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legalgems
legalgems, Lawyer
Category: Immigration Law
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Can i return home after been granted card through asylum? my

Customer Question

can i return home after been granted green card through asylum?
my mother is in a hospital bed and might stay there, wanna see her before shes go
Submitted: 11 months ago.
Category: Immigration Law
Expert:  legalgems replied 11 months ago.

I am very sorry to hear this;

While most green card holders are permitted to travel outside the US, asylee's are given extra scrutiny; for example, if a resident travels abroad, they can apply for a re-entry permit (I-131) if they will be gone for over a year, to help maintain proof of their intent to return to the US. For example, status can be revoked based on the following:

  • Move to another country, intending to live there permanently.
  • Remain outside of the United States for an extended period of time, unless you intended this to be a temporary absence, as shown by:
    • The reason for your trip;
    • How long you intended to be absent from the United States;
    • Any other circumstances of your absence; and
    • Any events that may have prolonged your absence.
    • Note: Obtaining a re-entry permit from USCIS before you leave, or a returning resident visa (SB-1) from a U.S. consulate while abroad, may assist you in showing that you intended only a temporary absence.
  • Fail to file income tax returns while living outside of the United States for any period.
  • Declare yourself a “nonimmigrant” on your U.S. tax returns. https://www.uscis.gov/green-card/after-green-card-granted/maintaining-permanent-residence

It can be revoked if fraud is suspected.

However, for asylum cases, since the person was granted legal status based on emergency situations, returning to one's country can lead to a revocation as it can be interpreted as an admission that the asylee no longer fears persecution in their home country, or lied about their fears of persecution to obtain asylum. Even after an asylee receives lawful permanent residence in the US, returning to a country from which a person was granted asylum can potentially endanger that person’s immigration status in the United States-for example, traveling with that passport can lead the United States to conclude that an asylee has sought and received protection from their home country and can lead to revocation of a person’s asylum status. Asylees who travel outside the United States should consult an attorney about applying for a Refugee Travel Document, which does not carry the same risk as using the asylee’s foreign passport. (in that case one must take care to ensure that it does not expire while out of the country as the U.S. is not required to renew this for a person who is abroad and if one does not have proper travel documentation they may be denied entry into the United States. This discusses the Refugee Travel document along with concerns with asylee's traveling back to their home country:

https://www.uscis.gov/sites/default/files/USCIS/Resources/D4en.pdf

If you decide to go back I would urge you to meet with an attorney to discuss ways in which to minimize the possible revocation of one's status (ie documenting the emergency, obtaining the proper documents, helping to establish that while one is willing to take a risk to return to the home country-due to the emergency for example-that does not necessarily negate the individual's fear of persecution).

Expert:  legalgems replied 11 months ago.

Thank you for using Just Answer.
I hope the information provided was useful.

Here is a link to the bar association's legal referral site:
http://apps.americanbar.org/legalservices/lris/directory/

Should you have further questions please post here; otherwise kindly

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Thank you and take care!

Customer: replied 11 months ago.
The thing is i only want to return for Like 30 days only. Will it make a différence?
Expert:  legalgems replied 11 months ago.

The problem is that it can make a difference- because if one returns home then the department can see that as an indication that the individual really didn't have a fear of persecution; that is why it is important to have an attorney review the facts specific to your situation-ie the reason asylum was granted, the manner in which one is returning (ie network of people that can provide shelter so that one is willing to take a risk due to an emergency situation etc). With all the focus on immigration currently, it makes it that much more difficult to anticipate what will happen.

Expert:  legalgems replied 11 months ago.

This is from the state's website:

Q. What if I Need to Travel After I’ve Been Granted Asylum?
A. If you plan to depart the United States after being granted asylum, you must obtain permission to return to the United States before departure by obtaining a refugee travel document. Your spouse and children who were granted asylum must also obtain a refugee travel documents before leaving as well.

A refugee travel document may be used for temporary travel abroad and is required for readmission to the United States as an asylee. If you do not obtain a refugee travel document in advance of departure, you may be unable to re-enter the United States, or you may be placed in removal proceedings before an Immigration Judge.

To obtain a refugee travel document file Form I-131, Application for Travel Document. https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-and-answers-asylum-eligibility-and-applications

But the concern is whether a return will be seen as proof that the person no longer needs asylum. While in the past serious illness of a parent, spouse or child has been deemed a compelling reason (as opposed to traveling for vacation/business purposes) it is not a guarantee. Here is a very in depth analysis.

Customer: replied 11 months ago.
I'm Have a Green Card. Which allow me to return hôme, i ÇAN simply travel with my country passport
Expert:  legalgems replied 11 months ago.

An asylee is given different consideration unfortunately based on the above information - please review those links as it shows the concerns that are unique to that situation. If an asylee travels with their country passport that also risks one's status as it may indicate the intent to seek to avail oneself of the protection of that country.

Here is that statute:

\ slb \ SERVICE LAW BOOKS MENU \ IMMIGRATION AND NATIONALITY ACT \ INA: ACT 208 - ASYLUM 1/
Previous Document | Next Document

INA: ACT 208 - ASYLUM 1/

Sec. 208. (a) Authority to Apply for Asylum.-

(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).

(2) Exceptions. -

(A) Safe third country. - Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or po litical opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

(B) Time limit. - Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of alien's arrival in the United States.

(C) Previous asylum applications. - Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.

(D) Changed conditions. - An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing the application within the period specified in subparagraph (B).

(E) 7/ APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).

(3) Limitation on judicial review.3/4No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

(b) Conditions for Granting Asylum. -

(1) In general. - 4/ (A) ELIGIBILITY- The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by 4/ the Secretary of Homeland Security or the Attorney General under this section if 4/ the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section101(a)(42)(A) .

(B) 4/ BURDEN OF PROOF-

(i) IN GENERAL- The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) .To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

(ii) SUSTAINING BURDEN- The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

(iii) CREDIBILITY DETERMINATION- Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal c onsistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

(2) Exceptions. -

(A) In general. - Paragraph (1) shall not apply to an alien if the Attorney General determines that -

(i) the alien 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;

(ii) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;

(iii) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

(iv) there are reasonable grounds for regarding the alien as a danger to the security of the United States;

(v) the alien is 5/ described in subclause (I), (II), (III), (IV), or (VI) 2/ of section 212(a)(3)(B)(i) or section 237(a)(4)(B) (relating to terrorist activity), unless, in the case only of an alien 5/ described in subclause (IV) of section 212(a)(3)(B)(i) , the Attorney General determines, in the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or

(vi) the alien was firmly resettled in another country prior to arriving in the United States.

(B) Special rules.-

(i) Conviction of aggravated felony. - For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.

(ii) Offenses. - The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).

(C) Additional limitations. - The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).

(D) No judicial review. - There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).

3/ (3) TREATMENT OF SPOUSE AND CHILDREN-

(A) IN GENERAL- A spouse or child (as defined in section 101(b)(1)(A) , (B) , (C) , (D) , or (E) ) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.

(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.

(C) 8/ INITIAL JURISDICTION- An asylum officer (as defined in section 235(b)(1)(E) ) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b) .

(c) Asylum Status. -

(1) In general.- In the case of an alien granted asylum under subsection (b), the Attorney General -

(A) shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;

(B) shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and

(C) may allow the alien to travel abroad with the prior consent of the Attorney General.

(2) Termination of asylum. - Asylum granted under subsection (b) does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that -

(A) the alien no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in circumstances;

(B) the alien meets a condition described in subsection (b)(2);

(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;

(D) the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of 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

(E) the alien has acquired a new nationality and enjoys the protection of the country of his new nationality.

(3) Removal when asylum is terminated. - An alien described in paragraph (2) is subject to any applicable grounds of inadmissibility or deportability under section 212(a) and 237(a) , and the alien's removal or return shall be directed by the Attorney General in accordance with sections 240 and241 .

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1687.html

Expert:  legalgems replied 11 months ago.

As such it is very important to have an attorney review the specifics of your situation to help determine if one would be able to safely travel; unfortunately an asylee is in a different position than most individuals, as set forth above and in the statute. I know this information is not ideal but I want to provide as accurate as information as possible given the risks involved.

Kindly rate positively -3, 4 or 5 stars - thank you!

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