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.
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