matter, when a person is granted asylum in the United States, he/she cannot be removed from the United States unless and until his asylum status is terminated. Section 208(c) of the Act; see also Matter of A-S-J-, 25 I&N Dec. 893, 895 (BIA 2012); 8 C.F.R. § 1208.22 (2013). (For example, one of the reasons for the status to be terminated, is when the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.)

The regulations contemplate that termination of an alien’s asylum status may occur in conjunction with removal proceedings. 8 C.F.R. § 1208.24(f) (2013). In such a case, the DHS has to file a notice of intent to terminate the asylum status along with the Notice to Appear. Ordinarily issues of removability and eligibility for relief from removal should be deferred until a threshold determination is made regarding the termination of asylum status. Also, the BIA has held in Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), that an Immigration Judge need not reach the issue of termination of asylum status if the alien is eligible for, and deserving of, some form of relief that would make termination of asylum status moot, such as adjustment of status under section 209 of the Act, 8 U.S.C. § 1159 (2006).

As such, a person who entered the US without inspection or pursuant to a grant of parole prior to receiving asylum status, has never been admitted into the US and might be charged with the grounds of inadmissibility pursuant to INA Section 212. A person who has been admitted (arrived to the US pursuant to a grant of a visa for example) prior to receiving asylum status, might be charged with the grounds of deportability and INA Section 237.

If you have immigration concerns, consult an experienced New York immigration lawyer at 917-885-2261 and find out about your options.

15 July 2013
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