“Current Asylum Status” as a Condition Precedent to Adjustment of Status
A Comprehensive Commentary on Wassily v. Bondi; Velasquez Arreaga v. Bondi, 2d Cir., 7 Aug 2025

Introduction

On 7 August 2025 the U.S. Court of Appeals for the Second Circuit issued a consolidated decision in Wassily v. Bondi and Velasquez Arreaga v. Bondi, tackling a question that has divided the circuits and immigration tribunals for years: May a non-citizen whose asylum status has been terminated nevertheless adjust to lawful permanent resident (LPR) status under 8 U.S.C. § 1159(b)?

The issue sits at the intersection of three statutory provisions—§ 1158 (asylum), § 1159 (adjustment of status of refugees & asylees) and § 1182 (grounds of inadmissibility)—and implicates both procedural sequencing in immigration court and the scope of the Attorney General’s humanitarian waiver power. Petitioners Tamer S. Wassily (Egypt) and Byron E. Velasquez Arreaga (Guatemala) had each been granted asylum decades ago, later committed crimes deemed “particularly serious,” lost asylum through termination proceedings, and attempted to salvage legal status by applying for adjustment under § 1159(b).

The Board of Immigration Appeals (BIA) relied on its 2022 precedential decision, Matter of T-C-A-, to hold the petitioners ineligible because they lacked current asylum status. A divided Second Circuit now adopts that textual reading, rejecting arguments grounded in broader statutory purpose and BIA waiver authority. Judge Robinson dissents, aligning with the Fifth Circuit’s contrary view in Siwe v. Holder.

Summary of the Judgment

The majority (Judge Wesley, joined by Judge Park) holds that:

• The phrase “any alien granted asylum” in § 1159(b) refers to a present, continuing status, not merely the historical fact of a past grant.
• Because both petitioners’ asylum had been lawfully terminated for “particularly serious crimes,” they no longer possessed that status and were statutorily ineligible for adjustment to LPR status.
• The court therefore denies both petitions for review.
• In doing so, the panel expressly follows Matter of T-C-A- and the Fourth Circuit’s 2023 decision in Cela v. Garland, rejecting the Fifth Circuit’s 2014 construction in Siwe v. Holder.

Judge Robinson’s dissent emphasizes the statutory structure, the express retention of waiver authority in § 1159(c), and Congress’s demonstrated ability to impose explicit “continuing status” language when it wishes. She concludes that the majority’s reading unnecessarily strips humanitarian discretion and heightens the significance of procedural sequencing in removal cases.

Detailed Analysis

1. Precedents Cited and Their Role

a. Matter of T-C-A-, 28 I&N Dec. 472 (B.I.A. 2022)

• BIA precedent interpreting § 1159(b) to require current asylum status.
• Formed the foundational administrative rationale adopted by DHS litigators and, ultimately, the Second Circuit majority.

b. Cela v. Garland, 75 F.4th 355 (4th Cir. 2023)

• First circuit-level judicial endorsement of T-C-A-.
• Relied on ordinary-meaning canon and the “status” concept mirroring the majority’s reasoning here.

c. Siwe v. Holder, 742 F.3d 603 (5th Cir. 2014)

• Held that termination of asylum does not bar adjustment because § 1159(b) lacks express “current-status” language.
• Provides the backbone for Judge Robinson’s dissent and for split-circuit petitions likely headed to the Supreme Court.

d. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

• Overruled Chevron deference; the majority employs de novo textual analysis rather than deferring to the BIA.
• Signals new era: courts independently “fix the boundaries” of statutory delegations.

e. Other Authorities

• INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) – used for statutory-construction canons.
• Webster’s and Black’s Law Dictionary definitions of “status” – lexical support for present-condition reading.
• 1990 Immigration Act § 104(d) – statutory note on “former asylees” invoked to show that Congress knew how to create an exception where asylum had been terminated.

2. Legal Reasoning of the Court

1. Textual Anchoring: The majority centers on the phrase “status of any alien granted asylum.” Because “status” in immigration law denotes a current legal condition, the court finds it “odd” to say a person maintains the status of being granted asylum after termination. To avoid rendering “status” superfluous, “granted asylum” must describe a continuing state.
2. Statutory Context: The panel compares § 1159(b) with § 1158(c). Section 1158(c) speaks of “[a]sylum granted” in the same present-tense sense and outlines how that grant “may be terminated.” Reading the two sections harmoniously, the court concludes Congress used “granted” consistently across both provisions.
3. Negative-Implication Canon: Where Congress wants to allow adjustment despite lost refugee status, it says so expressly (as in § 1159(a) & (b)(3), “whose admission has not been terminated” / “continues to be a refugee”). The absence of similar language for asylees implies intent to exclude.
4. Statutory Note from 1990 Act: Because Congress carved out a one-time exception for pre-1990 former asylees whose asylum had been terminated, the court infers the default rule is ineligibility once termination occurs.
5. Chevron Afterlife: Following Loper Bright, the court refuses to defer to the BIA and instead announces the “best reading” independently—a noteworthy methodological shift.

3. Impact Assessment

• Uniformity Trend: The decision doubles the number of circuits (2d & 4th) aligning with the BIA’s interpretation, amplifying pressure on the Fifth Circuit (and any other circuits yet to weigh in) or the Supreme Court to resolve the split.
• Case-Sequencing Stakes: Immigration litigators must now prioritize filing for adjustment before DHS moves to terminate asylum, or persuade an IJ to defer termination under Matter of K-A-—a strategic nuance the court expressly preserves.
• Narrowing of Humanitarian Waiver: For non-citizens whose asylum already stands terminated, prosecutorial discretion or private bills may be the only remedial paths; § 1159(c) waiver cannot even be reached.
• Agency-Court Dynamics: Demonstrates post-Loper Bright reality: BIA holdings carry persuasive force but no automatic deference, demanding more rigorous statutory parsing in federal courts.
• Criminal-Alien Policy: Confirms congressional/administrative policy that “particularly serious crime” offenders should be presumptively removed absent unusual procedural timing—a win for DHS enforcement priorities.

Complex Concepts Simplified

Asylum vs. Refugee Admission

“Refugee” status (under § 1157) is granted overseas; “Asylum” (under § 1158) is granted to someone who is already in the U.S.. Both confer protection from removal but have different termination rules.

Adjustment of Status (§ 1159)

A path that changes a non-citizen’s temporary humanitarian protection into permanent residence (a “Green Card”). For asylees, this is under § 1159(b).

Particularly Serious Crime

A statutory label, broader than “aggravated felony,” that bars various forms of humanitarian relief and triggers asylum termination if the person poses a danger to the community.

Grounds of Inadmissibility (§ 1182)

A comprehensive list of reasons (health, crime, national security, etc.) for which DHS can deny entry or status. Section 1159(c) permits selective waiver of many—but not all—of these grounds when adjusting refugees/asylees.

Statutory Note

Short “notes” following a Code section capture uncodified provisions of public laws. They hold equal statutory weight and can clarify or temporarily modify how the main text applies (as in the 1990 Act note on “former asylees”).

Conclusion

The Second Circuit’s decision cements a textualist, status-centric approach: an applicant for LPR status under 8 U.S.C. § 1159(b) must still possess asylum status at the moment of adjudication. The majority’s analysis—fortified by Loper Bright’s rejection of Chevron deference—places interpretive heft on plain meaning and intra-statutory symmetry. Conversely, the dissent underscores systemic consequences, warning that humanitarian discretion and family-unity objectives are diminished when timing alone forecloses relief.

As the circuit split deepens, the Supreme Court may soon be called upon to resolve the divergent readings of “any alien granted asylum.” Until then, practitioners must advise asylee clients that once DHS initiates termination, the adjustment window may slam shut—unless they can persuade an Immigration Judge to defer termination long enough to file and adjudicate an adjustment application. Policymakers, meanwhile, may revisit whether categorical bars driven by crime-based termination best reflect modern humanitarian and public-safety priorities.

Prepared by: [Your Name], Esq. – Specialist in U.S. Immigration & Administrative Law