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Bloggings on Political Asylum

by Jason Dzubow

Section 13: An Asylum Alternative for Diplomats

Diplomats who cannot return to their countries can claim asylum, like anyone else.  But an alternative form of relief is available: Section 13 of the Immigration and Nationality Act allows individuals who entered the United States under diplomatic status to obtain a green card.  To be eligible for residency under Section 13, you must demonstrate that:

  • You entered the United States as an A-1, A-2, G-1, or G-2 nonimmigrant
  • You failed to maintain your A-1, A-2, G-1, or G-2 nonimmigrant status
  • Your duties were diplomatic or semi-diplomatic
  • There is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat
  • You are a person of good moral character
  • You are admissible to the United States for permanent residence
  • Granting you a green card would be in the national interest of the United States

Several of these requirements are a bit tricky.  First, you must show that your duties were diplomatic or semi-diplomatic.  “Aliens whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under section 13.” See Matter of —, Administrative Appeals Office, July 23, 2007.  Second, you must show a compelling reason why you cannot return to the country that accredited you.  Fear of persecution would qualify as a “compelling reason,” but the law does not seem limited to such claims. Id. (however, the inability to support oneself in the home country is not a “compelling reason”).  Finally, you would need to show that granting residency is in the “national interest” of the United States.  The only information I could find about this requirement is in the AAO decision, mentioned above, which notes that being a healthy, hard working man who can contribute to society is not the type of advantage to our national interest envisaged by the Act. Id.

Diplomats get all the perks.

To apply for section 13 relief, a diplomat must file an I-485 form with supporting documents.  More information about the requirements is available here.  The diplomat may also apply for a work permit (I-765) while the application for permanent residency is pending.

So what is the advantage of section 13 adjustment over asylum?  For one thing, it appears that section 13 adjustment does not require any nexus between the feared harm and a protected ground (race, religion, nationality, particular social group or political opinion).  Another advantage is that the person immediately obtains a green card; an asylee must wait for one year before applying for residency.  One disadvantage to section 13 is that the diplomat would not be eligible for some of the special benefits available to asylees (like housing assistance and job placement).  Another disadvantage is that diplomats must show granting them residency is in the U.S. “national interest.”

I imagine section 13 would come in handy for diplomats from a country like Syria.  Although I have not heard about mass defections from that embassy, one can only hope that professional diplomats would have the courage to abandon a regime that is murdering thousands of people.  Section 13 allows such people to take a stand against their government and remain safely in the United States.

Originally posted on the Asylumist:

About The Author

Jason Dzubow's practice focuses on immigration law, asylum, and appellate litigation. Mr. Dzubow is admitted to practice law in the federal and state courts of Washington, DC and Maryland, the United States Courts of Appeals for the Third, Fourth, Eleventh, and DC Circuits, all Immigration Courts in the United States, and the Board of Immigration Appeals. He is a member of the American Immigration Lawyers Association (AILA) and the Capital Area Immigrant Rights (CAIR) Coalition. In June 2009, CAIR Coalition honored Mr. Dzubow for his Outstanding Commitment to Defending the Rights and Dignity of Detained Immigrants.

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

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