# ORR State Letter

**\#** 05 - 03 **Date:** March 1, 2005

**TO:** STATE REFUGEE COORDINATORS

NATIONAL VOLUNTARY AGENCIES

OTHER INTERESTED PARTIES

**FROM:** Nguyen Van Hanh, Ph.D.

Director

Office of Refugee Resettlement

**SUBJECT:** Release of Individuals Previously Held in "Indefinite
Detention"

**[Purpose of this Letter]{.underline}**

This State Letter is intended to provide information regarding
eligibility for Office of Refugee Resettlement (ORR) benefits and
services for individuals who are released from "indefinite detention".
This State Letter will supersede the information previously provided in
State Letter #02-03.

**[Background]{.underline}**

State Letter #02-03 discussed the U.S. Supreme Court decision, Zadvydas
v. Davis (1) and the ramifications the ruling had on "indefinite
detainees" or "lifers". The terms "indefinite detainees" or "lifers" are
used to identify non-citizens who have received a final order of removal
after serving a sentence for a criminal conviction, but remain in
federal custody because their home country will not accept their return.
In the Zadvydas decision the Supreme Court held that post-removal
detention should be limited to a reasonable period of time necessary to
facilitate the individual's removal from the United States. Following
the Zadvydas decision, it was unclear as to whether or not the Court's
ruling was applicable to all non-citizens or just to those who had been
admitted to the U.S. This question was answered by the recent Supreme
Court decision, Clark v. Martinez. (2) In Martinez, the Court held that
the post-removal guidelines set forth in the earlier Zadvydas decision
are applicable to all aliens. As a result of this ruling, it is
anticipated that approximately 900 individuals, largely Cuban entrants,
who were previously held in "indefinite detention" will be released from
federal custody.

**[Eligibility for ORR Benefits and Services]{.underline}**

Some individuals released from indefinite detention by federal
immigration authorities may meet the definition of a refugee (3) or of a
Cuban/Haitian entrant. (4) Eligibility guidelines for ORR benefits and
services are not affected by the Zadvydas and Martinez decisions.
Service-providers are encouraged to review State Letter #00-17 "Status
and Documentation Requirements for the Federal Refugee Resettlement
Program."

The date that an individual initially attains the requisite status (5)
shall be used as the commencement date for time-limited ORR benefits and
services. For example, assume a Cuban entrant was initially paroled into
the United States on June 1, 1980 and was incarcerated on December 1,
1982, following a criminal conviction. If this individual was paroled
pursuant to the Martinez decision on March 1, 2005, the date of
eligibility for ORR benefits and services would begin on June 1, 1980.

It is anticipated that many who have been in indefinite detention will
no longer be eligible for time-limited ORR benefits and services, such
as Refugee Cash or Medical Assistance (8 months), or social services (5
years). However many of those applicants will remain eligible for
certain discretionary ORR programs that are not time-limited.

**[Process for Determining Status and Eligibility]{.underline}**

Prior to providing benefits and services, agencies must determine the
applicant's identity, immigration status, date of initial eligibility,
and when applicable, nationality (Cuban/Haitian entrants). ORR
understands that it may be difficult for benefit-granting agencies to
ascertain applicant eligibility for certain populations of indefinite
detainees, such as Cuban/Haitian entrants. Documentation typically used
to determine an applicant's original immigration status may no longer be
available. In some cases, the Systematic Alien Verification for
Entitlements (SAVE) system may be unable to provide the necessary
information and the more detailed G-845 secondary verification procedure
may ultimately be inconclusive.

**If a service-provider is having difficulty determining the status of
an individual who has been released from indefinite detention, please
contact Paul E. Gleason at (202) 401-4604 or pgleason@acf.hhs.gov.**

\(1\) Zadvydas v. Davis, 533 U.S. 678 (2001)

\(2\) Clark v. Martinez, 125 S.Ct. 716 (2005)

\(3\) Refugee Act of 1980, Pub. L. 96-212, as amended (8 U.S.C. 1521)

\(4\) Refugee Education Assistance Act of 1980, title V, Pub. L. 96-422,
as amended (8 U.S.C. 1522 note)

\(5\) See: 45 CFR §400.43(a)(1)-(6); State Letters #01-13, #04-12 and
#00-17

Individuals with the following statuses are eligible for Refugee
Resettlement Program benefits:

1.  Individuals paroled as refugees or asylees under §212(d)(5) of the
    Immigration and Nationality Act (INA)

2.  Refugees admitted under §207 of the INA

3.  Asylees whose status was granted under §208 of the INA

4.  Cuban and Haitian entrants, in accordance with the requirements in
    45 CFR §401.2

    a.  Any individual granted parole status as a Cuban/Haitian Entrant
        (Status Pending) or granted any other special status
        subsequently established under the immigration laws for
        nationals of Cuba or Haiti, regardless of the status of the
        individual at the time assistance or services are provided

    b.  A national of Cuba or Haiti who was paroled into the United
        States and has not acquired any other status under the INA and
        with respect to whom a final, nonappealable, and legally
        enforceable order of removal, deportation or exclusion has not
        been entered

    c.  A national of Cuba or Haiti who is the subject of removal,
        deportation or exclusion proceedings under the INA and with
        respect to whom a final, nonappealable, and legally enforceable
        order of removal, deportation or exclusion has not been entered

    d.  A national of Cuba or Haiti who has an application for asylum
        pending with the INS and with respect to whom a final,
        nonappealable, and legally enforceable order of removal,
        deportation or exclusion has not been entered

5.  Certain Amerasians from Vietnam who are admitted to the U.S. as
    immigrants pursuant to §584 of the Foreign Operations, Export
    Financing, and Related Programs Appropriations Act, 1988 (as
    contained in §101(e) of Public Law 100-202 and amended by the 9^th^
    proviso under Migration and Refugee Assistance in title II of the
    Foreign Operations, Export Financing, and Related Programs
    Appropriations Acts, 1989 (Public Law 100-461 as amended)

6.  Lawful permanent residents, provided the individuals previously held
    one of the statuses identified above (Note: Amerasians are admitted
    as lawful permanent residents. See #5 above.)

7.  Victims of a Severe Form of Trafficking as defined in the
    Trafficking Victims Protection Act of 2000, Pub. L. 106-386, Oct.
    28, 2000 (as reauthorized and amended by the Trafficking Victims
    Protection Reauthorization Act of 2003, Pub. L. 108-193, December
    19, 2003)(22 U.S.C. 7103).