This is the third part of a 4 part article which will conclude tomorrow. Tomorrow's installment will discuss the new hope for the DREAM Act designed to legalize undocumented students in the U.S.

By Alan Lee, Esq.^†‡

Part III - Derivative Asylees Allowed to Travel to the Principal's Country of Persecution

A large question which has faced many immigration attorneys over a number of years has been what advice to give to families of asylees who hold dependent asylee status and wish to return temporarily to the homeland of their principal's persecution. U.S.C.I.S. in the past has been mum on the subject. The main argument for allowing the families to travel is that they themselves are not necessarily the persecuted, but the family members, and their ability to travel back and forth unimpeded by the home government should not deprive them of their status which is dependent upon family connection with the principal asylee. The fear of derivative asylees wishing to travel back to their homelands has been that U.S. Customs and Border Enforcement (CBP) would intercept them at the airports or other ports of entry and place them in removal proceedings for not having a valid fear of persecution. U.S.C.I.S. released a fact sheet in January 2007 which spoke of the risks of travel for asylees, but did not address the issue of derivatives. We (along with undoubtedly others) raised this question for the American Immigration Lawyers Association (AILA) to bring to the attention of U.S.C.I.S., and U.S.C.I.S. fortunately answered the question at the Asylum Headquarters/ Non-Governmental Organization liaison meeting on March 6, 2007, in Washington D.C..

The answer provided was that the fact sheet was just a clarification of the rules and made no policy changes -- that derivative asylees are permitted to travel to the principal's country of persecution. As they were not granted asylum on their individual cases, CIS would not seek to terminate their asylum status upon such travel. However, U.S.C.I.S. noted that normal procedures would still have CBP questioning the derivative asylees when they reenter the United States.

U.S.C.I.S. headquarters further spoke on the effect of a short trip by the principal asylee to the homeland of persecution in stating that such would most likely not be considered reavailment (availing oneself again to a country's protections) by noting that reavailment is really about establishing ties and not about visiting family. However, readers should note that further questions may arise with CBP if principal asylees obtain passports or extensions of passports from the homeland of persecution prior to traveling. Also that the term "short trip" was not defined (is it two weeks or 90 days or 6 months?), nor the situation in which a businessman travels to the homeland for several short trips per year on behalf of his or her employer. Principal asylees appear have a partial but not complete answer as to their ability to travel to the homeland of persecution, and should remain cautious in planning such trips.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2007 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.