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  • Article: Nunc Pro Tunc Asylum May Help When All Odds Are Against You By Alena Shautsova

    Nunc Pro Tunc Asylum May Help When All Odds Are Against You

    by


    Nunc Pro Tunc is a Latin phrase and a concept that stands for “now for then” and can be particularly “useful” in certain Immigration situations. It works almost like a miracle in some desperate immigration situations: it lifts the almighty “permanent bar” if a nunc pro tunc permission to reapply for admission is granted, and it “restores” the lost by a dependent ability to adjust status.

    When a member of a family files for asylum, his spouse and children who on the date of the acceptance of the application are under 21 years of age may qualify for asylum as well, if the principal’s asylum application is granted. These dependents do need to file separate claims, and they just wait for the principal to acquire his/her status. Once the principal wins his/her asylum case, and acquires an asylee status, the dependents acquire the status as well. It might be, of course, that dependents need to come to the United States first, if they had to wait overseas for the principal’s application to be granted, but the point here is that it is the principal and his/her status who “covers” his/her dependents with the acquired status.

    Now, the law states that an asylee or a refugee, after holding the status for a year (and complying with other requirements) may adjust his/her status to one of a permanent resident. Each family member has to file a separate application for adjustment of status. Here comes the tricky part. Many applicants and dependents, especially those who act without an attorney are not aware that for a successful adjustment they still have to qualify as “dependents” of the main asylum winner on the date when their application for adjustment is being adjudicated, otherwise, their application will be denied. To wit,

    section 209(b) of the Act, as amended, states in pertinent part:

    The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who-...(3) continues to be a refugee within the meaning of section 101 (a)(42)(A) or a spouse or child of such a refugee,...

    8 C.F.R. $ 209.2(a)(1) states in pertinent part, ...The status of any alien who has been granted asylum in the United States may be adjusted by the director to that of an alien lawfully admitted for permanent residence, provided the alien:... (iii) Continues to be a refugee within the meaning of section l0l(a)(a2) of the Act, or is the spouse or child of a refugee...

    Now, imagine, a son D comes to your office and states that his application for adjustment of status was denied. He is so upset, he does not understand what happened. His I-485 application has been pending for several years, all his family members are citizens already, and only he is “stuck” in asylum status… You talk to the client and find out that his father, the main asylum applicant became a citizen prior to D adjusting his status… You also have another client X calling you, who states that he won his asylum case a couple of years ago, and now all his family is filing for adjustment of status based on their derivative status, and his daughter (20 years old) is getting married… Will his daughter be able to receive her permanent residency after marriage? Did USCIS make a mistake in D’s case?

    What happened here is that “intervening” factors such as naturalizations, death, marriage, divorce, etc. destroy the qualifying relationship that is necessary for the dependents to receive their permanent resident status. Perhaps, D’s father rushed to become a U.S. citizen, and X daughter should wait for her marriage. Once the qualifying relationship is destroyed, dependent gets “stuck.” The only way for him/her to remedy the situation would be to file for asylum on his/her own, but as one can imagine, the one year deadline would be long missed by then.

    That is where the magic “nunc pro tunc” comes in that allows such misfortunate dependents to file their asylum cases with local asylum offices and restore their ability to adjust status. It is basically a technical solution to a legal problem. The nunc pro tunc applicant does not need to independently qualify for asylum. It does not mean that an asylum office will “rubber stamp” the application, as the now new applicant should not be ineligible for asylum due to criminal convictions or national security grounds, in addition, country of origin and residence with the main principal may be an issue as well. However, the nunc pro tunc solution is a viable option in many situations, and as such should not be overlooked by the practitioners.

    About the Author:

    Alena Shautsova is a New York Immigration attorney focusing her practice on Immigration waivers, Asylum , Family Immigration and Removal defense. She graduated from Case Western Reserve University School of Law (Cleveland, OH) in 2006 with an LL.M. degree. She received her jurisprudence degree from a law faculty of the Belarusian State University in Mink, Belarus. Ms. Shautsova is a member of the AILA, ABA and NYSBA. She is a member of the New York State Bar Association Committee on Immigration Representation , New York State Bar Association Committee on Standards of Attorney Conduct, American Bar Association Committee of Young Advocates of the Litigation Section. She is a current delegate to the ABA House of Delegates from the Young Lawyers Section of the New York State Bar Association. Ms. Shautsova can be reached through http://www.shautsova.com.

    Reprinted with permission.


    About The Author

    Alena Shautsova Alena Shautsova is a New York Immigration attorney focusing her practice on Immigration waivers, Asylum , Family Immigration and Removal defense. She graduated from Case Western Reserve University School of Law (Cleveland, OH) in 2006 with an LL.M. degree. She received her jurisprudence degree from a law faculty of the Belarusian State University in Mink, Belarus. Ms. Shautsova is a member of the AILA, ABA and NYSBA. She is a member of the New York State Bar Association Committee on Immigration Representation , New York State Bar Association Committee on Standards of Attorney Conduct, American Bar Association Committee of Young Advocates of the Litigation Section. She is a current delegate to the ABA House of Delegates from the Young Lawyers Section of the New York State Bar Association. Ms. Shautsova can be reached through http://www.shautsova.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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