The BIA’s recent decision in Matter of D-K- provides much-needed guidance for refugees in removal proceedings, but the two central rules it establishes may end up providing more confusion than clarity. In 1986, the BIA held in Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986) that a refugee may not be placed in immigration proceedings until there is a prior determination by the DHS that the alien is inadmissible to the United States. The BIA now says no such determination is necessary, reasoning that the implementing regulations for refugee adjustment have been “streamlined.” That means, for now, that refugees can be charged with removability even if they have not first been found to be inadmissible by a DHS officer.
Matter of D-K- also seems to contradict the Attorney General’s decision in Matter of Jean. In Matter of Jean, the Attorney General said that when a refugee is placed in removal proceedings “The INS is free to charge the alien in the ensuing proceeding, which is overseen by an immigration judge, with any applicable ground of inadmissibility or deportability.” A 3-member panel of the BIA is not typically allowed to reverse a decision of the Attorney General. See 8 C.F.R. 1003.1(f)-(h).
Given the confusion this decision raises, we don’t expect this to be the last word on refugee admission. But for now, refugees are “admitted” and cannot be charged as “inadmissible” in removal proceedings.