In the old days, when a person immigrated to the United States, he would probably never return home or see his family again. For example, when my Great-Grandfather David came to the U.S. from Russia in 1904, he left behind his parents and six siblings. He never saw them again, and as far as we know, they and their families died in the Holocaust.
Today, it’s a different story. It’s much easier to remain in contact with the homeland and to return for a visit. However, for people who have received asylum in the United States, return to the home country may result in the termination of their status. See INA § 208(c)(2).
Despite the possibility of termination, my clients who have received asylum sometimes need to return home. There are different reasons for this–some want to visit sick relatives or help relatives who are in trouble. Others are political activists or journalists, and they want to return home to continue their activities. A few of my clients from Afghanistan wanted to return to their country as interpreters with the U.S. military.
In cases like these, I explain the legal consequences of returning to the home country so that the client can weigh the risk of losing asylum status against her desire to go home.
The provision for termination of asylum, INA § 208(c)(2), states:
Asylum… does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that… the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality.
It’s clear from this provision that the AG does not have to terminate asylum if the alien returns to her country (“Asylum… may be terminated”). Also, return to the country in-and-of itself may not be a sufficient basis for termination if the alien has not “voluntarily availed himself or herself of the protection of the [home] country.”
So in the above examples, there is room to argue that the clients have not voluntarily availed themselves of the protection of the home country. In the case of an alien who returns home to help a relative, perhaps he entered the country surreptitiously and remained in hiding during his time there. Evidence that the alien’s journey home was clandestine might help to counter an attempt to terminate asylum (asylum may be terminated if DHS shows by a “preponderance of the evidence” that the alien voluntarily availed himself of the protection his country – 8 C.F.R. 208.24).
In the example of a political activist who returns to her country to engage in political activity, she can argue that she did not avail herself of the protection of her country. On the contrary, she challenged her country’s government and put herself at risk to do so.
In the case of an alien who returns to his country to work for (or serve in) the U.S. military, that alien has not availed himself of the protection of his country. Rather, he is being protected by the U.S. military.
In all these examples, the alien is able to argue that he or she has not “voluntarily availed himself or herself of the protection of the alien’s country of nationality.” The alien in each case could also appeal to the Attorney General not to terminate asylum as a matter of discretion. In these cases, the aliens have returned to their country for good reasons. In some cases, the reason for returning might be in the interest of the U.S. government. Under such circumstances, the AG might agree not to terminate asylum as a matter of discretion.
Although asylees who return home can sometimes make decent arguments against termination, they put themselves at risk of losing their status. For this reason, any asylee considering a return trip should think carefully about the potential consequences. At a minimum, the alien should gather as much evidence as possible to show that she has not voluntarily availed herself of the protection of her country. She would also do well to consult an attorney.