Return to: Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" || Electronic Research Collections Index || ERC Homepage


U.S. REPORT UNDER THE INTERNATIONAL COVENANT ON 
CIVIL AND POLTICAL RIGHTS
JULY 1994


Article 13 - Expulsion of Aliens

The United States has a strong tradition of 
supporting immigration and has adopted immigration 
policies reflective of the view that immigrants make 
invaluable contributions to the fabric of American 
society.  At present, the United States provides 
annually for the legal immigration of over 700,000 
aliens each year, with special preferences granted 
for family reunification and employment skills 
purposes.  In addition, the United States grants 
admission to some 120,000 refugees from abroad 
annually, and accords political asylum to many 
others within the United States.  Notwithstanding 
these large programs for legal immigration to the 
United States, illegal immigration to the United 
States continues in substantial numbers.  The total 
number of aliens illegally in the United States is 
currently estimated to be over 3 million.  Due to 
the ease of travel and relative lack of residence 
controls within the United States, as well as the 
extensive procedural guarantees accompanying 
deportation, aliens who enter the continental United 
States illegally, or who stay on illegally after an 
initial lawful entry, are often able to remain for 
many years.

Aliens who have entered the United States, whether 
legally or illegally, may be expelled only pursuant 
to deportation proceedings, as described below.  
(Different procedures apply to diplomatic 
representatives, who may be declared persona non 
grata.)  The legal protection for such persons 
includes the extensive procedural safeguards 
provided by the Immigration and Nationality Act 
(INA),  U.S.C.   1101 et seq., and rests 
fundamentally on the constitutional rights of due 
process afforded to all.  As the Supreme Court has 
stated:

     Aliens who have once passed through our gates, 
even illegally, may be expelled only after 
proceedings conforming to traditional standards of 
fairness encompassed in due process of law.  
Shaughnessy v. United States, 206 U.S. 206, 212 
(1953).

     Whatever his status under the immigration laws, 
an alien is surely a "person" [for purposes of 
certain constitutional guarantees] in any ordinary 
sense of that term.  Aliens, even aliens whose 
presence in this country is unlawful, have long been 
recognized as "persons" guaranteed due process of 
law by the Fifth and Fourteenth Amendments.  Plyler 
v. Doe, 457 U.S. 202, 210 (1981).

The term "entry" is generally defined under INA   
101(a)(13) as "any coming of an alien into the 
United States from a foreign port or place."  Aliens 
within the United States who were inspected and 
admitted as well as those who evaded inspection and 
came into the United States illegally are considered 
to have effected an "entry."  Persons who attempt 
illegal entry but are detected at the border prior 
to entry are occasionally allowed into the United 
States for further processing of their entry claims 
(in lieu of return to their home country or 
detention at the border), or under the Attorney 
General's discretionary parole authority.  Such 
excludable aliens, whose presence in the United 
States results solely from the limited, conditional 
permission of the United States Government, are not 
considered to have entered the United States for 
immigration purposes.  They generally are subject to 
exclusion proceedings, as described below, which 
provide some due process protections, although not 
as extensive as those provided in deportation 
proceedings.

I.  Deportation.

Aliens who have entered the United States and who 
violate U.S. immigration laws are subject to 
deportation proceedings.  Grounds for deportation 
include: (1) excludability at time of entry or 
adjustment of status; (2) entry without inspection; 
(3) alien smuggling; (4) marriage fraud; (5) 
criminal offenses; (6) falsification of documents; 
(7) security grounds; (8) public charge grounds.

Deportation Hearing.  In general, a proceeding to 
determine the deportability of an alien in the 
United States is initiated with the filing of an 
Order to Show Cause (OSC), which describes the 
grounds for deportation, with the Office of the 
Immigration Judge. 8 C.F.R.    242.1(a), 3.14(a).  
INS may either take the alien into custody under the 
authority of a warrant, or release the alien on bond 
or on conditional parole.  INA   242 (a)(1); 8 
C.F.R.    242.2 (c)(1), (2).   

Generally, an alien "is not and should not be 
detained or required to post bond except on a 
finding that he is a threat to the national security 
. . . or that he is a poor bail risk."  Matter of 
Patel, 15 I&N Dec. 666 (BIA 1976).  The Attorney 
General is, however, obligated to take into custody 
any alien convicted of an aggravated felony, but may 
release the alien, if the alien demonstrates that 
the alien "is not a threat to the community and that 
the alien is likely to appear before any scheduled 
hearings."  INA   242(a)(2)(B); 8 C.F.R.   3.19(h).  
Custody and bond determinations made by the 
Immigration and Naturalization Service (INS) may be 
reviewed by an immigration judge and may be appealed 
to the Board of Immigration Appeals (BIA).  An 
alien's release on bond or parole may be revoked at 
any time in the discretion of the Attorney General. 
INA   242(a).

Deportation hearings are open to the public, except 
that the immigration judge may, for the purpose of 
protecting witnesses, parties, or the public 
interest, limit attendance or hold a closed hearing 
in any specific case.  8 C.F.R.    242.16(a), 
3.27(b); 3.27(c).  Furthermore, an applicant for 
asylum or withholding of deportation may expressly 
request that the evidentiary hearing be closed to 
the public. 8 C.F.R.   242.17(c)(4)(i).

During deportation proceedings, the immigration 
judge has the authority to determine deportability, 
to grant discretionary relief, and to determine the 
country to which an alien's deportation will be 
directed.  The immigration judge must also: (1) 
advise the alien of the alien's right to 
representation, at no expense to the Government, by 
qualified counsel of his choice; (2) advise the 
alien of the availability of local free legal 
services programs; (3) ascertain that the alien has 
received a list of such programs and a copy of INS 
Form I-618, Written Notice of Appeal Rights; (4) 
advise the alien that the alien will have a 
reasonable opportunity to examine and object to 
adverse evidence, to present evidence, and to cross-
examine witnesses presented by the Government; (5) 
place the alien under oath; (6) read the factual 
allegations and the charges in the order to show 
cause to the alien and explain them in nontechnical 
language, and enter the order to show cause as an 
exhibit in the record.  8 C.F.R.   242.16(a).

The INA mandates that the "alien shall have a 
reasonable opportunity to be present" at the 
deportation proceeding.  INA   242(b).  The BIA has 
held that aliens "must be given a reasonable 
opportunity to present evidence on their own behalf, 
including their testimony."  Matter of Tomas, 19 I&N 
Dec. 464, 465 (BIA 1987).  The BIA has further noted 
that in most cases, "all that need be translated are 
the immigration judge's statements to the alien, the 
examination of the alien by his counsel, the 
attorney for the Service, and the immigration judge, 
and the alien's responses to their questions."  
Matter of Exilus, 18 I&N 276, 281 (BIA 1982).  
However, "the immigration judge may determine . . . 
that the alien's understanding of other dialogue is 
essential to his ability to assist in the 
presentation of his case." Id.  

In a proceeding before an immigration judge "in 
which the [alien] fails to appear, the immigration 
judge shall conduct an in absentia hearing if the 
immigration judge is satisfied that notice of the 
time and place of the proceeding was provided to the 
[alien] at a prior hearing or by written notice to 
the [alien] or to [the alien's] counsel of record, 
if any, at the most recent address contained in the 
Record of Proceeding."  8 C.F.R.   3.26.

If the alien concedes deportability and the alien 
has not applied for discretionary relief other than 
voluntary departure (discussed below), the 
immigration judge may enter a summary decision 
ordering deportation or granting voluntary departure 
with an alternate order of deportation.  8 C.F.R.   
242.18(b).  The immigration judge may not accept an 
admission of deportability "from an unrepresented 
respondent who is incompetent or under age 16 and is 
not accompanied by a guardian, relative, or friend; 
nor from an officer of an institution in which [an 
alien] is an inmate or patient."  8 C.F.R.   
242.16(b).

In cases where deportability is at issue and/or 
where the alien has applied for discretionary 
relief, the immigration judge receives evidence on 
the issues.  The Government must establish an 
alien's deportability by clear, convincing, and 
unequivocal evidence and must establish that the 
person is an alien.  8 C.F.R.   242.14(a).  If 
deportability is based on an entry violation, such 
as entry without inspection, however, after the INS 
establishes identity and alienage of the person, the 
burden shifts to the alien to show the time, place, 
and manner of his entry into the United States.  If 
this burden of proof "is not sustained, such person 
shall be presumed to be in the United States in 
violation of law."  INA   291.  

Relief from Deportation.  The immigration judge 
determines applications under INA    208(a) (asylum) 
(discussed under U.S. Asylum and Refugee Policy, 
below), 212 (waivers of excludability), 243(h) 
(withholding of deportation) (also discussed below), 
244(a) (suspension of deportation), 244(e) 
(voluntary departure), 245(a) (adjustment of 
status), and 249 (registry).  

Waivers.  Waivers are available for some of the 
grounds of deportation.

Suspensions of Deportation.  Under INA   244(a), the 
Attorney General may "suspend deportation and adjust 
the status to that of an alien lawfully admitted for 
permanent residence, in the case of an alien . . . 
who applies for suspension of deportation" and (1) 
is deportable; (2) subject to certain exceptions, 
has been physically present in the United States for 
a continuous period of not less than seven years 
immediately preceding the date of such application; 
(3) proves that during all of such period he was and 
is a person of good moral character; and (4) is a 
person whose deportation would in the opinion of the 
Attorney General result in extreme hardship to the 
alien or to his spouse, parent, or child, who is a 
citizen of the United States or an alien lawfully 
admitted for permanent residence.  INA   244(a)(1).

Voluntary Departure.  The Attorney General may 
permit an alien to "depart voluntarily from the 
United States at his own expense in lieu of 
deportation" if such alien (1) is not deportable for 
criminal offenses, falsification of documents or on 
security grounds; (2) is not an aggravated felon; 
and (3) establishes "to the satisfaction of the 
Attorney General that he is, and has been, a person 
of good moral character for at least five years 
immediately preceding his application for voluntary 
departure."  INA   244(e)(1).

Registry.  INA   249 generally provides that the 
Attorney General may create a record if lawful 
admission for permanent residence for an alien, as 
of the date of the approval of his application, if 
(1) such alien is (a) not excludable as participant 
in Nazi persecutions or genocide and (b) not 
excludable under INA   212(a) "as it relates to 
criminals, procurers, and other immoral persons, 
subversives, violators of the narcotic laws or 
smugglers of aliens;" and (2) the alien establishes 
that he (a) entered the United States prior to 
January 1, 1972; (b) has had residence in the United 
States continuously since such entry; (c) is a 
person of good moral characters; and (d) is not 
ineligible for citizenship. INA   249; see also 8 
C.F.R.   249.1 (discussing waivers of 
inadmissibility for certain exclusion grounds in 
conjunction with registry applications).

Decisions and Appeals.  A decision of an immigration 
judge in a deportation hearing may be written or 
oral.  Appeal from the decision lies with the BIA.  
8 C.F.R.   242.21.  A final order of deportation may 
be reviewed by federal courts, but will not be 
reviewed "if the alien has not exhausted the 
administrative remedies available to him as of right 
under the immigration laws and regulations or if he 
has departed from the United States after the 
issuance of the order."  INA    106 (c).  The 
immigration judge may upon the judge s  own motion, 
or upon motion of the trial attorney, or the alien, 
reopen any case which the judge decided, "unless 
jurisdiction in the case is vested in the Board of 
Immigration Appeals."  8 C.F.R.   242.22.  A motion 
to reopen "will not be granted unless the 
immigration judge is satisfied that evidence sought 
to be offered is material and was not available and 
could not have been discovered or presented at the 
hearing." Id.  

II.  Exclusion

An alien has the burden of satisfying the INS 
officer at the border point of entry that the alien 
is entitled to enter the United States and not 
subject to exclusion.  If the officer concludes the 
alien is not clearly entitled to enter, the officer 
must detain the alien for further inspection.  INA   
235(b).  The alien may be released on bond or 
parole; the standards for release are essentially 
the same as they are in deportation proceedings.

Exclusion proceedings are held before immigration 
judges. See 8 C.F.R.   236.  They are not public, 
unless the alien requests that they be.  8 C.F.R.   
236.2(a).  Unlike deportation cases, the authority 
to make detention decisions rests with the INS, 
rather than the immigration judge.

The immigration judge must inform the alien of the 
nature and purpose of the hearing; advise the alien 
that the alien has a statutory right to have an 
attorney at no cost to the government, and of the 
availability of free legal services programs; 
ascertain that the applicant has received a list of 
such programs; request the alien to determine then 
and there whether the alien desires representation; 
and advise the alien that the alien will have a 
reasonable opportunity to present evidence, to 
examine and object to adverse evidence, and to 
cross-examine witnesses presented by the government.

Except for aliens previously admitted to the United 
States for lawful permanent residence, aliens have 
the burden of proving their admissibility in 
exclusion proceedings.  The immigration judge can 
grant various forms of relief, including waivers, 
adjustment of status under certain conditions, and 
political asylum and withholding of exclusion.  
Suspension of deportation and voluntary departure 
are not available.

The immigration judge's decision may be oral or 
written.  The alien may appeal to the BIA.  8 C.F.R. 
   3.1(h), 236.7.  Attorney General review of the 
BIA's decision is available only upon request by the 
INS Commissioner, the BIA Chairman, or a majority of 
the BIA, or in the discretion of the Attorney 
General.

Following a final determination of exclusion, an 
alien may surrender himself to the custody of the 
INS, or may be notified to surrender to custody.  An 
alien taken into custody either upon notice to 
surrender or by arrest may not be deported less than 
72 hours thereafter unless the alien consents in 
writing.  8 C.F.R.   237.2.

An alien detained pending or during exclusion 
proceedings may seek further review in federal court 
under a writ of habeas corpus.        


III. United States Refugee and Asylum Policy

The refugee and asylum policy of the United States, 
set forth primarily in the Refugee Act of 1980 and 
the Immigration and Nationality Act (the INA), was 
created in accordance with the strong, historical 
commitment of the United States to the protection of 
refugees and in compliance with the 1967 United 
Nations Protocol Relating to the Status of Refugees.  
The Protocol, to which the United States has 
acceded, adopted the operative provisions of the 
1951 United Nations Convention Relating to the 
Status of Refugees.

Under the INA, persons within the United States may 
seek refugee protection  through a grant of asylum 
or withholding of deportation.  The standard for 
such determinations is that provided in the 
Protocol, defining a refugee as:  "any person who is 
outside of any country of such person's nationality 
or, in the case of a person having no nationality, 
is outside any country in which such person last 
habitually resided, and who is unable or unwilling 
to return to, and is unable or unwilling to avail 
himself or herself of the protection of, that 
country because of persecution or a well-founded 
fear of persecution on account of race, religion, 
nationality, membership in a particular social 
group, or political opinion."  INA   101(a)(42)(A); 
8 U.S.C.   1101(a)(42)(A).  Refugee status is not 
available to "any person who 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," or for aliens 
who have been convicted of an aggravated felony.  
INA    101(a)(42)(B) and 208(d); 8 U.S.C.    
1101(a)(42)(B) and 1158(d).

At present, there are some 300,000 asylum claims 
pending in various stages of adjudication; over 
100,000 new claims were filed in Fiscal Year 1992.  
A related form of protection, temporary protected 
status, is available to persons already within the 
United States when the Attorney General determines 
that certain extreme and temporary conditions in 
their country of nationality (such as ongoing armed 
conflict or an environmental disaster) generally do 
not permit the United States to return them to that 
country in safety.

In addition, the United States maintains a 
substantial program for providing assistance to 
refugees overseas.  The United States overseas 
refugee admissions program, which also uses the 
Protocol definition of refugee, provides for the 
admission and resettlement in the United States of 
over 120,000 refugees of special humanitarian 
concern to the United States each year from 
throughout the world.  In addition, the United 
States provides on-site assistance, primarily 
through relevant international organizations such as 
the United Nations High Commissioner for Refugees, 
the International Committee of the Red Cross, and 
the International Organization for Migration, in the 
amount of over $300 million dollars each year, not 
only to "Protocol refugees" but also to others who 
are suffering from the disruptive effects of 
conflict or other forms of dislocation.  In the last 
three years alone, the United States has contributed 
over $1 billion in assistance to refugees throughout 
the world. 

Refugee Admissions.  The INA provides for the 
admission of refugees outside the United States.  
Each year the President, after appropriate 
consultation with Congress, determines an authorized 
admission level for refugees.  For example, the 
admission ceiling for refugees in 1994 was 121,000.   
This annual ceiling represents the maximum number of 
refugees allowed to enter the United States each 
year, allocated by  world geographical region.  INA 
  207(a).  The President may accommodate an 
emergency refugee situation by increasing the 
refugee admissions ceiling for a twelve-month 
period.  INA   207(b); 8 U.S.C.   1157(b).

Persons applying in overseas offices for refugee 
protection in the United States must satisfy four 
criteria.  They must: (1) fall within the definition 
of a refugee set forth in the INA; (2) be among the 
types of refugees determined to be of special 
humanitarian concern to the United States; (3) be 
admissible under the Immigration and Nationality 
Act; and (4) not be firmly resettled in any foreign 
country.  

The refugee application process originates either at 
a United States embassy or at a designated consular 
office, if distance makes direct filing at an 
embassy impracticable.  8 C.F.R.   207.1(a).  
Interviews are then conducted by  employees of the 
Immigration and Naturalization Service.  There 
exists no formal procedure for either administrative 
appeal or judicial review of adverse decisions.  The 
applicant has the burden of showing entitlement to 
refugee status.  8 C.F.R.   208.8(d).

Asylum.  Asylum applications may be submitted by 
persons who are physically present in the United 
States.  Asylum may be granted without regard to the 
applicant's immigration status or country of origin.  
There are two paths for an alien present in the 
United States seeking asylum.  First, the alien may 
come forward to the INS to apply "affirmatively."  
Second, the alien may seek asylum as a defense to 
exclusion or deportation proceedings, even after a 
denial of asylum through the affirmative process.  
Grants of asylum are within the discretion of the 
Attorney General under either process, but the 
affirmative asylum process is executed under the 
auspices of the INS, while the exclusion and 
deportation procedures fall within the jurisdiction 
of the Executive Office for Immigration Review 
within the Department of Justice.

Affirmative Asylum.  Affirmative asylum claims are 
heard and decided by a corps of INS asylum officers 
located in seven regional offices.  The Asylum 
Officer conducts an interview with the applicant "in 
a nonadversarial manner ... to elicit all relevant 
and useful information bearing on the applicant's 
eligibility."  8 C.F.R.   208.9(b).  The applicant 
may have counsel present at the interview and may 
submit the affidavits of witnesses.  In addition, 
the applicant may supplement the record within 
thirty days of the interview.  8 C.F.R.   208.9.         
Upon completion of the interview, the asylum officer 
must forward a copy of the asylum application to the 
Bureau of Human Rights and Humanitarian Affairs 
(BHRHA) (recently renamed the Bureau of Democracy 
Rights and Labor) of the Department of State.  The 
BHRHA may comment on the application within 45 days.  
The asylum officer may make a final decision if no 
response from the BHRHA arrives within 60 days.  8 
C.F.R.   208.11.

The asylum officer's decision must be in writing 
and, if asylum is denied, the decision must include 
a credibility assessment.  8 C.F.R.   208.17.  The 
alien has the right to specific reasons for denial 
and the right to both factually and legally rebut 
the denial.  8 C.F.R.    103.3(a) and 103.2(b)(2).  
The decision of the asylum officer is reviewed by 
the INS's Office of Refugees, Asylum, and Parole 
(CORAP), but the applicant has no right to appeal.  
8 C.F.R.   208.18(a). 

Asylum claims must be denied when:  (1) the alien 
has been convicted of a particularly serious crime 
in the United States and constitutes a danger to the 
community; (2) the alien has been firmly resettled 
in a third country; or (3) there are reasonable 
grounds for regarding the alien as a threat to the 
security of the United States.  8 C.F.R.   
208.14(c).  In addition, asylum officers may use 
discretion in asylum denials.

Asylum officers also have limited power to revoke 
asylum and relief under the "withholding of 
deportation" provision of the INA (  243(h)).  This 
power may be exercised when:  (1) the alien no 
longer has a well-founded fear of persecution or is 
no longer entitled to relief under   243(h) because 
of changed country conditions; (2) there existed 
fraud in the application such that the alien was not 
eligible for asylum at the time it was granted; or 
(3) the alien has committed any act that would have 
been grounds for denial.  8 C.F.R.   208.24(a)(b).

Once an affirmative asylum application is denied, 
the asylum officer is empowered, if appropriate, to 
initiate the alien's exclusion or deportation 
proceedings.

Asylum and Withholding of Exclusion/Deportation in 
Exclusion or Deportation Proceedings.  If an alien 
has been served with an Order to Show Cause to 
appear at a deportation hearing or a notice to 
appear at an exclusion hearing, he must appear 
before an immigration judge, with whom he may file 
an asylum application.  The filing of an asylum 
application is also considered a request for 
withholding of deportation or exclusion under INA   
243(h).  

Relief under INA   243(h) differs from a request for 
asylum in three ways.  First,   243(h) provides 
relief from deportation or exclusion to a specific 
country where the applicant's "life or freedom would 
be threatened," while asylum protects the alien from 
deportation generally and only requires a well-
founded fear of persecution.  Second, relief under   
243(h) cannot result in permanent residence, while 
asylees are eligible for permanent residence after 
one year.  Third, relief under   243(h) is mandatory 
while asylum is a discretionary grant.

An immigration judge must consider a   243(h) claim 
"de novo regardless of whether or not a previous 
application was filed and adjudicated by an Asylum 
Officer." 8 C.F.R.   208.2(b).  Like an asylum 
officer, the Immigration Judge must request an 
advisory opinion from the BHRHA and wait 60 days 
before rendering a final decision.

The alien will be denied   243(h) relief and will 
remain subject to exclusion or deportation if the 
alien: (1) engaged in persecution of others; (2) has 
been convicted of a particularly serious crime that 
constitutes a danger to the community of the United 
States; (3) has committed a serious nonpolitical 
crime outside of the United States; or (4) may 
represent a danger to the security of the United 
States.  INA   243(h)(2).

Denial of asylum and withholding of deportation by 
an Immigration Judge can result in a final order of 
deportation or exclusion.  The alien may appeal to 
the Board of Immigration Appeals within ten days of 
the Immigration Judge's order.  Appeal to federal 
courts is possible within ninety days of the Board's 
decision.  INA   106(a)(1); 8 U.S.C.   1105(a)(1).

Parole Under INA   212(d)(5)(B).  A refugee may be 
paroled into the United States by the Attorney 
General only if there exist "compelling reasons in 
the public interest with respect to that particular 
alien" to parole rather than admit the person as a 
refugee under INA   207. INA   212(d)(5)(B).  Parole 
allows an alien to remain in the United States 
temporarily until a final status decision is made.  
Parole is not equivalent to an "admission," and thus 
leaves the alien subject to exclusion.  

The Attorney General has created a "special interest 
parole" process "on an exceptional basis only for an 
unspecified but limited period of time" pursuant to 
the Lautenberg Amendment of the Foreign Operations 
Appropriations Act. Pub. L. No. 101-167.  Under this 
provision, certain persons from Cambodia, Laos, 
Vietnam, and the former Soviet Union (specifically 
Jews, Evangelical Christians, Ukrainian Catholics, 
and Ukrainian Orthodox Christians) who were 
inspected and paroled into the United States between 
August 15, 1988 and September 30, 1994 after being 
denied refugee status are eligible for adjustment of 
status.

Temporary Protected Status.  Under INA   244A, the 
Attorney General has the authority to grant 
temporary protected status to aliens in the United 
States, temporarily allowing foreign nationals to 
live and work in the United States without fear of 
being sent back to unstable or dangerous conditions.  
The United States thus may become, at the Attorney 
General's discretion, a temporary safe haven for 
foreign nationals already in this country if one of 
three conditions exist:  (1) there is an ongoing 
conflict within the state which would pose a serious 
threat to the personal safety of returned nationals; 
(2) there has been an earthquake, flood, drought, 
epidemic, or other environmental disaster in the 
state resulting in a substantial but temporary 
disruption of living conditions;  the state is 
temporarily unable to accept the return of 
nationals; and the state officially asks the 
Attorney General for a designation of temporary 
protected status; or (3) there exist extraordinary 
and temporary conditions in the state that prevent 
nationals from returning in safety, as long as the 
grant of temporary protected status is not contrary 
to the national interest of the United States.  INA 
  244A(b)(1).  Designation of temporary protected 
status may last for six to eighteen months, with the 
possibility of extension.

An alien is ineligible for temporary protected 
status if he has been convicted of at least one 
felony or two or more misdemeanors.  8 C.F.R.   
240.4.  Ineligibility is also based upon the grounds 
for denial of relief under INA   243(h)(2), as 
stated above.  Temporary protected status may be 
terminated if:  (1) the Attorney General finds that 
the alien was not eligible for such status; (2) the 
alien was not continuously physically present, 
except for brief, casual, and innocent departures or 
travel with advance permission; (3) the alien failed 
to register annually; or (4) the Attorney General 
terminates the program.  INA   244A(c)(3).

An alien granted temporary protected status cannot 
be deported during the designated period and shall 
be granted employment authorization.  The alien may 
also travel abroad with advance permission.  
Temporary protected status also allows the alien to 
adjust or change status.

At present, nationals from four states are eligible 
for temporary protected status:  (1) Bosnia-
Herzegovina, until August 1994, (2) Liberia, until 
March 1995, (3) Somalia, until September 1994 and 
(4) Rwanda, until June 1995.  Nationals of El 
Salvador are eligible for a comparable form of 
temporary protection through December 1994.

Rights of Refugees and Asylees.  Certain benefits 
are available to an alien applying for asylum.  
First, as long as the asylum claim appears 
nonfrivolous, the applicant may be granted 
employment authorization while the asylum 
application is pending.  Second, the applicant may 
be granted advance parole to travel abroad to a 
third country for humanitarian reasons.

In April 1992, the INS created a "pre-screening" 
procedure to identify genuine asylum seekers whose 
parole from detention might be appropriate while 
their asylum claims are pending.  Specially trained 
asylum pre-screening officers interview applicants 
in detention and evaluate asylum claims.  If the 
claimant is deemed to have a "credible fear of 
persecution," then the alien may be released pending 
the asylum claim.  The alien must, however, agree to 
check in periodically with the INS and appear at all 
relevant hearings.

The immediate family (spouse and children) of the 
person granted admission refugee or political asylum 
can accompany or follow such person without having 
to apply for protection independently.  INA   
207(c)(2) and   208(c). 

Finally, one who entered the United States as a 
refugee is eligible for permanent resident status 
after one year of continuous physical presence in 
the United States.  The number of refugees adjusting 
to permanent resident status is not subject to the 
annual limitation on immigrants into the United 
States.  INA   209.  An asylee may also apply for 
permanent resident status after being continuously 
present in the United States for at least one year 
after being granted asylum.  There are 10,000 visas 
set aside each year for asylees applying for 
residency.
To the top of this page