The obscure legal case shielding refugees

U.S. Secretary of Homeland Security Kristi Noem last month sent a letter to Attorney General Pam Bondi, asking her to overturn a relatively obscure Board of Immigration Appeals case. The case, known as Matter of D-K-, isn’t often referenced in courtrooms.

“This is a very rare bird in immigration court,” said David Koelsch, an attorney at the refugee resettlement agency World Relief. “In seven-plus years as an immigration judge, I think I had it come up twice.”

Despite its obscurity, the 2012 case has returned to the spotlight in recent weeks—and so have the legal questions it addresses. Those questions center on how the government must treat refugees after they’ve arrived in the United States. Immigrant advocates argue that overturning Matter of D-K- would expose more refugees to unfair deportation proceedings. But others argue the government’s bid to overturn the case represents an effort to enforce immigration laws as they’ve been written by Congress.

Late last year, the Trump administration began scrutinizing lawfully admitted refugees who’d recently entered the United States. It decreed that immigration authorities must re-vet all refugees admitted into the country under former President Joe Biden. The administration reiterated that decision days later, when an Afghan national opened fire on two U.S. National Guard members near the White House.

Just last month, the U.S. Department of Homeland Security launched Operation PARRIS, an initiative ostensibly targeting fraudulent refugee applicants in Minnesota. A federal judge soon paused that operation after several refugees sued, saying federal agents unlawfully detained them even though they’d followed all the rules given to them for being in the United States.

In recent weeks, the Trump administration has doubled down on its scrutiny of lawfully admitted refugees by mandating that refugees voluntarily turn themselves in to DHS authorities if they’ve spent a year in the United States and haven’t adjusted to lawful permanent resident status—a status the administration has also blocked recently arrived refugees from obtaining.

Matter of D-K- essentially determined that refugees who had entered the United States were to be considered as individuals who had been “admitted” into the country, legally speaking. That meant that they couldn’t be deported as easily. To remove a hurdle to deportations, the DHS would like the case vacated—which the Justice Department can do since immigration courts fall within its jurisdiction.

Federal immigration law recognizes two groups of people who can be deported from the United States—those “deportable” and those “inadmissible,” explained Virgil Wiebe, a law professor at St. Thomas School of Law who runs the school’s immigration law clinic.

The “inadmissible” includes illegal immigrants who’ve crossed the border without approval. The “deportable” includes individuals admitted legally into the country at some point in the past—such as those with student visas or temporary work visas—who then commit a criminal offense that warrants them being removed.

Koelsch explained the distinction using an amusement park analogy.

“If you go to an amusement park and you buy a ticket and then you go in through the gate and you’re riding the rides and all that kind of stuff and then maybe you do something wrong … then they ultimately kick you out of the park,” Koelsch said. “Contrast that with somebody who climbs the fence to the amusement park and sneaks into the park and is riding the rides. ... If they get caught, they just kick them right out.”

According to Matter of D-K-, refugees are considered to have paid for their ticket and lawfully entered the amusement park, Koelsch said. But that’s not the way that the Trump administration sees it.

Andrew Arthur, a former immigration judge and resident fellow in law and policy at the Center for Immigration Studies, explained that the Immigration and Nationality Act doesn’t consider refugees to be lawfully admitted until they’ve been in the country for a year, gone through another round of vetting, and received their green card.

“Section 209 of the INA,” Arthur said, “contains a scheme under which a person who has been allowed into the United States as a refugee is then re-inspected after one year.”

According to the statute, such refugees “shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant.”

That “for admission” is important, said Arthur. Refugees, in the eyes of the INA, aren’t fully admitted into the United States once they arrive in the country. Rather, they’re essentially on a probationary status. They’re not fully admitted until they’ve been in the country for a year, been vetted again, and obtained a change of legal status.

Proposing a different analogy, Arthur suggested it was like inviting someone into his home who was being chased by a mugger.

“I’d let you in. And then, after I let you in, I would ask you some questions about why exactly you need to be in my house, or how long you’re going to stay,” Arthur said. “But previous administrations—and this law dates back to 1980—have never really treated it the way the Congress has written it.”

That’s also not the way that most immigration experts and lawyers have viewed the refugee admissions process, according to Koelsch.

“Historically, if somebody came as a refugee, it was really just sort of a foregone conclusion that, after a year, they would apply to become a permanent resident,” Koelsch said. “Assuming they didn’t commit crimes or something like that along the way, they would get a green card and then become a U.S. citizen, and live a healthy, happy life.”

But the Trump administration released a memo last week saying that it will now treat refugees who haven’t obtained green cards as though they still weren’t lawfully admitted, citing Section 209 of the INA. Refugees who didn’t have a green card after a year would be subject to arrest and detention by federal officials, the memo said. DHS also explained in that memo—which it submitted to a federal court—that it would arrest and detain any refugees who didn’t voluntarily return themselves to DHS custody a year after they entered the country.

But Virgil Wiebe says that’s an impossible bar for refugees to meet.

“You cannot apply for adjustment of status as a refugee until you’ve been in the country for a year. And it usually takes months and months and months and months and sometimes years for immigration to process that application,” Wiebe said. “So it is just a literal impossibility for someone to apply for their green card and the same day get their green card.”

In the past, refugees have been vetted without needing to be detained, Wiebe said, and applications for and decisions to hand out green cards have often been done remotely.

“The process has worked pretty well for decades,” he said. “There have been the occasional situations where a refugee has gone off the rails and killed somebody. And those incidents get a lot of play, as they should, but shouldn’t be what drives immigration policy.”

Koelsch cautioned against overstating the effects of overturning of Matter of D-K-, but he did note that it would mean that more refugees would soon be pushed into deportation proceedings. World Relief is preparing legal means of responding to the situation in the event that the DOJ overturns the case.

For refugees who’ve come into the United States, though, returning to court is an unhappy prospect.

“They’ve been through some horrific experiences in their home country,” Koelsch said. “They can’t live there anymore. They had to flee. And now they’re having to basically prove everything all over again, and having their lives in the United States really placed in jeopardy—in a country where they thought that they were finally safe. So it’s incredibly disruptive and frustrating for a lot of people.”

—This story has been corrected to reflect that the Afghan immigrant who shot two National Guard members in Washington, D.C., was not a refugee.