Michigan Poverty Law Program

Michigan has a long tradition of participation in refugee resettlement and has diverse refugee communities throughout the state.  Refugees and asylees are eligible for LSC-funded legal assistance, and they have unique legal needs, particularly in the areas of public benefits and immigration law.  The difference between refugees and asylees is at once minor and major.  The legal definition is the same.  The basic international law definition incorporated into U.S. law by the Refugee Act of 1980 is codified at Section 101(a)(42)(A) of the Immigration and Nationality Act, 8 USC 1101(a)(42)(A), as: 

“any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

The difference is practical.  Refugees are identified outside of the United States and enter the U.S. with legal immigration status and employment authorization.  A nonprofit group is initially the sponsor of a refugee entering the United States. These groups are officially referred to as “Voluntary Agency” which is often shortened to “VOLAG.”   VOLAGs contract with the Department of State to provide services such as reception, basic orientation, counseling, food, shelter and health services to refugees. The VOLAGs act as referral sources to the appropriate local agencies for employment and English language training.  Would-be asylees, on the other hand, arrive in the U.S. in some other immigration status or with none at all, and must prove that they meet the legal definition of a refugee in order to be granted asylum. 

Individuals who have not yet been placed in removal (deportation) proceedings, may make an affirmative administrative application for asylum status to United States Citizenship and Immigration Services (USCIS).  Those already in removal proceedings who have not filed affirmative applications may plead eligibility for asylum status as a defense to removal.  Winning asylum status in either forum is a difficult and lengthy process and requires the assistance of an experienced practitioner.  However, those who cannot afford counsel are not entitled to counsel at government expense, even in removal proceedings.  Prior to a grant of asylum, applicants may or may not be eligible for employment authorization, depending on the timing of the proceedings and are not LSC-eligible unless and until the application for asylum is granted (though it is possible that asylum applicants may have some other basis of LSC alien eligibility).   Freedom House in Detroit specializes in handling asylum cases:  http://www.freedomhousedetroit.org/   In addition, a new law school clinic at Wayne State University will open in 2010 and will place a special emphasis on asylum cases.   Legal services offices should contact MPLP for support and referrals in asylum and other immigration matters.

Legal services programs are seeing public benefits issues arise for refugees and asylees.  Refugees qualify for special benefits under the Refugee Assistance Program (RAP).  Generally, RAP includes cash and medical benefits designed to help persons admitted into the U.S. as refugees become self-sufficient after their arrival.  However, RAP benefits are only available for up to eight (8) months after beneficiaries’ entry as refugees.  For asylees, who typically enter the United States without permanent status and may not be granted asylum for months or years (if ever), the date of eligibility for RAP benefits is the date that asylum status is granted.  Refugees ordinarily receive assistance with their RAP applications as part of the resettlement process, but many individuals who are granted asylum are not aware of their potential eligibility for benefits or of the limited period during which they are eligible.  Additional information on RAP benefits in Michigan is available at: http://www.michigan.gov/dhs/0,1607,7-124-5453_5526-15492--,00.html

Another public benefits issue frequently faced by refugees, asylees, and some other categories of humanitarian immigrants is the risk of loss of SSI benefits.  Humanitarian immigrants are among the few categories of immigrants eligible to receive SSI under the restrictive 1996 welfare law, but their eligibility ends after seven years if they have not been granted permanent residence and U.S. citizenship.  Refugees are eligible to apply for lawful permanent residence one year after their entry and they are eligible to apply for U.S. citizenship five years after their date of entry, as long as their permanent residence has already been approved.  However, refugee applications for lawful permanent residence and U.S. citizenship are, in some cases, taking many years to be approved or being held up indefinitely due to background checks and a complicated issue in the immigration law relating to when individuals may be determined to be ineligible for status for having provided “material support” to certain disfavored groups.  In addition, to be eligible for U.S. citizenship, applicants must be able to speak, read, and write the English language and pass a civics examination or qualify for a disability-based waiver of those requirements.   Disability for purposes of that waiver is narrowly interpreted, and many refugees who would qualify for SSI would not qualify for the waiver.

Congress rationalized the time limits as providing an incentive for humanitarian immigrants to naturalize quickly; U.S. citizens are free from these arbitrary time limits.  A recent law, the SSI Extension for Elderly and Disabled Refugees Act  (P.L. 110-328)  recognized that humanitarian immigrants face destitution while waiting for these applications to be processed and that they delays are often beyond their control.

The new law requires SSA to ask applicants to declare that they are "making a good faith effort to apply for citizenship" to the best of their physical and mental abilities.  A two year extension of benefits is available to aliens whose benefits were suspended during the time period from August 22, 1996 to September 30, 2008.    For those qualified aliens whose benefits were continued as of September 30, 2009 the seven year eligibility period is extended up to nine years during the period October 1, 2009 through September 30, 2011.  Effective October 1, 2011, the time limit is set to revert to seven years.  For any new applications filed on or after October 1, 2008, the time limited eligibility period is nine years through September 30, 2011. 

United States Citizenship and Immigration Services has also provided special channels for humanitarian immigrants with pending applications to request expedited decisions if they are in danger of losing SSI benefits pursuant to a class action settlement.  Details on the “Kaplan Settlement” procedure are available at: http://www.uscis.gov/files/article/Kaplan_QA_5June08.pdf