Published on:

Asylum Re-Adjustment Not Allowed Says The BIA

In Matter of C-J-H, 26 I&N Dec. 284 (BIA 2014), the Board of Immigration Appeals held that a person who adjusted their status to that of a lawful permanent resident after having been granted asylum cannot readjust their status to avoid removal consequences of criminal convictions.

This decision is a blow to any asylee who adjusted their status pursuant to INA 209(b), (which authorizes adjustment of status of asylees to lawful permanent residents) and who has since been convicted of a crime that makes the person removable. Matter of C-J-H prevents that person from readjusting their status, in conjunction with a waiver of inadmissibility under INA section 209(c).

The BIA reasoned that once a person becomes a lawful permanent resident pursuant to adjustment of status under section 209(b), that person no longer holds the status of an asylee, and therefore cannot adjust status as an asylee under section 209(b). The BIA stated that although section 209(a), which deals with “refugees,” specifically precludes a refugee from readjusting once they have already adjusted, and there is no similar language under section 209(b), which deals with “asylees,” the plain language of the statute and legislative history dictate that if a refugee can’t readjust, then neither can an asylee.

This case further illustrates the critical stage in the criminal proceedings where a non U.S. citizen is charged with a crime. The conclusion that a criminal conviction renders a person removable from the United States hinges on the type of conviction, the length of sentence, and specific language used in the record of conviction (plea agreement, sentencing hearing, factual basis, judgment and sentence). It is imperative that a non U.S. citizen not plead guilty or no contest to a criminal charge, no matter how minor the charge and no matter how lenient the sentence, before consulting with an experienced immigration attorney with a background in criminal law.