Chapter Cuban and Haitian Entrants Definition In the State of

Chapter 3: Cuban and Haitian Entrants Definition In the State of Florida and some other states, Cuban and Haitian nationals who are neither refugees nor asylees may be eligible for ORR-funded refugee assistance programs under Part 401 of Title 45 of the Code of Federal Regulations (45 CFR 401). Eligible individuals, as defined below, include parolees, asylum applicants, and others who have been placed into removal proceedings. Cuban and Haitian entrants eligible for refugee resettlement programs are defined in Title V (Fascell-Stone Amendment) of the Refugee Education Assistance Act of 1980: (1) Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided; and Any other national of Cuba or Haiti – (A) who --(i) was paroled into the United States and has not acquired any other status under the Immigration and Nationality Act; (ii) is the subject of exclusion or deportation proceedings under the Immigration and Nationality Act; or (iii) has an application for asylum pending with the Immigration and Naturalization Service; and (B) with respect to whom a final, nonappealable, and legally enforceable order of deportation or exclusion has not been entered. (2) What is a Cuban/Haitian "entrant?" A Cuban/Haitian entrant is . . . a Cuban or Haitian and ♦ ♦ ♦ a parolee. an asylum applicant.* in removal proceedings.* *Until a final, nonappealable, legally enforceable order of removal (deportation) is issued. According to 63 FR 31895, dated June 11, 1998, INS determined that Cubans or Haitians paroled into the United States under INA 212(d)(5) since October 19, 1980, are to be considered to have been paroled in the immigration status referred to as "entrants" in the above section 501(e)(1) of the Refugee Education Assistance Act of 1980, P.L. 96–422, as amended, rather than section 502(e)(2), thereby ensuring the eligibility of these individuals for refugee assistance programs even if they later acquire some other immigration status. These clients retain eligibility for refugee services even if the validity period of their parole status expires. Note: DHS sometimes releases individuals with other types of documentation that do not explicitly state that the applicant has been paroled under INA 212(d)(5). In these cases, providers will need to clarify eligibility. Explanation of Status/DHS Codes As defined earlier, certain Cuban or Haitian nationals in the United States with immigration statuses enumerated under Title V (Fascell-Stone Amendment) of the Refugee Education Assistance Act of 1980 are known as "Cuban/Haitian Entrants" and are eligible for refugee program benefits. If the spouse or child of a Cuban-Haitian entrant is a national or citizen of a country other than Cuba or Haiti, the spouse or child by definition is not a Cuban-Haitian entrant. These non-Cuban or non-Haitian family members are ineligible for ORR-funded assistance unless they have another status that qualifies them for refugee program benefits. DHS determines the citizenship or nationality by the documentation presented at the time of application for entry into the United States. Any potential claim to Cuban or Haitian nationality must be documented by DHS in order to lead to eligibility for ORR benefits and services. See Exhibit 3-2—ORR Letter #07-14 beginning on page 3-15. Subject: Cuban Parolee and NonCuban Spouse or Non-Cuban Child Not Eligible for ORR Benefits and Services. Cuban or Haitian clients are the only clients eligible for refugee program assistance and services while they are in removal proceedings, paroled or awaiting an asylum determination. Since only Cubans or Haitians are eligible, these individuals must show documentation that confirms their nationality as well as their immigration status. Note: Some Cuban/Haitian entrants lose their eligibility when they are ordered deported with a final, nonappealable, legally enforceable order of removal. Cuban or Haitian clients who have been paroled remain eligible for services even if a final order of removal or deportation is issued. In order to verify if a final order has been issued or if a client is still involved in immigration proceedings, providers may request additional documentation showing that proceedings are ongoing. Information may also be available by calling the Executive Office of Immigration Review (EOIR) case status line (800-898-7180). If no documentation is available, providers with access to SAVE may attempt to verify the applicant’s status through the USCIS SAVE system. Agencies that do not have access to the SAVE system may submit Form G-845 to the local USCIS office. ORR guidance states that, if an applicant appears eligible from his documentation, agencies should provide benefits while attempting to determine if there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion. If after checking for a final order, a provider is uncertain if the client remains eligible, contact the Office of Refugee Services (ORS) before terminating services and ask for further guidance on whether the final order meets all of the conditions. ORR has suggested that providers request clients to complete a sworn declaration that the individual has an immigration status that makes him or her eligible for ORR programs (see Exhibit 5-1, page 5-7). If such a declaration is required, agencies should ensure that they request the statement in a way that they do not discriminate against particular groups of clients on the basis of nationality, national origin, or other grounds prohibited under civil rights legislation. 3-2 Refugee Program Eligibility Guide for Service Providers, 02/08 For a brief summary of the DHS codes and annotations detailed below, refer to the chart on pages 3.8-9. Further explanations of the various subgroups of Cuban/Haitian entrants follow in alphabetical order. Asylum Applicants Cubans or Haitians who apply for asylum in the United States are considered Cuban/Haitian entrants while their applications for asylum are pending and therefore are eligible for refugee benefits. These applicants may have arrived in the United States legally, be paroled or be without other status. Note: Asylum applicants of nationalities other than Cuban or Haitian are not eligible for refugee program benefits. Cubans or Haitians whose applications for asylum are approved are not allowed a second period of eligibility for refugee benefits as asylees but may continue to receive benefits for the time remaining of their original eligibility period. Acceptable evidence includes an I-94 arrival/departure card stamped with "Form I-589 filed" or accompanied by the official USCIS receipt of Form I-589 (Application for Asylum). Applicants may use a document stamped by an immigration judge showing that an asylum application has been filed as evidence of eligibility for benefits as a Cuban/Haitian entrant. Cuban Adjustment Act (CAA) Any Cuban who is admitted or paroled into the United States for more than a year (a year and a day) may apply for adjustment to legal permanent resident under the Cuban Adjustment Act of 1966. Not all Cubans who adjust status under the Cuban Adjustment Act previously held status as "Cuban/Haitian Entrants." Cuban entrants who do adjust status under the Cuban Adjustment Act, however, may continue to be eligible for refugee services after adjustment. Note: The adjustment code CU6 on an I-551 (Permanent Resident Card) is not sufficient evidence of eligibility for refugee programs because it is also used for a person who never had status as a Cuban/Haitian entrant. Persons with the CU7 code are ineligible because the code is used only for non-Cuban spouses or children who adjust under the Cuban Adjustment Act. See also Exhibit 3-2, ORR State Letter #07-14. The CU6 code may be used as evidence of Cuban nationality. While the date of residence on the I-551 may be the date an individual is paroled into the United States, providers may not assume this is the date of entry for eligibility purposes as some individuals may receive parole after they arrive in the United States without status. Verify if the individual arrived in the United States with parole status or applied for parole later (see “Parole” section below). If applicants have surrendered their I-94s to USCIS on adjustment to permanent resident status, providers may be able to establish eligibility from documentation of earlier refugee program eligibility (such as an expired EAD or old passport), or by submission of Form G-639 (Freedom of Information/Privacy Act Request) to USCIS. 02/08, Refugee Program Eligibility Guide for Service Providers 3-3 Cuban/Haitian Entrant Certain Cuban nationals who entered the United States illegally between April 15, 1980, and October 10, 1980, and Haitian nationals who entered the United States illegally before January 1, 1981, were designated as Cuban/Haitian entrants. Under a provision of the Immigration Reform and Control Act of 1986, these entrants were allowed to adjust to permanent resident status if they had resided in the United States since before January 1, 1982, and were known by that date to the INS. Documentation of this status is an I-551 (Permanent Resident Card) with a code of CH6. These Cuban/Haitian entrants would not now be eligible for time-limited refugee services, but may continue to be eligible for other social services. The term "Cuban/Haitian entrant" is also used generally, however, to describe Cuban and Haitian nationals who hold one of the immigration statuses defined in Title V of the Refugee Education Assistance Act of 1980 (Fascell-Stone Amendment). Individuals defined as Cuban/Haitian entrants under this legislation are eligible for refugee services if within the eligibility period, but do not receive the code CH6 when they adjust to permanent resident status. Entered Without Inspection (EWI) The term “EWI” is an informal description and does not refer to a status; providers should not see recent arrivals with this notation on I-94s although the term is sometimes entered as a “class of admission” on the SAVE system. Certain Cuban or Haitian applicants who present an I94 arrival/departure card with the inscription "EWI" or "Entered Without Inspection" entered the United States without permission and, according to DHS, were paroled or were placed in removal proceedings. Since Cuban or Haitian nationals paroled or in removal proceedings are included in the Fascell-Stone definition of a Cuban/Haitian entrant eligible for refugee program benefits (45 CFR 401.2(b)(1)(ii)), these individuals are eligible for services in the State of Florida's Cuban/Haitian Program. Acceptable documentation includes an I-94 arrival/departure card annotated "EWI” or an I94 with a parole stamp indicating status under Section 212(d)(5) of the INA or an Employment Authorization Document (EAD) with a code representing parole: I-766 with A04 or C11 code or the I-688B showing 274a.12(a)(4) or 274a.12(c)(11). Note: If you see unusual notations or are unsure of what a particular notation such as “EWI” means, contact your contract manager in ORS for clarification. DHS officials on occasion use notations that are not included in this guide. Haitian Refugee Immigration Fairness Act (HRIFA) Haitian nationals who adjust status under the Haitian Refugee Immigration Fairness Act (HRIFA) are eligible for refugee program benefits only if they previously held an eligible immigration status as an asylum applicant or a parolee and if they are within the eligibility period. However, because of the residence requirements under HRIFA, most of these individuals will have already been in the United States for more than five years and be eligible only for certain discretionary services funded by ORR. An I-551 (Permanent Resident Card) with a code of HA6 or HB6 is acceptable documentation that the applicant previously held status as a Cuban/Haitian entrant, but the applicant must show evidence of date of status. 3-4 Refugee Program Eligibility Guide for Service Providers, 02/08 Note: Other HRIFA codes are not sufficient evidence of refugee program eligibility in themselves, although Haitian applicants who adjust to permanent resident under HRIFA will often be eligible because they have been paroled. Nicaraguan Adjustment and Central American Relief Act (NACARA) Enacted as Title II of the District of Columbia Appropriations Act of 1998, P.L. 105-100, NACARA allows certain Cuban or Nicaraguan nationals who are in the United States to adjust status to that of lawful permanent resident. Cubans adjusted under this legislation are eligible for refugee program benefits if they previously held an eligible status, such as parolee or asylum applicant, and if they are within the eligibility period. Note: Nicaraguan nationals applying under NACARA are not eligible for refugee program benefits. In order to establish eligibility for refugee program services, Cubans with an I-551 showing an NC6 code must present DHS documentation that shows that they held an earlier status as Cuban entrants. The I-551 (Permanent Resident Card) with a code of NC6 establishes only identity and nationality for eligibility purposes. Parolee Parole is a temporary status granted by DHS pursuant to the Attorney General's authority under section 212(d)(5) of the Immigration and Nationality Act (INA). Individuals may be granted parole for humanitarian reasons or for emergent or compelling reasons of "significant public benefit." In some cases, parole is authorized prior to the individual's arrival in the United States; parole may also be granted at the port of entry, after arrival, or upon release from DHS detention. Cuban or Haitian nationals paroled into the United States are eligible for refugee program benefits as Cuban/Haitian entrants. Providers should be aware that some individuals granted parole may also be placed in removal proceedings. According to ORR guidance in State Letter #01-22, once meeting the definition of section 501(e)(1), paroled Cubans or Haitians “do not lose the status by attaining another immigration status or by falling out of the immigration status that initially made them” eligible. Even a removal order will not affect eligibility, although ORR would not consider a section 501(e)(1) "Cuban and Haitian entrant" to retain that status after actual removal from the United States. See Exhibit 3-1—ORR Letter #01-22 beginning on page 3-11. Subject: Clarification of Acceptable Documentation for Category One Cuban and Haitian Entrants. Some 12,000 to 16,000 Cuban nationals annually are granted a public interest parole for travel to the United States under the U.S.-Cuban Migration Accords. These individuals are known as "Cuban lottery parolees" and are eligible for refugee program services. Note: Parolees of nationalities other than Cuban and Haitian are not eligible for refugee resettlement assistance under current regulations. Acceptable documentation for refugee program eligibility includes an I-94 showing a parole stamp indicating status under Section 212(d)(5) of the INA, Cuban or Haitian nationality, and the date of parole. Lottery parolees are documented with a parole stamp in a Cuban passport and an I-94 showing their date of entry. Cuban or Haitian parolees who adjust status under 02/08, Refugee Program Eligibility Guide for Service Providers 3-5 applicable legislation would continue to be eligible for refugee services based on the date the individual initially became eligible for benefits (“entry” date). These parolees retain eligibility for refugee services even if the parole status has expired based on ORR’s interpretation above. Release from Indefinite Detention Some persons released from indefinite detention may have been eligible for refugee program services as Cuban-Haitian entrants. These individuals may still be eligible for certain discretionary services funded by ORR. When an applicant indicates he was previously held in “indefinite detention,” does not have documentation of his original status and may have a final order of removal issued against him, providers should not conduct a SAVE query (See ORR State Letter #05-03 on pages 6-43 for further explanation.) Instead, providers should gather as much information as possible from the applicant, and: (a) call or email Refugee Services to inform ORR about the need for an eligibility determination for an indefinite detainee, (b) send a fax with the information that was collected from the applicant to Refugee Services, including contact information for the individual that is handling the case at the benefit-granting agency, and (c) wait to be contacted by ORR via facsimile (a copy of which should be maintained in the applicant’s file) regarding the applicant’s status, entry date and eligibility. Note: The SAVE system will not be able to provide the needed eligibility information, such as status or entry date, through primary verification. And, while secondary verification may be able to provide some of the needed information, it most likely will not have all of the needed information, and the information will not arrive timely. Release on Recognizance (ROR) This term has been used to refer to individuals who have entered the United States illegally and been arrested or detained prior to release pending a removal hearing. Since they are in removal proceedings, Cuban or Haitian nationals released on their own recognizance are considered Cuban/Haitian entrants eligible for refugee services under the State of Florida's Cuban/Haitian Program. These applicants should be able to provide a "Notice to Appear," as evidence of date of entry and nationality, in addition to the "Order of Release on Recognizance." Also, see "Removal Proceedings" for other possible documents for determining eligibility. Documents for program eligibility should indicate identity, immigration status, date of status and Cuban or Haitian nationality. Removal (also Deportation or Exclusion) Proceedings Cuban and Haitian nationals who are in removal proceedings and have not been issued a final, nonappealable, and legally enforceable order of removal (deportation or exclusion) are considered Cuban/Haitian entrants eligible for refugee program services. In order to determine eligibility, each potential client must provide: ♦ ♦ ♦ ♦ 3-6 Evidence of identity (such as “Order of Release on Recognizance") Evidence of immigration status and alien number Date of entry into the United States or the date of status Evidence of nationality (as Cuban or Haitian) Refugee Program Eligibility Guide for Service Providers, 02/08 While individuals released by DHS will normally be given an “Order to Show Cause” or "Order of Release on Recognizance" or a “Notice to Appear” with their name and address, alien number, and the notice of a deportation hearing to be scheduled, they may have a mix of the documents listed in the box below. These documents do not confirm eligibility, but may indicate the applicant would have other DHS documents with information required for the eligibility determination. 1. 2. 3. 4. 5. “Record of Deportable Alien” (like the flimsy I-94, sometimes marked “Deportation” or “Under Docket Control”) “Notification of Rights” (in Spanish or Creole, informing of rights, including right to counsel) “Warrant for Arrest” (indicating detention by DHS) “Certificate of Translation” (evidence that documents and rights were translated into Spanish or Creole) A change of address form to notify DHS–Office of Immigration Judge Relatively few clients are in removal proceedings, but the documentation is the most difficult to evaluate for eligibility determination. ORR emphasizes that DHS documents shown as evidence of Cuban/Haitian entrant status indicate only that proceedings have been initiated and do not confirm current status unless recently dated. Some persons subject to the removal process are granted parole, and although ordered to appear for hearings, will also be able to show an I-94 arrival/departure card with an INA 212(d)(5) stamp. Providers should check for evidence that the removal proceedings are ongoing, either because the applicant shows documents of recent date or with a hearing date in the future or by checking the EOIR case status line at 800-898-7180. Providers may also access SAVE or submit Form G-845 (Document Verification Request) to the local DHS office if other information is insufficient. Note: If after checking for a final order, a provider is uncertain if the client remains eligible, contact the Refugee Services (RS) Office before terminating services and ask for further guidance in determining if the final order meets all of the necessary conditions. Special Immigrant Juvenile Minors from other countries who are unaccompanied or placed by court order in long-term foster care because of abuse, neglect, or abandonment may be eligible to petition USCIS as a “special immigrant” to adjust their status to permanent resident if the court has determined that the child should not be returned to his country or family members. According to USCIS guidance, an individual classified as SIJ is considered to be paroled in order to adjust status. SIJ’s who are Cuban or Haitian should therefore be considered to have met the definition of a Cuban-Haitian entrant prior to adjustment. Please contact Refugee Services if a client with SIJ status applies for services while still a minor. Withholding of Deportation Cubans or Haitians granted withholding of deportation (removal) under Section 243(h) or 241(b) of the INA may be eligible for refugee program services as Cuban/Haitian entrants. Their eligibility period begins with the date they were first documented in removal or asylum proceedings, or granted parole, not with the date that their withholding of deportation is granted. 06/05, Refugee Program Eligibility Guide for Service Providers 3-7 Immigration Status Codes for Cuban/Haitian Entrants CODE AO AS STATUS Asylum applicant without work authorization Asylum applicant with work authorization (c)(8) I have filed an application for asylum in the United States and the application is pending. (c)(10) I have filed an application for suspension of deportation and the application is pending. (c)(11) I have been paroled into the United States for emergent reasons or for reasons in the public interest. (c)(12) I am a deportable alien and I have been granted voluntary departure either prior to or after my hearing before the immigration judge. I have filed an application for asylum in the U.S. and my application is pending. I have filed an application for adjustment of status to lawful permanent resident status and the application is pending. NATIONALITY DOCUMENT (SAVE)3 C08 C10 C11 ONLY IF Cuban or Haitian1 I-766 C12 274a.12(c)(8) 274a.12(c)(09) ONLY IF Cuban or Haitian AND held eligible status prior to adjustment 274a.12(c)(11) 274a.12(c)(12) CC CH CH6 I have been paroled into the U.S. for emergent reasons or for reasons in the public interest. I am a deportable alien and I have been granted voluntary departure either prior to or after my hearing before an immigration judge. Mass migration, Cuban parolee Humanitarian parolee Cuban/Haitian entrant adjustment to LPR Cuban/Haitian parolee processed at Guantanamo or other public interest parolee Cuban adjusted under Cuban Adjustment Act I-688B ONLY IF Cuban or Haitian (Cuban) (Cuban or Haitian) (Cuban or Haitian) (Cuban or Haitian) (Cuban) ONLY IF held eligible status prior to adjustment Ineligible because nationality not Cuban ONLY IF Cuban or Haitian1 (SAVE)2 I-551 or Passport (SAVE)2 CP CU6 I-551 or Passport CU7 DE DT Spouse or child of CU6 Advance parolee Port of entry parole or parole by District Office (SAVE)2 3-8 Refugee Program Eligibility Guide for Service Providers, 10/03 CODE EF STATUS In expedited removal proceedings, awaiting credible fear interview In expedited removal proceedings, awaiting final decision for reason other than credible fear determination In expedited removal proceedings, awaiting credible fear interview In expedited removal proceedings, awaiting final decision for reason other than credible fear determination Entered without inspection, in removal proceedings Haitian asylum applicant adjusted to LPR under Haitian Refugee Immigration Fairness Act (HRIFA) Haitian parolee adjusted to LPR under HRIFA I have been admitted into the United States as a parolee. Cuban or Nicaraguan adjusted to LPR under Nicaraguan and Cuban Adjustment Act (NACARA) – Cubans eligible only if held eligible status prior to adjustment Released on Recognizance (in removal proceedings) NATIONALITY DOCUMENT EP ERF ONLY IF Cuban or Haitian1 (SAVE)2 ERP EWI ONLY IF Cuban or Haitian1 (Haitian) (Haitian) ONLY IF Cuban or Haitian Flimsy I-94 or(SAVE)2 HA6 HB6 INA 212(d)(5) I-551 I-94, Passport NC61 ONLY IF Cuban ONLY IF Cuban or Haitian1 I-551 (SAVE)2 ROR 1 Cuban-Haitian entrants other than parolees are eligible only until a final, nonappealable, legally enforceable deportation order has been issued. Contact Refugee Services for guidance. 2 Codes used in SAVE verification or appearing on various DHS documents. These codes are used for all nationalities, so providers must document Cuban or Haitian nationality as part of the eligibility determination. Note: When not shown, remember to document nationality and date of entry/status with other documentation. If subject to removal, check that proceedings are still ongoing. 10/06, Refugee Program Eligibility Guide for Service Providers 3-9 Exhibit 3-1 ORR State Letter #01-22 Clarification of Acceptable Documentation for Category One "Cuban and Haitian Entrants" Department of Health and Human Services Administration for Children and Families 370 L’Enfant Promenade, S.W. Washington, D.C. 20447 ORR State Letter #01-22 TO: Date: August 15, 2001 STATE REFUGEE COORDINATORS NATIONAL VOLUNTARY AGENCIES OTHER INTERESTED PARTIES Carmel Clay-Thompson, Acting Director Office of Refugee Resettlement FROM: SUBJECT: Clarification of Acceptable Documentation for Category One "Cuban and Haitian Entrants"2 This State Letter reviews the definition of Category One "Cuban and Haitian entrants" and clarifies the acceptable documentation these individuals may present when they apply for ORR-funded benefits and services. The change in the acceptable documentation affecting the greatest number of "Cuban and Haitian entrants" is that ORR now will accept an expired I-94 Arrival/Departure Card showing parole on or after April 21, 1980 as proof that a Cuban or Haitian is a Category One "Cuban and Haitian entrant." Definition "Cuban and Haitian entrants" are eligible for ORR-funded benefits and services, provided they meet other eligibility criteria, such as income.3 In determining whether someone is a "Cuban and Haitian entrant," ORR uses the definition in the Refugee Education Assistance Act of 1980 (the Act). The Act outlines four main categories of individuals who are considered "Cuban and Haitian entrants." This State Letter only concerns individuals in the first category (Category One "Cuban and Haitian entrants"). According to the Act, a Category One "Cuban and Haitian entrant" is: 2 Category One "Cuban and Haitian Entrants" reflect the immigration status of individuals qualifying under section 501(e)(1) of the Refugee Education Assistance Act of 1980, as amended. 3 Refugee Education Assistance Act of 1980, as amended, §501(a)(1), 8 U.S.C. §1522 note. 08/01, Refugee Program Eligibility Guide for Service Providers 3-11 Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba and Haiti, regardless of the status of the individual at the time assistance or services are provided. Refugee Education Assistance Act of 1980, as amended, §501(e)(1), 8 U.S.C. §1522 note (emphasis added). Under ORR's interpretation of this section of the Act, the following individuals are Category One "Cuban and Haitian entrants": Any alien who is a national of Cuba or Haiti and, regardless of the status of the alien at the time the alien is an applicant for benefits and services: (a) has been granted status as a Cuban/Haitian Entrant (Status Pending) on or after April 21, 1980; or (b) has been paroled into the United States on or after October 10, 1980, unless the alien was paroled into the United States in the custody of a Federal, State, or local law enforcement or prosecutorial authority, for purposes of criminal prosecution in the United States, or solely to testify as a witness in proceedings before a judicial, administrative, or legislative body in the United States.4 Noting the language "regardless of the status of the alien at the time the alien is an applicant for benefits and services," ORR does not consider an individual's current immigration status relevant in making an eligibility determination for Category One "Cuban and Haitian entrants." Category One "Cuban and Haitian entrants" must show only that they met the definition at some point. Once meeting the definition of Category One "Cuban and Haitian entrant" these individuals do not lose the status by attaining another immigration status or by falling out of the immigration status that initially made them Category One "Cuban and Haitian entrants." Even a removal order will not change the Category One "Cuban and Haitian entrant" status, although ORR would not consider a Category One "Cuban and Haitian entrant" to retain that status after actual removal from the United States. Documentation The following chart, which lists the acceptable documents for Category One "Cuban and Haitian entrants," was printed in State Letter #00-17.5 The chart remains current. However, this State Letter clarifies that the I-94 Arrival/Departure Card with a stamp showing parole into the U.S. on or after April 21, 1980 may be expired. In 4 5 8 C.F.R. §212.5(h)(2001). See Chart #4a in State Letter #00-17. 3-12 Refugee Program Eligibility Guide for Service Providers, 02/08 other words, if, on December 1, 2001, a Cuban national applies for benefits and presents an I-94 Arrival/Departure Card with a stamp showing parole into the U.S. on November 15, 2000 and the card expired on November 15, 2001, the individual remains a Category One "Cuban and Haitian entrant" and the benefit-granting agency may accept the I-94 as proof of that status. In addition, the other documents that show an individual is a Category One "Cuban and Haitian entrant" may be expired. As noted above, a Category One "Cuban and Haitian entrant's" current immigration status is irrelevant in making an eligibility determination for ORR-funded benefits. Therefore, it is irrelevant that the documents confirming Category One "Cuban and Haitian entrant" status are expired. Documents/Codes An I-94 Arrival/departure card with a stamp showing parole at any time as a "Cuban/Haitian Entrant (Status Pending)" CH6 adjustment code on the I-551 Comments I-94 may refer to §212(d)(5). I-94 may be expired. Even after a Cuban/Haitian Entrant (Status Pending) becomes a permanent resident, he/she technically retains the status Cuban/Haitian Entrant (Status Pending). I-551 may be expired. I-94 may refer to §212(d)(5). I-94 may be expired. Passport may be expired. An I-94 Arrival/Departure card with a stamp showing parole into the U.S. on or after April 21, 1980. A Cuban or Haitian passport with a §212(d)(5) stamp dated after October 10, 1980. This clarification of acceptable documentation does not apply to any of the other categories of "Cuban and Haitian entrants." The documentation charts in State Letter #00-17 referring to the other categories of "Cuban and Haitian entrants" remain the same.6 If you have questions about any of the information in this State Letter, please call Anna Marie Bena at (202) 260-5186. 6 See Charts #4b–4d in State Letter #00-17 for documentation for other categories of "Cuban and Haitian entrants." 08/01, Refugee Program Eligibility Guide for Service Providers 3-13 Exhibit 3-2 ORR State Letter #07-14 Cuban Parolee and Non-Cuban Spouse or Non-Cuban Child Department of Health and Human Services Administration for Children and Families 370 L’Enfant Promenade, S.W. Washington, D.C. 20447 ORR State Letter #07-14 TO: STATE REFUGEE COORDINATORS NATIONAL VOLUNTARY AGENCIES OTHER INTERESTED PARTIES Brent Orrell Acting Director Office of Refugee Resettlement Date: Oct. 19, 2007 FROM: SUBJECT: Cuban Parolee and non-Cuban Spouse or non-Cuban Child: Spouse and Child Not Eligible for ORR Benefits and Services In response to the U.S. Department of Homeland Security Cuban Medical Professional Program7, Cuban medical professionals and their spouses and children have begun arriving in the United States and some are applying for ORR benefits and services. Many of the spouses and children are non-Cuban, that is, are nationals or citizens of a country other than Cuba. These non-Cuban spouses and children do not meet the definition of a “Cuban and Haitian entrant” as defined in the Refugee Education Assistance Act of 1980 (REAA), Pub. L. No. 96-422, because they are not Cubans and, therefore, unless they have another status qualifying them for ORR assistance, they are not eligible for ORR benefits and services. Although the impetus for this State Letter is 7 On August 11, 2006 DHS announced a program that allows certain Cuban medical professionals located outside Cuba to apply for parole or asylum into the U.S. To qualify for parole under this program, applicants must have evidence of their Cuban nationality or citizenship, must be working as a medical professional in a third country under the direction of the Cuban government, and must be otherwise admissible to the U.S. The applicant must be identified by DHS as a medical professional, which is a doctor, physical therapist, lab technician, nurse, sports trainer or other in the medical field. Spouses and minor children of Cuban medical professionals may also qualify for a parole, whether they are physically present in a third county or if they stayed behind in Cuba. Spouses and children under 21 qualify regardless of citizenship, and are paroled into the U.S. as parolees of their country of nationality based on documentation presented at time of application and entry to the U.S. 08/01, Refugee Program Eligibility Guide for Service Providers 3-15 the rise in applications for ORR benefits and services from increasing arrivals of Cuban medical professionals and their non-Cuban spouses and non-Cuban children, the eligibility rules discussed here apply equally to the non-Cuban spouses and non-Cuban children of Cuban and Haitian entrants who are not medical professionals. Background The Cuban Adjustment Act (CAA) In some cases, a Cuban family paroled into the U.S. may include a spouse or child who was not born in Cuba, or who is a citizen of a country other than Cuba. The fact of the spouse’s or child’s birth outside Cuba, or citizenship in a country other than Cuba, has no disqualifying impact on the spouse or child’s status as a parolee and eligibility to adjust status to lawful permanent resident under the Cuban Adjustment Act (CAA), Pub. L. No. 89-732, after one year in the U.S. However, during the one year period prior to CAA adjustment, the non-Cuban parolee spouse or child is not eligible for ORR benefits and services. Even after one year and upon adjustment of status, the non-Cuban spouse or non-Cuban child remain ineligible for ORR benefits and services, unless he or she is somehow able to qualify for ORR assistance on other grounds. The CAA states that, “notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States for at least one year, may be adjusted by the [Secretary of Homeland Security or the] Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” The Immigration and Nationality Act (INA) defines "child" so that a person's son or daughter must be unmarried and not yet 21 years of age to qualify as that person's "child." Step-children, adopted children, and children born out of wedlock can qualify as "children" for purposes of CAA adjustment, if the claimed parent-child relationship meets the requirements specified in section 101(b)(1) of the INA. The CAA applies to the spouse and children of the alien regardless of their country of citizenship or place of birth, provided: · the relationship continues to exist until the dependent spouse or child adjusts status; · they are residing with the principal alien in the United States; · they make an application for adjustment of status under the CAA; · they are eligible to receive an immigrant visa; and · they are otherwise admissible to the United States for such permanent residence. The CAA states that "the provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and 3-16 Refugee Program Eligibility Guide for Service Providers, 02/08 place of birth, who are residing with such alien in the United States." Regardless of the country in which a child of Cuban citizen parolee(s) or Cuban national parolee is born, such a child who meets the INA definition of “child” will be eligible to adjust his or her status under the CAA to that of Lawful Permanent Resident when the Cuban parent(s) apply for adjustment. Cuban and Haitian Entrants and Eligibility Requirements for ORR Benefits and Services Employing the definition in the REAA, ORR defines a Cuban and Haitian entrant as: (a) Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided; and (b) Any other national of Cuba or Haiti (1) Who: (i) Was paroled into the United States and has not acquired any other status under the Immigration and Nationality Act; (ii) Is the subject of exclusion or deportation proceedings under the Immigration and Nationality Act; or (iii) Has an application for asylum pending with the Immigration and Naturalization Service; and (2) With respect to whom a final, nonappealable, and legally enforceable order of deportation or exclusion has not been entered. 45 CFR § 401.2 ORR State Letter # 00-17 “Status and Documentation Requirements for the Refugee Resettlement Program” dated September 14, 2000, describes the immigration statuses that qualify an individual to be eligible for Refugee Resettlement Program Benefits, and identifies the immigration documentation that an applicant for ORR assistance or benefits must present to prove the applicant holds one of those statuses. This ORR State letter does not modify ORR State Letter #00-17. The following is found in ORR State Letter # 00-17: Individuals with the following statuses are eligible for Refugee Resettlement Program benefits (45 CFR §400.43(a)(1)-(6)): Individuals paroled as refugees or asylees under §212(d)(5) of the Immigration and Nationality Act (INA) Refugees admitted under §207 of the INA Asylees whose status was granted under §208 of the INA Cuban and Haitian entrants, in accordance with the requirements in 45 CFR §401.2 08/01, Refugee Program Eligibility Guide for Service Providers 3-17 Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided A national of Cuba or Haiti who was paroled into the United States and has not acquired any other status under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered A national of Cuba or Haiti who is the subject of removal, deportation or exclusion proceedings under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered A national of Cuba or Haiti who has an application for asylum pending with the INS and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered Nationality or Citizenship of Non-Cuban Spouse or Non-Cuban Child Determined by DHS Based on Immigration or Citizenship Documentation Presented DHS determines the citizenship or nationality of an alien by the documentation presented to DHS at time of application for entry to the U.S. A person claiming to be a national or citizen of Cuba would need to produce documentation issued by the Government of Cuba as evidence of this claim for DHS to treat the alien as Cuban and to enter the alien into DHS records as a national or citizen of Cuba. In the case of a national of Cuba accompanied by, for example, a spouse who presents to DHS a passport from Mexico or from Venezuela, DHS will consider the Cuban to be Cuban, the Mexican to be Mexican, and the Venezuelan to be Venezuelan. DHS will not consider an alien with a non-Cuban passport to be a Cuban national or citizen, solely because he or she is accompanied by a Cuban national spouse. Similarly, the nationality or citizenship of children is determined by DHS based on the documentation presented to DHS as evidence of the childrens’ nationality or citizenship. A child born in Mexico or Venezuela to parents one or both of whom are Cuban, may well carry a Mexican or Venezuelan passport, and be considered as Mexican or Venezuelan by DHS. For the children to be considered Cuban nationals, they would need to present documents to that effect issued by the Government of Cuba. Even if born outside of Cuba, the spouse or child of a Cuban parolee may have a claim to Cuban citizenship if qualifying criteria are met and stipulated Cuban procedures followed. For example, an individual who was born outside Cuba, but who had at least one Cuban citizen parent, may have acquired Cuban citizenship at birth under the jus sanguinis principle. If the spouse or child born outside of Cuba can present a Cuban passport, or other properly authenticated document from the Cuban government indicating that spouse or child is a Cuban citizen, then the person will be considered a Cuban for REAA purposes (even if the person is also a citizen of another country). Unless such a claim to Cuban citizenship or nationality has been successfully 3-18 Refugee Program Eligibility Guide for Service Providers, 02/08 pursued and documented by the spouse or child, they continue to be non-Cuban under the REAA. An unarticulated claim to Cuban citizenship confers no right, privilege, or status under the REAA on the spouse or child for purposes of their U.S. immigration status including at time of entry to the U.S., and does not lead to eligibility for ORR benefits and services. Cuban Adjustment Act Cannot Confer On Non-Cuban Spouse or Non-Cuban Child Status of Cuban Entrant Including Cuban Parolee Status It is true that the CAA permits the non-Cuban spouse or non-Cuban child of a Cuban parolee to adjust status to lawful permanent resident. During this first year in the U.S. in parole status, the non-Cuban spouse and non-Cuban child are running the one year clock along with the Cuban spouse for eligibility to apply for lawful permanent resident status under the CAA, which they can achieve if other requirements are met. But the CAA cannot confer on the non-Cuban spouse, or on the non-Cuban child, the status of Cuban parolee, even though all family members qualify to adjust under the CAA. During this initial year in the U.S., the immigration status of the non-Cuban spouse and non-Cuban child is the status originally conferred on them by DHS/Customs and Border Protection at time of the entry to the U.S. based on the documentation of citizenship or nationality then presented to DHS and basis of application for admission or parole to the U.S. The CAA cannot retroactively or prospectively confer on the nonCuban spouse or child the status of Cuban Haitian entrant. The evidence of lawful permanent resident status is the Form I-551 (“green card”), which may include a code indicating the section of law under which the bearer adjusted status, in this case CU7, family member of Cuban citizen or national adjusting under the CAA. Cuban and Haitian Entrant is not a Derivative Status Nowhere in the definition of Cuban and Haitian Entrant is there mention of spouse or child of the Cuban and Haitian Entrant, nor is there reference to any authority for devolution of “derivative” Cuban and Haitian Entrant status upon the non-Cuban spouse or non-Cuban child of a Cuban and Haitian Entrant. Only a citizen or national of Cuba could become a Cuban Entrant, including Cuban parolee. A person not a citizen or national of Cuba could never by definition be or become a Cuban Entrant or Cuban parolee. Non-Cuban Spouse or Non-Cuban Child of Cuban Parolee Are Ineligible for ORR Benefits and Services Because the non-Cuban spouse or non-Cuban child of a Cuban parolee is by definition not a Cuban parolee, he or she cannot be eligible for ORR funded benefits and services as Cuban parolees. This is not to exclude their potential ORR eligibility under some other ORR category, such as Asylee or Victim of a Severe Form of Trafficking in Persons, categories not discussed in this State Letter. 08/01, Refugee Program Eligibility Guide for Service Providers 3-19 As a general rule, ORR Service Providers should not look behind DHS nationality or citizenship determinations of applicants for ORR benefits and services. If the DHS documentation presented by an applicant for ORR services, or the Systematic Alien Verification for Entitlements (SAVE) system identifies the applicant as a national of a country other than Cuba, but the applicant for ORR services claims to be Cuban, he/she may be referred to the Cuban Interest Section in Washington, D.C. to seek documentation. (see appendix for contact information.) If the applicant claims that he or she should have been admitted or paroled by DHS into the U.S. as a Cuban, the applicant should be referred to DHS. Appendix Cuban Adjustment Act Pub. L. 89-732, Nov 2, 1966, 80 Stat. 1161, as amended by Pub. L. 94-571, Sec. 8, Oct. 20, 1976, 90 Stat. 2706; Pub. L. 96-212. Title II. Sec. 203 (i) Mar. 17, 1980, 94 Stat. 108 (8 U.S.C.A. § 1255 note): (provided) “That, notwithstanding the provisions of section 245 (c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1st, 1959 and has been physically present in the United States for at least one year, may be adjusted by the [Secretary of Homeland Security or the] Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the [Secretary of Homeland Security] shall create a record of the alien’s admission for permanent residence as for a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such an alien in the United States. Sec. 2. In the case of any alien described in section 1 of this Act who prior to the effective date thereof (Nov. 2, 1966) has been lawfully admitted into the United Sates for permanent residence, the [Secretary of Homeland Security] shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act (Nov 2, 1966), whichever date is later. Sec. 3. Section 13 of the Act entitled “An Act to amend the Immigration and Nationality Act, and for other purposes”, approved October 3, 1965 (Public Law 89-236) (amending subsecs. (b) and (c) of this section) is amended by adding at the end thereof the following new subsection: 3-20 Refugee Program Eligibility Guide for Service Providers, 02/08 “(c) Nothing contained in subsection (b) of this section (amending subsec. (c) of this section) shall be construed to affect the validity of any application for adjustment under section 245 (this section) filed with the Attorney General prior to December 1st, 1965, which would have been valid on that date; but as to all such applications the statutes or parts of statutes repealed or amended by this Act (Pub. L. 89-236) are, unless otherwise specifically provided therein, continued in force and effect”. Sec. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101 (a) and (b) of the Immigration and Nationality Act (Section 1101 (a), (b) of this title) shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the [Secretary of Homeland Security or the] Attorney General in the administration and enforcement of the Immigration and Nationality Act (this chapter) or any other law relating to immigration, nationality or naturalization. Sec. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 of this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in the case of any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976 (See Effective date of 1976 Amendment Note Above) Section 204 (b) (1) ( c) of Pub. L. 96-212 provided that the amendment of section 1 of Pub. L. 89- 732, set out above, by Pub. L. 96- 212 is effective immediately before Apr. 1, 1980. April 19, 1999 INS Policy on Cuban Adjustment Memorandum For All Regional Directors All District Directors All Chief Patrol Agents All Officers-In-Charge From: Doris Meissner Commissioner Subject: Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite having Arrived Other than a Designated Port-of-Entry This memorandum sets forth the Immigration and Naturalization Service (Service) policy concerning the effect of an alien's having arrived in the United States at a place other than a designated port of entry on the alien's eligibility for adjustment of status under the Cuban Adjustment Act of 1966 (CAA), 8 U.S.C. § 1255, note. This issue arises because many CAA applicants, in fact, arrive in the United States in an irregular manner. Section 1 of the CAA, however, requires that they must be "admissible." CAA § 1, 8 U.S.C. § 1255, note. If the inadmissibility ground that is based on an alien's having arrived at a place other than a port-of-entry, the Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), applies to CAA applicants, then many aliens 08/01, Refugee Program Eligibility Guide for Service Providers 3-21 who were formerly eligible for adjustment of status will no longer be eligible. The policy of the Service is that the inadmissibility ground that is based on an alien's having arrived at a place other than a port-of-entry does not apply to CAA applicants. All Service officers adjudicating CAA applications will do so in accordance with this policy. So long as the applicant meets all other CAA eligibility requirements, it is contrary to this policy to find the alien ineligible for CAA adjustment on the basis of the alien's having arrived in the United States at a place other than a designated port-ofentry. The Service will incorporate this policy into Service regulations as promptly as possible. The policy is, however, effective immediately. Service officers are not to await the publication of the intended rule before deciding CAA applications in accordance with this policy. This policy is based on the rationale of the decision in Matter of Mesa, 12 I&N Dec. 432 (INS 1967). In Matter of Mesa, the Service held that the admissibility requirement of § 1 of the CAA must be construed generously, in order to give full effect to the purpose of the CAA. The decision noted that Congress was fully aware that many, and perhaps most, Cuban nationals were dependent on some forms of public assistance. Yet the purpose of the CAA would have been defeated, if the public charge ground of inadmissibility applied to these applicants. The Service concluded, therefore, that the public charge ground does not apply to CAA applicants. Id. I have concluded that the same reasoning applies to inadmissibility for having arrived at a place other than a designated port-of-entry. Aliens arriving in this manner have been eligible for CAA adjustment for many years. Congress recently reaffirmed the availability of this adjustment provision, by enacting that the CAA is to continue in force until there is a democratic government in Cuba. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Division C. § 606(a), 110 Stat. 3009-546, 3009-695. Section 212(a)(6)(A)(i) of the INA was designed to complement the new legal doctrine, enacted as part of IIRAIRA, under which aliens who come into the United States without inspection are inadmissible, rather than deportable, aliens. Compare INA §§ 212(a)(6)(A)(i) and 235(a)(1), 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1225(a)(1) with 8 U.S.C. § 1241(a)(1)(B)(1994). Nothing in the legislative history of these changes suggests that Congress also intended to make aliens who arrive in the United States away from ports-of-entry ineligible for CAA adjustment. This policy does not relieve the applicant of the obligation to meet all other eligibility requirements. In particular, CAA adjustment is available only to applicants who have been "inspected and admitted or paroled into the United States." CAA § 1, 8 U.S.C. § 1255, note. The authority to parole an applicant for admission, of course, is set forth in § 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), with § 236 of the INA, 8 U.S.C. § 1226, providing additional authority concerning the conditions the Service may place on the alien's parole. An alien who is present without inspection, therefore, would not be eligible for CAA adjustment unless the alien first surrendered himself or herself into Service custody and the Service released the alien from custody pending a final determination of his or her admissibility. 3-22 Refugee Program Eligibility Guide for Service Providers, 02/08 Service officers will not deny parole to an alien whose parole would be consistent with Service parole regulations and policy, solely in order to preclude CAA eligibility. Nor does this policy require the parole of any alien whose parole would not be consistent with Service parole regulations and policy, merely because paroling the alien would open the path to CAA adjustment. In the absence of a disqualifying criminal record or other factors that would bar CAA adjustment, however, the on-going difficulty in actually removing aliens to Cuba and the availability of CAA adjustment should ordinarily weigh heavily in favor of a grant of parole. The Service may properly consider the avoidance of detention costs with respect to an alien whose actual removal is unlikely as a factor in determining, as a matter of discretion, that parole would yield a "significant public benefit." INA § 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). In similar fashion, the Service may properly consider the availability of CAA adjustment as a factor in determining, as a matter of discretion, that an "urgent humanitarian reason" justifies a grant of parole. Id. If the Service paroles the alien, he or she will be eligible to apply for employment authorization. 8 C.F.R. § 274a.12(c)(12). The Service is also aware that, because of the CAA eligibility requirements, the parole will be for at least 1-year, so that the alien will be a "qualified alien" for purposes of eligibility for Federal means-tested public benefits. 8 U.S.C. § 1641(b)(4). The alien will also be a "Cuban-Haitian entrant" for purposes of the Refugee Education Assistance Act of 1980, as amended. 8 C.F.R. § 212.5(g). Service officers will not consider these two factors as "adverse factors" in determining whether to grant or deny parole. (remainder of memo not relevant to this ORR State Letter) Office of Field Operations Customs and Border Protection Memo of 08/08/2006 August 8, 2006 OFO: ARMC PM MEMORANDUM FOR: FROM: DIRECTORS, FIELD OPERATIONS DIRECTOR, PRECLEARANCE Executive Director Admissibility Requirements and Migration Control Office of Field Operations Proper Completion of Form I-94, Arrival/Departure Record, for Cuban Parolees SUBJECT: The Office of Field Operations is forwarding information for mandatory 08/01, Refugee Program Eligibility Guide for Service Providers 3-23 discussion during musters. The information provided in the attached document should be disseminated to all ports of entry for inclusion in muster discussions held during the week of August 14, 2006. The June 10, 2005 Memorandum, entitled, Treatment of Cuban Asylum Seekers at Land Border Ports of Entry, directed ports of entry to place Cuban asylum seekers into 240 proceedings. The purpose of the attached muster is to provide further guidance regarding the I-94 notations for these cases. Currently, ports of entry are using various notations. The lack of a standard Customs and Border Protection notation for Cuban parolees, has caused confusion for other Federal, state, and local agencies, which come in contact with Cuban parolees. To standardize Cuban parolee Forms I-94, CBP Officers are instructed to write the following legend after the word “Purpose” in the parole stamp on the Form I-94: “Cuban Parolee (CC); pending 240 hearing.” Please ensure that the attached Muster Topic is discussed at daily musters during the week of August 14, 2006. If you have any questions regarding this muster topic, please contact Maureen Dugan, Admissibility Requirements and Migration Control, at (202) 344-2784. Paul M. Morris /s/ Attachment Office of Field Operations Customs and Border Protection Muster Memo of 08/14/2006 Date: August 14, 2006 Topic: Cuban Parolees and Arrival/Departure Record, Form I-94 Reference Materials: Section 212(d)(5) of the INA; Inspector’s Field Manual, Chapters 16 and 17 Office: Office of Field Operations, Admissibility Requirements and Migration Control This muster is to remind all CBP Officers to properly complete the Arrival/Departure Record, Form I-94, for Cuban parolees who are put into section 240 hearing proceedings. The CBP Officer’s processing of the Arrival/Departure Record, Form I-94, and other documents encountered during processing is a critical part of the CBP’s system of records and for outside entities, including other Federal, state and local agencies, which come into contact with Cuban parolees. After stamping the Arrival/Departure Record, Form I-94, with the parole stamp, the CBP Officer should legibly write the following legend after the word “Purpose” on the Form I-94: “Cuban Parolee (CC); pending 240 hearing.” The “CC” part of the 3-24 Refugee Program Eligibility Guide for Service Providers, 02/08 notation is the two-letter designation for Cuban parolees. This notation is crucial for other entities to ascertain that the bearer of the document is a Cuban parolee and entitled to certain benefits, including benefits given by Citizenship and Immigration Services (CIS) and Health and Human Services (HHS). See the Inspector’s Field Manual (IFM) Chapters 16 and 17 for additional Cuban processing requirements. Extract from ORR State Letter # 00-17 (note that references to the INS should be read to refer to USCIS or the appropriate other DHS component pursuant to the transfer of all INS responsibilities to DHS effective March 1, 2003) Acceptable documents for Cuban and Haitian entrants, in accordance with the requirements in 45 CFR §401.2: a) Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status* subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided Documents/Codes An I-94 Arrival/departure card with a stamp showing parole at any time as a "Cuban/Haitian Entrant (Status Pending)" CH6 adjustment code on the I-551 Comments I-94 may refer to §212(d)(5). Even after a Cuban/Haitian Entrant (Status Pending) becomes a permanent resident, he/she technically retains the status Cuban/Haitian Entrant (Status Pending). I-94 may refer to §212(d)(5). An I-94 Arrival/departure card with a stamp showing parole into the U.S. on or after April 21, 1980 A Cuban or Haitian passport with a §212(d)(5) stamp dated after October 10, 1980. *Note: ORR is not interpreting the phrase, "any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti" to refer to lawful permanent residence obtained under the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugee Immigration Fairness Act (HRIFA). Although NACARA and HRIFA offer a special opportunity for nationals of Cuba and Haiti, the status conferred by these laws, lawful permanent residence, is not a "special status." Thus, if the person did not qualify as a Cuban and Haitian entrant, adjustment of status, regardless of the legal basis for the adjustment, does not make the person a Cuban 08/01, Refugee Program Eligibility Guide for Service Providers 3-25 and Haitian entrant. a) A national of Cuba or Haiti who was paroled into the United States and has not acquired any other status under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion* has not been entered Documents/Codes An I-94 Arrival/departure card showing parole into the United States I-766 Employment Authorization Document with the code A04 I-766 Employment Authorization Document with the code C11 I-688B Employment Authorization Document with the provision of law 274a.12(a)(4)*** I-688B Employment Authorization Document with the provision of law 274a.12(c)(11)*** This is an older version of the employment authorization document but it is still in use. This is an older version of the employment authorization document but it is still in use. Comments I-94 may refer to §212(d)(5), humanitarian or public interest parole.** *Note 1: The question of whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 4015398. **Note 2: As treatment of Cuban and Haitian entrants has developed, INS officials, on occasion, may have used notations on the I-94s of Cuban and Haitian entrants that are not listed above. Eligibility workers may see various notations that convey parole. For example, eligibility workers, in the past, may have seen the notation, "EWI," which technically stands for "Entered Without Inspection" but was being used for individuals who were paroled. Please call (Thomas Pabst) at (202) 401-5398 if you encounter unusual notations or if you are uncertain of the relevance of a particular notation. ***Note 3: If an individual provides an I-688B Employment Authorization Document, which does not 3-26 Refugee Program Eligibility Guide for Service Providers, 02/08 provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national. b) A national of Cuba or Haiti who is the subject of removal, deportation or exclusion proceedings* under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion** has not been entered Documents/Codes INS Form I-221 Comments Order to Show Cause and Notice of Hearing Notice to Appear Order of Release on Recognizance Notice to Applicant Detained for a Hearing Before an Immigration Judge Order to Show Cause, Notice of Hearing and Warrant for Arrest Application for Asylum and Withholding of Removal; Individual is subject of removal, deportation or exclusion proceedings. Application to Register Permanent Residence or to Adjust Status; Individual is subject of removal, exclusion or deportation proceedings. Notice of Appeal, date stamped by the Office of the Immigration Judge Application for suspension of deportation/cancellation of removal submitted Application for suspension of deportation/cancellation of removal submitted INS Form I-862 INS Form I-220A INS Form I-122 INS Form I-221S Copy of INS Form I-589 date stamped by the Executive Office for Immigration Review (EOIR) Copy of INS Form I-485 date stamped by EOIR EOIR-26 I-766 Employment Authorization Document with the code C10 I-688B Employment Authorization Document with the provision of law 274a.12(c)(10)*** 08/01, Refugee Program Eligibility Guide for Service Providers 3-27 Other applications for relief that have been date stamped by EOIR Other documentation pertaining to an applicant’s removal, exclusion or deportation proceedings Example: a notice of a hearing date before an Immigration Judge *Note 1: Although the above documents show that proceedings have been initiated in a case, they cannot confirm that proceedings are continuing. In order to confirm that proceedings are continuing, eligibility workers will need to use other methods, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office or, if participating, accessing the INS SAVE system. If an eligibility worker cannot determine whether proceedings are ongoing, please call (Thomas Pabst) at (202) 401-5398. **Note 2: The question of whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 4015398. ***Note 3: If an individual provides an I-688B Employment Authorization Document, which does not provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national. a) A national of Cuba or Haiti who has an application for asylum pending with the Immigration and Naturalization Service and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion* has not been entered Documents/Codes INS receipt for filing Form I-589 Comments Application for Asylum and Withholding of Removal I-766 Employment Authorization document with the code C08 I-688B Employment Authorization Document with the provision of law 274a.12(c)(8)** * This is an older version of the employment authorization document but it is still in use. Note 1: The question of whether there is a final, nonappealable, legally enforceable order of removal, 3-28 Refugee Program Eligibility Guide for Service Providers, 02/08 deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 4015398. **Note 2: If an individual provides an I-688B Employment Authorization Document, which does not provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national. Contact Information Cuba Interests Section in U.S. 2630 and 2639 16th Street, NW, Washington DC 20009 Telephone: (202) 797-8518 Fax: (202) 986-7283 E-mail: cubaseccion@igc.apc.org URL: http://embacu.cubaminrex.cu/Default.aspx?tabid=1025 For additional information see ORR State Letter #00-17 and ORR State Letter #01-22. If you have questions about this ORR State Letter, please call Thomas S. Pabst at (202) 401-5398. 08/01, Refugee Program Eligibility Guide for Service Providers 3-29