Matter of N-A-I-, 27 I&N Dec. 3898 Decided August 3, 2017
Interim Decision # 3898
(1) An alien who adjusts status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted asylum to that of an alien lawfully admitted for permanent residence, thereby terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), clarified.
(2)The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A) (2012), do not apply to an alien granted asylum whose status is adjusted to that of an alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.
72
Matter of N-A-I-, Respondent
Decided August 3, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who adjusts status under section 209(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1159(b) (2012), changes his or her status from that of an alien granted
asylum to that of an alien lawfully admitted for permanent residence, thereby
terminating the alien’s asylee status. Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014),
clarified.
(2) The restrictions on removal in section 208(c)(1)(A) of the Act, 8 U.S.C. § 1158(c)(1)(A)
(2012), do not apply to an alien granted asylum whose status is adjusted to that of an
alien lawfully admitted for permanent residence pursuant to section 209(b) of the Act.
FOR RESPONDENT: Brian Vincent Schaeffer, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: James E. Manning, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, LIEBOWITZ, Board Members.
MALPHRUS, Board Member:
In a decision dated December 5, 2014, we dismissed the respondent’s
appeal from the Immigration Judge’s denial of his applications for asylum,
withholding of removal, and protection under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988) (“Convention
Against Torture”). The United States Court of Appeals for the Fifth Circuit
has remanded the record for us to further consider whether the respondent’s
asylee status was terminated when he adjusted his status to that of an alien
lawfully admitted for permanent residence pursuant to section 209(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1159(b) (1994). Ali v. Lynch,
814 F.3d 306 (5th Cir. 2016). For the following reasons, the respondent’s
appeal will again be dismissed.
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Pakistan who entered the United
States in 1991 and was granted asylum on December 3, 1992, in exclusion
proceedings. He subsequently adjusted his status to that of an alien lawfully
admitted for permanent residence pursuant to section 209(b) of the Act. On
May 17, 2013, he was convicted in Texas of possession of a controlled
substance.
The Department of Homeland Security (“DHS”) initiated removal
proceedings against the respondent, charging him with removability under
section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an
alien convicted of a crime relating to a controlled substance. In removal
proceedings, the respondent filed new applications for asylum, withholding
of removal, and protection under the Convention Against Torture, which the
Immigration Judge denied in a decision dated September 10, 2013.
The respondent appealed from that decision, arguing, inter alia, that he
cannot be removed because his asylee status was never terminated. On
February 11, 2014, we remanded the record for further proceedings.
Subsequently, we issued Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), in
which we held that an alien whose status has been adjusted from that of
asylee to lawful permanent resident pursuant to section 209(b) of the Act no
longer qualifies as an asylee and therefore cannot later readjust status under
that section. In light of our holding in Matter of C-J-H-, the Immigration
Judge concluded that the respondent was no longer an asylee and certified
the record to us in a decision dated June 3, 2014. We affirmed the
Immigration Judge’s determination that the respondent is no longer an asylee
and his denial of the respondent’s new applications for relief, and we
dismissed the appeal.1
On petition for review, the respondent argued that the plain language of
section 208(c) of the Act, 8 U.S.C. § 1158(c) (2012), prohibits his removal
without termination of his asylee status and that his adjustment to lawful
permanent resident status did not terminate his asylee status. The court
analyzed this argument under the framework in Chevron, U.S.A., Inc.,
v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984), finding that
while section 208(c)(2) of the Act could be reasonably read as providing an
exhaustive list of grounds for terminating asylee status, a reasonable
interpretation of section 209(b) is that adjustment from the status of an asylee
to that of an alien lawfully admitted for permanent residence entails a change
in status, thereby terminating the alien’s asylee status. Thus, the court
1 Because the respondent did not challenge the Immigration Judge’s denial of his
application for protection under the Convention Against Torture, we deemed that issue
waived. See Matter of M-B-C-, 27 I&N Dec. 31, 31 n.1 (BIA 2017).
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concluded that Congress left open whether adjustment of status under section
209(b) of the Act terminates asylee status.
Although the Fifth Circuit recognized that our determination that the
respondent is no longer an asylee was based on our previous holding in
Matter of C-J-H-, it declined to accord our decision Chevron deference on
the grounds that we did not fully consider the language and legislative history
of the statute and other matters identified by the court. The court vacated our
decision and remanded the record for us to issue a new decision. Upon
further review, we continue to conclude that an alien’s adjustment from the
status of an alien granted asylum to that of an alien lawfully admitted for
permanent residence pursuant to section 209(b) of the Act terminates the
alien’s asylee status.
II. STATUTORY AND REGULATORY AUTHORITY
A. Termination Under Section 208(c) of the Act
Section 208(c)(1)(A) of the Act prohibits the Attorney General from
removing or returning “an alien granted asylum” under section 208(b) of the
Act “to the alien’s country of nationality or, in the case of a person having
no nationality, the country of the alien’s last habitual residence.” See also
8 C.F.R. §§ 208.22, 1208.22 (2017) (providing that an “alien who has been
granted asylum may not be deported or removed unless his or her asylum
status is terminated pursuant to” 8 C.F.R. § 208.24 or § 1208.24 (2017)).
However, the same section also makes clear that a grant of asylum does not
convey a right to remain permanently in the United States and may be
terminated if the Attorney General determines that
(A) the alien no longer meets the conditions described in subsection (b)(1) owing
to a fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2);
(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to
a country (other than the country of the alien’s nationality or, in the case of an alien
having no nationality, the country of the alien’s last habitual residence) in which the
alien’s life or freedom would not be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion, and where
the alien is eligible to receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the protection of the
alien’s country of nationality or, in the case of an alien having no nationality, the
alien’s country of last habitual residence, by returning to such country with
permanent resident status or the reasonable possibility of obtaining such status with
the same rights and obligations pertaining to other permanent residents of that
country; or
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(E) the alien has acquired a new nationality and enjoys the protection of the
country of his or her new nationality.
Section 208(c)(2) of the Act. An alien described in section 208(c)(2) of the
Act “is subject to any applicable grounds of inadmissibility or deportability,”
and his or her “removal or return shall be directed by the Attorney General
in accordance with sections 240 and 241” of the Act, 8 U.S.C. §§ 1229a and
1231 (2012). Section 208(c)(3) of the Act.
B. Adjustment of Status Under Section 209(b) of the Act
Under section 209(b) of the Act, the Secretary of Homeland Security or
the Attorney General may, in the exercise of discretion, “adjust to the status
of an alien lawfully admitted for permanent residence the status of any alien
granted asylum” who applies for adjustment and satisfies certain eligibility
requirements. Upon approval of an application, a record of the alien’s
admission for lawful permanent residence will be established “as of the date
one year before the date of the approval of the application.” Id.
III. ANALYSIS
Based on the statutory language, as well as the relevant regulatory
provisions, case law, and legislative history, we conclude that the best
reading of sections 208(c) and 209(b) of the Act is that an “alien granted
asylum” under section 208(b) who has his or her status adjusted to that of
“an alien lawfully admitted for permanent residence” pursuant to section
209(b) does not retain the status of an alien granted asylum and therefore the
restrictions on removal set forth in section 208(c)(1)(A) no longer apply.
While the phrase “adjustment of status” is not expressly defined by the
Act, to “adjust” means “to bring to a more satisfactory state,” or “to change
the position of.” Adams v. Holder, 692 F.3d 91, 97 (2d Cir. 2012) (quoting
Webster’s Third New International Dictionary 27 (1986)). An adjustment of
status under the Act involves a change from one status to another status, not
the acquisition of an additional status. In other words, an alien whose status
is changed does not retain his or her previous status. In the context of section
209(b) of the Act, the adjustment entails a change from “the status of an[]
alien granted asylum” to “the status of an alien lawfully admitted for
permanent residence,” which extinguishes the alien’s asylee status.
The respondent claims that the conditions listed in section 208(c)(2) of
the Act are the sole grounds for the termination of a grant of asylum.
However, the text of section 208(c)(2) does not state that it is an exhaustive
list of possible reasons for termination. Moreover, the regulations governing
the termination of a grant of asylum do not support the respondent’s
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interpretation because they provide that a grant of asylum may also be
terminated where there is a showing of fraud in the alien’s application such
that he or she was not eligible for asylum at the time it was granted. 8 C.F.R.
§§ 208.24(a)(1), 1208.24(a)(1).2
The view that the list in section 208(c)(2) of the Act does not provide
continuing protection for aliens who adjust to lawful permanent resident
status is supported by the language of the provision. Section 208(c)(2)
expressly states that “[a]sylum granted under subsection (b) does not convey
a right to remain permanently in the United States.” In addition, section
208(c)(3) confirms that an alien whose asylee status is terminated pursuant
to section 208(c)(2) is subject to any applicable grounds of inadmissibility or
deportability. In other words, being granted asylum is not the same as having
lawful permanent resident status, and removal proceedings may ensue if an
alien’s asylee status is terminated. It does not follow that an alien who
voluntarily surrenders asylee status through adjustment of status under
section 209(b) of the Act can only be removed after first undergoing the
termination process set forth in section 208(c)(2) and its implementing
regulations. Because an alien whose status is adjusted to that of a lawful
permanent resident under section 209(b) no longer has the status of “an alien
granted asylum,” he or she is no longer protected by the bars to removal set
forth in section 208(c)(1)(A) of the Act and 8 C.F.R. §§ 208.22 and 1208.22.
The Fourth Circuit recently reached the same conclusion in Mahmood
v. Sessions, 849 F.3d 187 (4th Cir. 2017). In that case, an alien granted
asylum had his status adjusted to that of an alien lawfully admitted for
permanent residence under section 209(b) of the Act. The Fourth Circuit
upheld our determination that his asylee status ended when it was adjusted
to that of a lawful permanent resident.
As the Fourth Circuit stated, the language of section 209(b) identifies two
immigration statuses and describes a process for an alien to “adjust to” the
status of an alien lawfully admitted for permanent residence from the status
of an alien granted asylum. Id. at 191. We agree that this language indicates
“a change to and not an accretion of the second status.” Id. (citing Adams,
692 F.3d at 97 (“Plainly, then adjustment of status . . . references some
change in that status corresponding to a change in the alien’s relationship to
2 The regulations provide that the termination provisions described in section 208(c)(2) of
the Act are only applicable if the underlying application was filed on or after April 1, 1997.
8 C.F.R. §§ 208.24(a)(2), 1208.24(a)(2). An application filed prior to that date may be
terminated where “the alien no longer has a well-founded fear of persecution upon return
due to a change of country conditions in the alien’s country of nationality or habitual
residence or the alien has committed any act that would have been grounds for denial of
asylum” under 8 C.F.R. § 208.13(c)(2) or § 1208.13(c)(2) (2017). 8 C.F.R. §§ 208.24(a)(3),
1208.24(a)(3).
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this country.”)). The court found the voluntary surrender of asylee status
through adjustment of status under section 209(b) of the Act to be
distinguishable from the involuntary loss of asylee status under section
208(c) and its implementing regulations. It determined that both provisions
could be read harmoniously, with section 208(c) “governing asylees while
they retain that status” and section 209(b) “serving as a bridge to an entirely
different status with different rights and responsibilities.” Id. at 192.
Consequently, the Fourth Circuit concluded that the most reasonable
reading of section 209(b) of the Act is that once an asylee has adjusted his or
her status to that of an alien lawfully admitted for permanent residence, the
alien is “fully considered a lawful permanent resident and not an asylee” and
can therefore “be removed without a requirement that the Attorney General
conduct an asylum termination proceeding under [section 208(c)(2)].” Id. at
193. As the court explained, “Congress, with the enactment of [section 209
of the Act], can be seen as deciding sensibly that, where an alien voluntarily
seeks adjustment under [section 209(b)] and gains the advantages of lawful
permanent residency, he gives up the absolute right to have the protections
of his asylum status adjudicated before removal.” Id. at 192. The court
further held that, even assuming the statute is ambiguous, our holding in
Matter of C-J-H- was reasonable and entitled to Chevron deference. Id. at
193−95.
It is significant that an alien’s asylee status can only be terminated under
section 209(b) of the Act if he or she voluntarily chooses to seek adjustment
of status under that section. There are many reasons why an alien might
choose to give up the protections of asylee status for lawful permanent
resident status, but he or she is not required to do so and may remain
indefinitely as an asylee. As the Fourth Circuit noted, an asylee who adjusts
status under section 209(b) obtains significant benefits, including “a direct
path to naturalized citizenship,” a better chance for his or her family to obtain
lawful permanent residence, and “the right to travel outside of the United
States without the advance permission of a refugee travel document.” Id. at
192. An asylee who adjusts to lawful permanent resident status also cannot
have that status terminated on the grounds that he no longer has a
well-founded fear of persecution. Id. However, an alien who prefers to retain
the benefits and protections of asylee status, including the restrictions against
removal under section 208(c) of the Act, is not obligated to file an application
for adjustment of status.
It is also significant that an alien who is placed in removal proceedings
after adjusting status under section 209(b) of Act is not without a mechanism
for seeking asylum or other protection from harm in his or her country of
nationality. Under these circumstances, the alien can file a new asylum
application with the Immigration Judge. Although an asylum applicant
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generally must file within 1 year after the date of arrival in the United States,
the application will not be denied as untimely if the applicant demonstrates
the existence of extraordinary circumstances relating to the delay in filing,
which include maintaining lawful immigrant or nonimmigrant status until a
reasonable period before the filing of the application. Sections 208(a)(2)(B),
(D) of the Act; 8 C.F.R. §§ 208.4(a)(5)(iv), 1208.4(a)(5)(iv) (2017). Also,
the 1-year bar is not applicable to applications for withholding of removal or
protection under the Convention Against Torture, so these applications may
be available even if asylum is not. See, e.g., Arif v. Mukasey, 509 F.3d 677,
680 (5th Cir. 2007).
We held in Matter of C-J-H-, 26 I&N Dec. at 285, that an alien whose
status is adjusted from that of asylee to that of lawful permanent resident no
longer qualifies as an asylee. That case presented the related but separate
question whether an alien granted asylum who has his or her status adjusted
to that of an alien lawfully admitted for permanent residence under section
209(b) of the Act can later readjust under that section. We now clarify that
adjustment of status under section 209(b), by its nature, changes the status of
an alien granted asylum to that of an alien lawfully admitted for permanent
residence, thereby terminating the alien’s asylee status. We note that we do
not reach this conclusion based on the similarities between asylees and
refugees, but rather based on the language of sections 208(c) and 209(b) of
the Act, the language and structure of the Act as a whole, and the nature and
consequences of the process of adjustment of status.
We see no conflict between our conclusion that an alien granted asylum
who has his or her status adjusted to that of an alien lawfully admitted for
permanent residence under section 209(b) of the Act does not retain the status
of an alien granted asylum and our statement in Matter of V-X-, 26 I&N Dec.
147, 149 (BIA 2013), that the statutory grounds for termination of asylum
are narrower than the grounds for removability. In that case, an alien granted
asylum was subsequently placed in removal proceedings and ordered
removed from the United States by an Immigration Judge as a result of
multiple criminal convictions. At the time he was ordered removed, the
alien’s status had not been adjusted pursuant to section 209(b) of the Act or
terminated under section 208(c) and its implementing regulations. Because
the Immigration Judge’s decision included no analysis of the termination
issue and did not order the alien’s asylee status terminated, we remanded the
record for the Immigration Judge to enter a new decision with respect to the
termination of the alien’s asylee status.
Our statement that the statutory grounds for termination are narrower than
the grounds for removability was intended to clarify that a finding of
removability does not trigger the automatic termination of asylee status and
that the issue of termination needed to be addressed by the Immigration
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Judge. Unlike the alien in Matter of V-X-, whose removal was precluded
while he retained asylee status, an asylee who chooses to adjust his status to
that of an alien lawfully admitted for permanent residence pursuant to section
209(b) of the Act is subject to all applicable grounds of removability.
We also see no conflict between our holding and 8 C.F.R. §§ 208.14(g)
and 1208.14(g) (2017), which provide that if an asylum applicant is granted
lawful permanent resident status, the asylum application is presumed
abandoned and dismissed without prejudice unless the applicant submits a
written request that it be adjudicated. These regulations apply solely to an
alien applying for asylum, not an alien who has been granted asylum and
subsequently has his asylee status adjusted to that of a lawful permanent
resident. The presumption of abandonment supports the view that an alien’s
adjustment of status to that of a lawful permanent resident under section
209(b) extinguishes a claim to asylee status.
We are unaware of anything in the legislative history of the Act that
indicates Congress intended for an alien who voluntarily adjusted his status
under section 209(b) of the Act to retain the protections provided to asylees
under section 208(c)(1)(A). The provisions governing termination of asylee
status and adjustment of status for aliens granted asylum were added to the
statute by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102
(“Refugee Act”). Initially, a grant of asylum could be terminated where the
Attorney General determined that the alien was “no longer a refugee within
the meaning of section 101(a)(42)(A) [of the Act] owing to a change in
circumstances in the alien’s country of nationality or, in the case of an alien
having no nationality, in the country in which the alien last habitually
resided.” Refugee Act § 201(b), 94 Stat. at 105 (codified at section 208(b)
of the Act, 8 U.S.C. § 1158(b) (1982)). Congress later replaced that provision
with the expanded list of termination grounds currently set forth in
section 208(c)(2) of the Act. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 604(a),
110 Stat. 3009-546, 3009-692 to -693.
It has long been recognized that one of Congress’ primary purposes in
passing the Refugee Act was to implement the principles agreed to in the
United Nations Protocol Relating to the Status of Refugees, opened for
signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into
force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and the
United Nations Convention Relating to the Status of Refugees, adopted July
28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22,
1954) (“Convention”). See, e.g., Matter of J.M. Alvarado, 27 I&N Dec. 27,
30 n.3 (BIA 2017). Article 1(C) of the Convention lists six grounds for the
cessation of refugee status, which together with the three exclusion
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categories described in Article 1(F), generally correspond to the grounds for
termination set forth in section 208(c)(2) of the Act.
Guidance regarding the “cessation clauses” is provided in Chapter III of
the Office of the United Nations High Commissioner for Refugees,
Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees 23−27 (reissued 2016) (“Handbook”).3 Paragraph
116 of the Handbook indicates that the six cessation grounds in Article 1(C)
of the Convention are “exhaustively enumerated” and that “no other reasons
may be adduced . . . to justify the withdrawal of refugee status.” Id. at 24.
However, paragraph 117 of the Handbook clarifies that Article 1(C) does not
deal with the cancellation of refugee status, which is distinguishable from
cessation and normally occurs where it comes to light that an individual
should never have been recognized as a refugee in the first place, such as
where he or she falls within one of the exclusion categories described in
Article 1(F). Id.; see also id. at 29−32 (discussing the exclusion clauses in
Article 1(F) of the Convention). Thus, even if Article 1(C) provides an
exhaustive list of the grounds for the cessation of refugee status, cessation is
not the sole means by which refugee status may be ended.
Moreover, paragraph 116 of the Handbook separately acknowledges that
“if a refugee, for whatever reasons, no longer wishes to be considered a
refugee, there will be no call for continuing to grant him refugee status and
international protection.” Id. at 24. In other words, the Convention provides
both for the involuntary loss of refugee status, through either cessation or
cancellation, as well as the voluntary surrender of that status. Thus, we see
no conflict between Congress’ intent to implement the principles agreed to
in the 1967 Protocol and the 1951 Convention and our conclusion that section
209(b) of the Act allows an alien who voluntarily surrenders his or her asylee
status to become a lawful permanent resident.4
3 Construction of the provisions of the Protocol, and by extension those of the Convention,
falls within the authority of each State that is a party to the Protocol. See Matter of Acosta,
19 I&N Dec. 211, 220 (BIA 1985), modified on other grounds, Matter of Mogharrabi,
19 I&N Dec. 439 (BIA 1987). While the Handbook is a useful tool in construing our
obligations under the Protocol, it is neither binding on the United States nor controlling as
to our construction of the Act. Id.
4 We recognize that the Office of the United Nations High Commissioner for Refugees
(“UNHCR”) has issued an opinion letter taking the position that an individual’s refugee
status does not cease if he or she becomes a lawful permanent resident and that acquisition
of lawful permanent residence is not a basis for cancellation of refugee status. See Letter
from R. Andrew Painter, Senior Protection Officer, to Robert Pauw, Esq. (Feb. 28, 2003),
reprinted in 80 Interpreter Releases, No. 11, Mar. 17, 2003, at 413 & app. III at 423−29.
The UNHCR’s opinion is not binding on us or controlling as to our construction of the Act.
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IV. CONCLUSION
For the foregoing reasons, we conclude that an alien who was granted
asylum but subsequently adjusted his or her status to that of an alien lawfully
admitted for permanent residence under section 209(b) of the Act does not
retain asylee status and is therefore no longer protected by the restrictions on
removal set forth in section 208(c)(1)(A) of the Act or its implementing
regulations.
The respondent’s asylee status was terminated when he adjusted his status
to that of an alien lawfully admitted for permanent residence pursuant to
section 209(b) of the Act. Consequently, his removal is not precluded by the
Act or the regulations. We therefore affirm the Immigration Judge’s
determination that he is removable from the United States. For the reasons
set forth in our December 5, 2014, decision, we also affirm the Immigration
Judge’s denial of the respondent’s current applications for asylum and
withholding of removal. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.
Footnote
See Matter of Q-T-M-T-, 21 I&N Dec. 639, 651 (BIA 1996) (considering but declining to
adopt the position set forth in a UNHCR opinion letter). Moreover, an opinion letter carries
less weight than other, more formal sources of guidance, particularly the Handbook. While
the letter takes the view that the “acquisition” of lawful permanent resident status does not
trigger the involuntary loss of refugee status through cessation or cancellation, it does not
address the exact issue here, which concerns what happens when an individual voluntarily
surrenders his or her asylee status through the process of adjustment of status. In any event,
to the extent that the UNHCR’s opinion letter supports the respondent’s position, it does
not persuade us to adopt his interpretation of the adjustment of status provisions in the Act.