3/19/2014. Demystifying Nunc Pro Tunc Asylum: What is Nunc Pro Tunc? Why Apply for Nunc Pro Tunc?

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1 Demystifying Nunc Pro Tunc Asylum: What is Nunc Pro Tunc? Nunc Pro Tunc: is a Latin expression in common legal use in the English language. It means now for then. In general, a court ruling "nunc pro tunc" applies retroactively to correct an earlier ruling. Nunc Pro Tunc Asylum: A principal grant of asylum given to a former derivative asylee, that applies retroactively to the date of the principal s grant or the former derivative s admission date under INA 208. Why Apply for Nunc Pro Tunc? For many derivative asylees, NPT is the only way for them to become eligible to adjust status to LPR. SO, determining whether NPT is necessary must be built into your firm s protocol for doing an asylumbased adjustment screening with new clients. 1

2 Disparate Treatment of Refugees and Asylees: Filing Fee for I-485 is $0 for refugees, $1,070 for asylees. Resident Since date rollback for refugees is date of admission, for asylees is, one year before the date of approval, of the I-485. Travel loans available through IOM for derivative refugees, not for derivative asylees. Adjustment of status mandatory for refugees, optional for asylees. Nunc Pro Tunc may be necessary for derivative asylees, but NOT for derivative refugees. Refugee/ Asylee Adjustment of Status: For refugees, it s statutorily mandated at 8 CFR 209.1(a): Every alien in the United States who is classified as a refugee under part 207 of this chapter, whose status has not been terminated, is required to apply to the Service 1 year after entry in order for the Service to determine his or her admissibility under section 212 of the Act. For asylees, it s not mandatory, 8 CFR 209.2(a): Except as provided in paragraph (a)(2) or (a)(3) of this section, the status of any alien who has been granted asylum in the United States may be adjusted by USCIS to that of an alien lawfully admitted for permanent residence... AoS Eligibility Requirements: Asylees vs. Refugees Refugees: Pursuant to INA 209(a)(1) Must, ha(ve) been admitted to the United States under section 207, plus other eligibility criteria, in order to be eligible for AoS. Asylees: Pursuant to INA 209(b)(3) Must, continue to be a refugee within the meaning of section 101(a)(42)(A) or a spouse or child of such a refugee, plus other eligibility criteria, in order to be eligible for AoS. 2

3 AoS Eligibility Requirements: Asylees vs. Refugees Based on Asylum Status: You may apply to adjust status after you have been granted asylum status in the U.S. if you have been physically present in the U.S. for one year after the grant of asylum, provided that you still qualify as an asylee or as the spouse or child of an asylee. Based on Refugee Status: You may apply to adjust status after you have been admitted as a refugee and have been physically present in the U.S. for one year following your admission, provided that your status hasn t been terminated. Determining Whether Asylee is Derivative or Principal: I-94? Passport w/ stamp of admission pursuant to INA 208? EAD? Ask client? Asylum approval letter I-730 approval notices Scenarios to Evaluate for Necessity of NPT Termination of marriage of principal asylee from derivative spouse asylee Death of Principal asylee Age out of the derivative child asylee Marriage of derivative child asylee Naturalization of principal asylee spouse/ parent Derivative step-child asylee, where biological parent and PA step parent get divorced. 3

4 Relationship Between Principal and Derivative: 1) For eligibility to adjust status under INA 209, asylee must, continue to be a refugee within the meaning of section 101(a)(42)(A) or a spouse or child of such a refugee. 2) Derivative must continue to be a spouse or child 3) Principal must continue to meet the definition of a refugee. When is the Derivative No Longer a Spouse/ Child? 1) Derivative must continue to be the spouse/child of an asylee. Divorce Age-out Marriage (of derivative) Sex Change Divorce: Relevant for Derivative Spouses and Stepchildren 1) Derivative Spouse 2) Derivative Stepchild Both will automatically require NPT where PA asylee has divorced derivative spouse. 4

5 Child Status Protection Act: Aug. 6, 2002 Amended INA 208(b)(3) (B) Continued Classification Of Certain Aliens As Children- An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 209(b)(3), if the alien attained 21 years of age after such application was filed but while it was pending. Yates Memo, Aug. 17, 2004 (HQOPRD 70/6.1) Marriage of Derivative Child INA 101(b)(1): The term "child" means an unmarried person under twenty-one years of age... Married derivative child MUST Nunc Pro Tunc. 5

6 When is the Principal No Longer the Principal? 1) Principal must continue to meet the definition of a refugee. Principal dies. Principal naturalizes. Principal repatriates to the country of persecution and/or other 101(a)(42)(A) criteria. Death of Principal Asylee Parent or Spouse: INA 204(l): surviving relative consideration for certain petitions and applications- (2) ALIEN DESCRIBED- An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was-- (G) an asylee (as described in section 208(b)(3)). Death of Principal Asylee Parent or Spouse: If derivative lived in the U.S. at the time of the death of the principal, AND Continues to reside in the U.S., I-485 based on the family relationship SHALL be approved unless approval wouldn t be in the public interest. 6

7 Naturalization of the Principal Asylee: 1) Naturalized USC doesn t meet the definition of a refugee anymore. 2) Can LPR principal continue to meet the definition of a refugee? If Your Natz. Client is an Asylee: Advise principal asylees pursuing naturalization that if their spouse/child(ren) haven t AoS yet, they may not be eligible to after natz. How to Apply for Nunc Pro Tunc: File form I-589 directly with the Arlington asylum office. (Not TSC.) Put a cover sheet that states, Applicant for Nunc Pro Tunc Asylum: Please do not forward to the Texas Service Center. Answer all q s according to your client s personal knowledge. (Do not reargue the principal s asylum claim.) Include documentation of admission, i.d. and derivative s relationship to PA asylee. 7

8 Trouble Shooting for Nunc Pro Tunc: Derivative doesn t need to independently establish his/her eligibility for asylum. Responses to substantive questions about persecution may refer back to principal. Trouble Shooting for Nunc Pro Tunc: BUT, discretionary review of merits allowed when: 1) Derivative is a national of country different from the principal applicant, and does not appear to have a fear of harm in that country (e.g., a national of France or Canada). 2) Derivative never lived with the principal applicant. 3) Derivative whose spouse/parent appears to have derived asylum through fraud, but that spouse/parent s asylum status has not been terminated. Trouble Shooting for Nunc Pro Tunc: Admissibility under INA 212 NOT assessed. Bars to Asylum in INA 208 ARE applicable. Past Persecutor Particularly Serious Crime Serious non-political crime TRIG 8

9 Random Quirks of NPT: Derivative who has been granted PA status retroactively through Nunc Pro Tunc may be able to file I-730s and/or receive derivative status for their children. Relationship must have existed at PA s initial derivative grant. (Date of retroactivity.) What if AoS Already Filed? Where AoS has already been filed and you discover the presence of an NPT issue, what to do? 1) File for Nunc Pro Tunc ASAP 2) If RFE received, request deferred adjudication to allow for adjudication of NPT. Be prepared to motion to reopen or refile. Questions? 9