ORR Policy Letter 16-01 Frequently Asked Questions
In follow-up to certain immigration changes and questions that have come to our attention, ORR developed this FAQ, effective February 2, 2021, to notify the network of some clarifications to ORR Policy Letter 16-01, regarding Cuban and Haitian entrants and asylees. The answers provided herein are consistent with refugee policy objectives and will allow ORR-eligible populations to receive critical assistance and services. Note, all examples used in this FAQ are fictitious.
If, after reviewing the below, an eligibility worker remains uncertain about an applicant's eligibility, please contact the Refugee Policy Unit, at RefugeeEligibility@acf.hhs.gov. If sending documentation with personally identifiable information, please send the documentation in a password protected PDF and send the password in a separate email. Please note that the RPU is unable to answer hypothetical questions.
Q1: For a Cuban or Haitian entrant who is eligible for ORR benefits and services, what should the eligibility date be if the entrant was immediately detained after being placed into removal proceedings?
A1: To answer Q1, footnote 3 of ORR PL 16-01 referenced:
“Eligibility workers should determine the date on which the Cuban or Haitian first became a Cuban or Haitian entrant. For example, a Cuban presenting with evidence of a recent parole might have been granted parole previously. In such a scenario, the date of grant of the initial parole and not the date of the subsequent parole is the entry date for eligibility for ORR benefits and services. Or in a case where the Cuban or Haitian was initially paroled, then later placed in removal proceedings, the date of the initial parole and not the date of placement in removal proceedings is the entry date for eligibility for ORR benefits and services.”
While ORR PL 16-01’s footnote 3 remains valid, in terms of this question, ORR interprets the eligibility or “entry date” as the date the Cuban or Haitian entrant entered into the community. If (a) the U.S. Department of Homeland Security (DHS) detains a Cuban or Haitian entrant, then (b) subsequently releases the entrant into the community, and (c) there is DHS documentation that shows the release date into the community, the eligibility date would be that date of release into the community.
Example 1: Ms. Romero is a citizen of Cuba. Ms. Romero presented herself at a port of entry in California on March 1, 2019. DHS granted Ms. Romero parole into the United States and issued her an I-94. Ms. Romero applied for long-term immigration relief but had not received any special status. In July 2019, she returned to Cuba due to a family emergency. Ms. Romero returned to the U.S. on January 1, 2021. DHS placed Ms. Romero into removal proceedings and issued her an I-862, Notice to Appear. She does not have a final, non-appealable, and legally enforceable order of removal, deportation or exclusion entered in her case. According to ORR’s PL 16-01, Ms. Romero is eligible for ORR benefits and services. However, according to ORR PL 16-01 footnote 3, Ms. Romero’s eligibility date is the date DHS granted her initial parole, March 1, 2019, the first date she entered into the community.
Example 2: Mr. Baptiste is a citizen of Haiti. Mr. Baptiste presented himself at a port of entry in Texas on August 27, 2019. DHS placed Mr. Baptiste in removal proceedings, detained him, and issued him an I-862, Notice to Appear. On July 1, 2020, an Immigration Judge continued Mr. Baptiste’s immigration case. On July 2, 2020, DHS released Mr. Baptiste into the community and issued him an I-220A, Order of Release on Recognizance. Mr. Baptiste is still in removal proceedings, but he does not have a final, non-appealable, and legally enforceable order of removal, deportation, or exclusion entered in his case. According to ORR’s PL 16-01, Mr. Baptiste is eligible for ORR benefits and services. His eligibility date is July 2, 2020, the first date he entered into the community.
Q2: For a Cuban or Haitian entrant who is eligible for ORR benefits and services, what should the eligibility date be if the entrant was placed in the Migrant Protection Protocols (MPP) program and subsequently released into the community by DHS?
A2: While ORR PL 16-01’s footnote 3 remains valid, in terms of this question, ORR interprets the eligibility or “entry date” as the date the Cuban or Haitian entrant entered into the community. Therefore, if (a) DHS places a Cuban or Haitian in the MPP program and the entrant is not initially released into a community in the U.S. (but detained or forced to remain in Mexico), then (b) DHS subsequently releases the entrant into the community, and (c) there is DHS paperwork to confirm this date of release, the date of release into the community would count as the eligibility date for the Cuban or Haitian entrant.
Example: Mr. Pierre is a citizen of Haiti. Mr. Pierre presented himself at a port of entry in Texas on January 1, 2020. DHS placed Mr. Pierre in removal proceedings and issued him an I-862, Notice to Appear. DHS also placed Mr. Pierre in the MPP program and instructed him to remain in Mexico, until his next immigration court hearing, when he should present himself at the port of entry. Mr. Pierre remained in Mexico, until he attended his immigration court hearing on February 1, 2021. On February 1, 2021, DHS issued Mr. Pierre an I-94 documenting his admission into the U.S. on parole. Mr. Pierre’s immigration case is still proceeding, but he does not have a final, non-appealable, and legally enforceable order of removal, deportation or exclusion entered in his case. According to ORR’s PL 16-01, Mr. Pierre is eligible for ORR benefits and services. His eligibility date is February 1, 2021, the first date he entered into the community.
Q3: For a Cuban or Haitian entrant who is eligible for ORR benefits and services, what should the eligibility date be if the entrant was placed in the MPP program and subsequently entered into the U.S. without inspection?
A3: The eligibility date would be the date that the Cuban or Haitian was initially determined to be a Cuban or Haitian entrant (e.g., date on the I-862, Notice to Appear). The entrant’s date of entry without inspection would not apply since there is no DHS paperwork to confirm that date.
Example: Ms. Aguilar is a citizen of Cuba. Ms. Aguilar presented herself at a port of entry in Arizona on February 3, 2020. DHS placed Ms. Aguilar in removal proceedings and issued her an I-862, Notice to Appear. DHS also placed Ms. Aguilar in the MPP program and instructed her to remain in Mexico, except for her immigration court hearings when she should present herself at the port of entry. Ms. Aguilar remained in Mexico, except for immigration court hearings, for six months. After an Immigration Judge postponed her case during an immigration court hearing, Ms. Aguilar decided not to return to Mexico, and instead entered into the United States. Ms. Aguilar presented herself to and requested benefits from the local resettlement agency in Arizona. Ms. Aguilar is still in removal proceedings, but she does not have a final, non-appealable, and legally enforceable order of removal, deportation, or exclusion entered in her case. According to ORR’s PL 16-01, Ms. Aguilar is eligible for ORR benefits and services. However, since Ms. Aguilar entered the U.S. without inspection and does not have DHS documentation to validate her entry date into the community, her eligibility date is February 3, 2020, the date on her I-862.
Q4: If a Cuban or Haitian entrant who is eligible for ORR benefits and services has a baby of another nationality, would the baby be eligible for ORR benefits and services?
A4: Yes. According to 45 C.F.R. § 401.12, cash and medical assistance shall be provided to Cuban and Haitian entrants under the same conditions and to the same extent as such assistance is provided under 45 C.F.R. part 400. Therefore, 45 C.F.R. § 400.208, which permits federal funding to be available for family units, which include both refugees and non-refugees, would also apply to Cuban and Haitian entrants. Specifically, if a family unit has only one Cuban or Haitian entrant parent or two Cuban or Haitian entrant parents, the baby or child would be eligible for ORR assistance and services. However, if one parent in the family unit is not a Cuban or Haitian entrant, then the baby or child would not be eligible for ORR assistance and services.
Example 1: Ms. Jean is a citizen of Haiti. Ms. Jean and her baby girl Gaby presented themselves at a port of entry in Florida on September 15, 2020. DHS placed Ms. Jean and Gaby in removal proceedings and issued both of them an I-862, Notice to Appear. According to ORR’s PL 16-01, Ms. Jean is eligible for ORR benefits and services because she is a citizen of Haiti, she is currently in removal proceedings, and she does not have a final, non-appealable, and legally enforceable order of removal, deportation, or exclusion entered in her case. Gaby was born in and is a citizen of Peru. Gaby is also eligible for ORR benefits and services in accordance with 45 C.F.R. §§ 401.12 and 400.208. Ms. Jean and Gaby’s eligibility date is September 15, 2020, the date on their NTA forms.
Example 2: Mr. Garcia is a citizen of Cuba. Mr. Garcia, his wife, Ms. De La Rosa, and their baby Adriana, who was born in Mexico, presented themselves at a port of entry in Arizona on October 2, 2019. DHS placed all three individuals in removal proceedings and issued each of them an I-862, Notice to Appear. According to ORR’s PL 16-01, Mr. Garcia is eligible for ORR benefits and services because he is a citizen of Cuba, he is currently in removal proceedings, and he does not have a final, non-appealable, and legally enforceable order of removal, deportation, or exclusion entered in his case. Mr. Garcia’s eligibility date is October 2, 2019, the date on his NTA. Ms. De La Rosa is from Mexico. She is not eligible for ORR benefits and services. Adriana is also not eligible for ORR benefits and services under 45 C.F.R. §§ 401.12 and 400.208, since one of her parents is not a refugee or a Cuban or Haitian entrant.
Q5: What is the eligibility date for an individual who was granted asylum by an immigration judge (IJ) where DHS waives the right to appeal?
A5: The eligibility date for an individual who was granted asylum by an IJ, where DHS waived the right to appeal, is the date on the IJ’s order.
Example: On April 4, 2018, Ms. Niongou arrived to the U.S. on a student visa. Shortly after arriving, she applied for asylum. On August 13, 2020, an IJ granted Ms. Niongou’s application for asylum. The IJ order noted that DHS waived its right to appeal. According to ORR’s PL 16-01, Ms. Niongou is eligible for ORR benefits and services. Her eligibility date is August 13, 2020.
Q6: What is the eligibility date for an individual who was granted asylum by an immigration judge (IJ) but DHS has not waived the right to appeal in the case?
A6: To answer Q6, footnote 11 of ORR PL 16-01 referenced:
“If DHS has reserved its right to appeal, an Immigration Judge Order will not serve, on its own, as proof of asylee status. If an asylee brings an Immigration Judge Order that shows DHS has reserved its right to appeal, eligibility workers must wait 30 days from the date on the Immigration Judge Order. On or after the 31st day, the eligibility worker will need to call the Executive Office for Immigration Review (EOIR) Automated Case Information Hotline at (800) 898-7180 to find out whether the DHS has appealed the case. (The EOIR reports that it may take up to 5 days after the appeal deadline for the information to be relayed to the case status line.) If the DHS has appealed the case, the individual is not yet an asylee and is not eligible for benefits. If DHS has not appealed the case and 30 days have passed since the date on the immigration Judge Order, the individual is an asylee and is eligible for ORR assistance and services.”
As stated above, the eligibility worker must confirm the disposition of the case by calling the EOIR Automated Case Information Hotline at (800) 898-7180. Where the IJ establishes a deadline for appeals (typically 30 days), or DHS has reserved its right to appeal, but subsequently does not appeal, the eligibility date should be the next business day after the deadline passes.
Example: On May 11, 2018, Mr. Shevchenko arrived to the U.S. on a tourist visa. Shortly after arriving, he applied for asylum. On November 24, 2020, an IJ granted Mr. Shevchenko’s application for asylum. The IJ noted on the order that appeals were due by December 24, 2020. On January 4, 2021, Mr. Shevchenko presented himself to and requested benefits from the local resettlement agency in Illinois. The eligibility worker called the EOIR Automated Case Information Hotline to find out whether DHS appealed the case. DHS did not appeal the case. According to ORR’s PL 16-01, Mr. Shevchenko is eligible for ORR benefits and services. In accordance with ORR’s PL 16-01, footnote 11, his eligibility date is December 28, 2020, since the appeal period ended on December 24, 2020, and the next business day was a holiday.