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.

The more significant effect of Matter of D-K- will be on the definition of “admission” for refugees.  The BIA now says refugees are to be charged with removability under INA 237, not inadmissibility under INA 212, because they have been “admitted.”  This change should have several profound effects.  First, DHS has a history of arresting refugees and charging them as “arriving aliens,” which limits their ability to obtain a bond hearing before an Immigration Judge. That practice, it appears, cannot survive Matter of D-K-. Second, because prior BIA decisions were unclear about whether refugees had been “admitted,” the procedure for challenging removability in removal proceedings was, to say the least, confusing.  The BIA now concludes that refugees have been “conditionally admitted” and that they are “reinspected for admission in a different status” when they adjust their status. This is a strange outcome, as the language of INA 209 regarding adjustment of status for refugees does not speak of “re-admission” but “admission to the United States as an immigrant.” The concept of “two admissions” from Matter of D-K- seems to conflict with the idea that once a refugee has adjusted her status, she is to “be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien’s arrival into the United States.” INA 209(a)(2). It seems clear that Congress intended refugees to be admitted once, with conditions.  After a year of presence, they were to be inspected and, if they were found admissible, were to have the conditions lifted and were to be granted admission as permanent residents as of the date of their original arrival.  That view is consistent with the way the INA treats other conditional statuses.  See INA 216.

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.