Nunc Pro Tunc Asylum Procedures

While not used very frequently, the Nunc Pro Tunc Asylum filing procedure is a huge benefit for derivative dependent aliens who are unable to adjust status because they have lost their relationship with their principal, usually inadvertently or through no fault of their own.

“Nunc Pro Tunc“ is just a Latin phrase that means “now for then.” In a real-world context, it applies to acts that are allowed to be done after the time for doing them under the law has already passed or expired. And thus, when an action is taken nunc pro tunc, that action will be given retroactive legal effect, as if it had actually been performed on a specific earlier date.

In the asylum context, the Nunc Pro Tunc procedure allows a derivative dependent the ability to file an I-589 asylum application (after losing derivative status for one of the reasons set forth below) in order to obtain a grant of asylum in their own right, and thus adjust status and obtain permanent residence.

Examples of the application of the Nunc Pro Tunc asylum procedure include situations where:

• The principal applicant dies;
• The derivative dependent child marries;
• The derivative dependent spouse divorces the principal applicant;
• The derivative dependent step-child asylees parent divorces the principal applicant;
• The derivative dependent withdraws his or her asylum claim; and
• The derivative dependent child turns 21 years old and is NOT protected by the Child Status Protection Act. Note that this is generally only seen in cases where the asylum or I-730 application was filed before August 6, 2002 (the effective date of the CSPA) and the derivative dependent turned 21 before this date. As of August 6, 2002, any derivative asylee child who had an I-730, I-485, or I-589 pending on or after that date had his or her age frozen as of the date on which the application was filed.

In almost all of these cases, the derivative dependent has no choice in whether they can retain their derivative status and it is lost through an event which they may not have had any control over (such as the death of the principal, divorce, parent naturalizes, etc.). In cases where the derivative dependent loses derivative status because they got married, even though this was clearly a voluntary act, in almost all cases, the dependent is completely unaware of the legal effect that the marriage would have on their derivative asylee status. It is in all of these situations that the Nunc Pro Tunc asylum procedure can save the day for a derivative dependent and allow them to realize the benefits of their derivative asylum status. It is also important to note that the Nunc Pro Tunc procedure is the same for all applicants who qualify under these rules, regardless of how they lost derivative asylee status and regardless of whether they were granted asylum status by the USCIS Asylum Office, a U.S. Immigration Judge, or entered the U.S. after approval of an I-730 Petition.

The Nunc Pro Tunc asylum procedure is unique in Immigration Law since the applicant is filing an application that is actually based upon the asylum claims of another individual – the principal asylee through whom they originally obtained their asylee status. In many cases, the derivative dependent has very little personal knowledge of the details of the principal’s asylum claim and may have even been a young child when all of the events giving rise to the asylum claim occurred. The result is that the derivative dependent may not have “a well-founded fear” that they will be persecuted if they return to their native country, which is normally a requirement for asylum claims. Because of this reality, a Nunc Pro Tunc asylum application is reviewed and decided under different standards and the applicant is not necessarily expected to prove a well-founded fear of persecution.

It should be noted, however, that the interviewing officer still has the discretion to inquire into whether the applicant has a well-founded fear and ask questions about what the asylum application is based upon. This discretionary review will usually happen where:

• The derivative dependent is a national of a country that is different from the nationality of the principal applicant and the derivative dependent does not appear to have a fear of persecution in their country of nationality;
• The derivative dependent never even lived with the principal applicant; or
• The derivative dependent’s spouse or parent appears to have obtained asylum through fraud, but that asylum status has not been terminated.

As such, an applicant may be expected to have knowledge of the underlying asylum claim, the current and past country conditions, and also be able to articulate some basis for having a well-founded fear of returning to his/her native country. In many cases, the circumstances and country conditions that caused the principal to flee their homeland still exist. In other cases, due to regime changes and other political events, the situation has completely changed and the conditions may no longer even support the original claims of persecution. Every case will depend upon the unique facts and factors of the primary applicant and the conditions in his or her native country.

Example Case. Winston was granted asylum by the Immigration Judge. Then he filed an I-730 petition to sponsor his minor son, George, who was still living in Winston’s native country. George came to the U.S. shortly after but waited several years before he filed for adjustment of status to get his green card. During this time, Winston applied for and was Naturalized as a U.S. Citizen. When George finally filed his application for adjustment of status, he was shocked to find out that his application was denied on the ground that he lost his eligibility to apply under his father once his father became a naturalized U.S. citizen. Luckily for George, he did not lose his asylum status, he only lost his ability to apply as a derivative asylee under his father. After speaking with an experienced U.S. Immigration Lawyer, George learned that he could file for Nunc Pro Tunc asylum, get a grant of asylum in his own right, and then file for adjustment of status. It was a long procedure and involved more paperwork, but at least he was able to retain the benefits of his underlying asylee status, stay in the U.S., and ultimately get his green card.

Bars to Nunc Pro Tunc Eligibility. Even if an asylee is eligible for Nunc Pro Tunc processing based on one of the above conditions, it should also be noted that the Nunc Pro Tunc application may be denied if the asylee applicant has a criminal record or they are subject to a mandatory bar (automatic denial) to asylum applies, which include:

• Persecution of others on account of one of the protected characteristics in the refugee definition
• Conviction of a particularly serious crime, including an aggravated felony
• Commission of a serious nonpolitical crime outside the United States
• Reasonable grounds exist for regarding the applicant a danger to the security of the U.S.
• Participation in terrorist activities or status as a representative of certain terrorist organizations
• Firm resettlement in a third country

LEGAL ANALYSIS: Why does the law provide for Nunc Pro Tunc Processing? In order for a derivative dependent to obtain permanent resident (green card) status from a principal applicant who was granted asylum, a derivative asylee (the term assigned to the dependent once the principal’s application is granted) must continue to meet the definition of a “spouse” or “child” when USCIS makes a decision on the application for permanent residence. Legally speaking, for eligibility to adjust status under INA 209, an asylee must, “continue to be a refugee within the meaning of section 101(a)(42)(A) or a spouse or child of such a refugee.” If one of the above events occurs (ie. principal naturalizes, spouse divorces, child remarries, etc.), then the derivative asylee no longer meets the legal definition of spouse or child under the law and will no longer be considered a derivative asylee. But this does not mean that the spouse or child loses asylee status. This can only happen if USCIS or EOIR (the Immigration Court or BIA) formally terminates asylum status. Under these circumstances, the derivative asylee will indefinitely remain as an asylee (entitled to live and work in the US and obtain a travel document). The Nunc Pro Tunc procedure was created in order to provide an avenue for these derivative asylees to adjust status and obtain permanent residence in the U.S.

The nunc pro tunc asylum procedure can be very confusing and complicated if you do not understand the legal requirements of filing the application or the filing procedures. What makes the nunc pro tunc process even more mysterious to some applicants is that the USCIS offices and Service Centers have a policy of not helping or facilitating applicants with their nunc pro tunc applications, and they probably will not answer any questions about the nunc pro tunc asylum process. It can be time-consuming and expensive to try and figure this out on your own and to pay non-refundable filing fees for applications (such as the I-485 application) only to find out that you are not eligible to adjust and must first apply for nunc pro tunc asylum. This is where I can help to guide you through the nunc pro tunc asylum processing maze; whether it’s by answering your questions, helping you fill out applications, or representing you at your nunc pro tunc asylum interview.

Although I am a South Florida Immigration Lawyer licensed to practice only in the State of Florida, our regulations allow me to represent clients in Immigration matters in all 50 states. For an additional fee, I can and will travel in order to go with you to your nunc pro tunc asylum interview. My fees are reasonable and I am willing to work within your budget and consider all reasonable proposals for payment plans.

If you have questions about whether you are eligible to file a Nunc Pro Tunc Asylum application or if you need assistance with your application, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.