04-22706. Extension of the Designation of Temporary Protected Status for Burundi

AGENCY:

Bureau of Citizenship and Immigration Services, DHS.

ACTION:

Notice.

SUMMARY:

The Temporary Protected Status (TPS) designation for Burundi will expire on November 2, 2004. This notice extends the Secretary of Homeland Security's designation of Burundi for 12 months, until November 2, 2005, and sets forth procedures necessary for nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) with TPS to re-register and to apply for an extension of their employment authorization documentation for the additional 12-month period. Re-registration is limited to persons who registered under the initial designation (which was announced on November 4, 1997) and also timely re-registered under each subsequent extension of the designation; or who registered under the re-designation (which was announced on November 9, 1999) and also timely re-registered under each extension of the re-designation. Certain nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who previously have not applied for TPS may be eligible to apply under the late initial registration provisions.

EFFECTIVE DATES:

The extension of Burundi's TPS designation is effective November 2, 2004, and will remain in effect until November 2, 2005. The 60-day re-registration period begins October 7, 2004 and will remain in effect until December 6, 2004.

FOR FURTHER INFORMATION CONTACT:

Colleen Cook, Residence and Status Services, Office of Programs and Regulations Development, Bureau of Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., Ullico Building, 3rd Floor, Washington, DC 20529, telephone [phone].

SUPPLEMENTARY INFORMATION:

What Authority Does the Secretary of the Department of Homeland Security Have To Extend the Designation of TPS for Burundi?

On March 1, 2003, the functions of the Immigration and Naturalization Service (Service) transferred from the Department of Justice (DOJ) to the Department of Homeland Security (DHS) pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities for administering TPS held by the Service were transferred to the Bureau of Citizenship and Immigration Services (BCIS).

Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state or (part thereof) for TPS. 8 U.S.C. 1254a(b)(1). The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state). 8 U.S.C. 1254a(a)(1).

Section 244(b)(3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the end of the TPS designation or any extension thereof, the conditions in a foreign state designated for TPS to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of TPS. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines that the foreign state no longer meets the conditions for TPS designation, he shall terminate the designation, as provided in section 244(b)(3)(B) of the Act. 8 U.S.C. 1254a(b)(3)(B). Finally, if the Secretary of DHS does not determine that a foreign state (or part thereof) no longer meets the conditions for designation at least 60 days before the designation or extension is due to expire, section 244(b)(3)(C) of the Act provides for an automatic extension of TPS for an additional period of 6 months (or, in the discretion of the Secretary of DHS, a period of 12 or 18 months). 8 U.S.C. 1254a(b)(3)(C).

Why Did the Secretary of DHS Decide To Extend the TPS Designation for Burundi?

On November 4, 1997, the Attorney General published a notice in the Federal Register at 62 FR 59735 designating TPS for Burundi finding that an ongoing armed conflict, and temporary and extraordinary conditions resulting from such conflict, warranted TPS for Burundi. The Attorney General extended the initial designation of TPS for Burundi by notice published in the Federal Register on November 3, 1998 at 63 FR 59334. The Attorney General extended and re-designated TPS for Burundi by notice published in the Federal Register on November 9, 1999 at 64 FR 61123, finding that the ongoing armed conflict, and temporary and extraordinary conditions resulting from such conflict, continued to warrant TPS for Burundi. The re-designation of TPS for Burundi subsequently was extended by the Attorney General three times by Federal Register notice (65 FR 67404; 66 FR 46027; 67 FR 55875).

The Secretary of DHS published a 12-month extension of TPS for Burundi in the Federal Register on September 3, 2003 at 68 FR 52405. This extension expires on November 2, 2004.

Since the date of the most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Burundi. Although some progress has been made in the peace process, the Secretary of DHS has determined that a 12-month extension of TPS is warranted because both the armed conflict and extraordinary and temporary conditions that prompted designation persist. Further, the Secretary finds that it is not contrary to the national interest of the United States to permit nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who otherwise qualify for TPS to remain temporarily in the United States. 8 U.S.C. 1254a(b)(1)(C).

DOS observes that progress in building a long-term peace has been slower than expected. (DOS Recommendation (June 30, 2004)). One rebel group, the Party for the Liberation of the Hutu People-Forces for National Liberation (PALIPEHUTU-FNL), remains outside of the peace process. (BCIS Resource Information Center Report (June 29, 2004) (hereinafter RIC Report (June 29, 2004)). Fighting between the armed forces of Burundi and the PALIPEHUTU-FNL, as well as between the PALIPEHUTU-FNL and the largest former rebel group, the National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD), continues in Bujumbura Rural, the region surrounding the capital. Id.

The transitional period set forth under the Arusha Peace and Reconciliation Agreement signed August 28, 2000, is coming to an end in late 2004. The demobilization of armed groups, not including the 3,000-strong PALIPEHUTU-FNL, is in its early stages at 11 cantonment sites throughout the country. Id. The World Bank estimates that there are some 55,000 combatants to be demobilized. (DOS Recommendation (June 30, 2004)). In May 2004, the United Nations Security Council authorized the United Nations Operation in Burundi (ONUB). ONUB was deployed in June 2004 and is tasked, in part, with helping create the security conditions for the provision of humanitarian assistance, and to carry out the disarmament and demobilization portions of the national Disarmament, Demobilization and Reintegration Programs. Id.

The armed conflict has displaced 140,000-280,000 persons within Burundi and an estimated 800,000 outside Burundi. (DOS Recommendation (June 30,2004); RIC Report (June 29, 2004)). Another 100,000 Burundians are temporarily displaced each month. (RIC Report (June 29, 2004)).

In spite of the reduction of armed conflict, there continue to be reports of human rights violations by all parties to the conflict. Id. An estimated 250,000-300,000 people have been killed in the conflict in Burundi since 1993. Id. Nearly 14 percent of the population (965,000 people) is in need of emergency food and agricultural assistance. Id. The number of people living below the poverty line doubled from 33 percent in 1990 to 67 percent in 2003. Id.

Based upon this review, the Secretary of DHS, after consultation with appropriate government agencies, finds that the conditions that prompted TPS designation for Burundi continue to be met. 8 U.S.C. 1254a(b)(3)(A). The armed conflict is ongoing and there are extraordinary and temporary conditions in Burundi such that it is not safe to return nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) if these aliens meet the statutory and regulatory requirements for TPS. 8 U.S.C. 1254a(b)(1)(A), (C). The Secretary of DHS also finds that permitting nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who are eligible for TPS to remain temporarily in the United States is not contrary to the national interest of the United States. 8 U.S.C. 1254a(b)(1)(C). On the basis of these findings, the Secretary of DHS concludes that the TPS designation for Burundi should be extended for an additional 12-month period. 8 U.S.C. 1254a(b)(3)(C).

If I Currently Have TPS Through the Burundi TPS Designation, Do I Still Re-register for TPS?

Yes. If you already have received TPS benefits through the Burundi TPS designation, your benefits will expire on November 2, 2004. Accordingly, individual TPS beneficiaries must comply with the re-registration requirements described below in order to maintain TPS benefits through November 2, 2005. TPS benefits include temporary protection against removal from the United States, as well as employment authorization, during the TPS designation period and any extension thereof. 8 U.S.C. 1254a(a)(1).

If I Am Currently Registered for TPS, How Do I Re-register for an Extension?

All persons previously granted TPS under the Burundi designation who wish to maintain such status must apply for an extension by filing the following: (1) Form I-821, Application for Temporary Protected Status, without the filing fee; (2) Form I-765, Application for Employment Authorization; (3) two identification photographs (full face frontal 2 inches x 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 and older. (See the chart below to determine whether you must submit the one hundred and seventy-five dollar ($175) filing fee with Form I-765.) All applicants for TPS benefits, including those applying for re-registration need to be re-fingerprinted and thus need to pay the seventy dollar ($70) biometric services fee.

An application submitted without the required fee and/or photos will be returned to the applicant. Submit the completed forms and applicable fee, if any, to the BCIS District Office having jurisdiction over your place of residence during the 60-day re-registration period that begins October 7, 2004 and ends December 6, 2004. An interim employment authorization document will not be issued unless the Form I-765, as part of the TPS registration package, has been pending with BCIS more than 90 days after all requested initial evidence has been received, including collection of the applicant's fingerprints at an Application Support Center (ASC). See 8 CFR 103.2(b)(10)(ii) and 8 CFR 274a.13(d).

If:	Then:
You are applying for employment authorization until November 2, 2005	You must complete and file the Form I-765, Application for Employment Authorization, with the $175.
You already have employment authorization or do not require employment authorization	You must complete and file Form I-765 with no fee.1
You are applying for employment authorization and are requesting a fee waiver	You must complete and file: (1) Form I-765 and (2) a fee waiver request and affidavit (and any other information) in accordance with 8 CFR 244.20.
1 An applicant who does not seek employment authorization documentation does not need to submit the $175 fee, but must still complete and submit Form I-765 for data gathering purposes.

How Does an Application for TPS Affect My Application for Asylum or Other Immigration Benefits?

An application for TPS does not affect an application for asylum or any other immigration benefit. Denial of an application for asylum or any other immigration benefit does not affect an applicant's TPS eligibility, although the grounds for denying one form of relief may also be grounds for denying TPS. For example, a person who has been convicted of a particularly serious crime is not eligible for asylum or TPS. 8 U.S.C. 1158(b)(2)(A)(ii); 8 U.S.C. 1254a(c)(2)(B)(ii).

Are Certain Aliens Ineligible for TPS?

Yes. Individuals who do not meet the physical presence and continuous residence requirements as explained earlier in this notice are ineligible for TPS. In addition, there are certain criminal and terrorism related inadmissibility grounds that apply to TPS applicants and would render an alien ineligible for TPS. 8 U.S.C. 1254a (c)(2)(iii). Further, aliens who have been convicted of a felony, or two or more misdemeanors, committed in the United States and aliens who are described in the bars to asylum in Section 208 (b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A), are ineligible for TPS. 8 U.S.C. 1254a (c)(2)(B).

Can I Apply for Another Immigration Benefit While Registered for TPS?

Yes. Registration for TPS does not prevent you from applying for another non-immigrant status or from filing for adjustment of status based on an immigrant petition. 8 U.S.C. 1254a(a)(5). TPS alone, however, does not lead to adjustment of status. See 8 U.S.C. 1254a(e), (f)(1), (h). For the purposes of change of status and adjustment of status, an alien is considered as being in, and maintaining, lawful status as a nonimmigrant during the period in which the alien is granted TPS. 8 U.S.C. 1254a(f)(4).

Does This Extension Allow Nationals of Burundi (or Aliens Having No Nationality Who Last Habitually Resided in Burundi) Who Entered the United States after November 9, 1999, to File for TPS?

No. This is a notice of an extension of TPS, not a notice of re-designation of TPS for Burundi. An extension of TPS does not change the required dates of continuous residence and continuous physical presence in the United States. This extension does not expand TPS availability to those beyond the current TPS eligibility requirements of Burundi. To be eligible for benefits under this extension, nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) must have been continuously physically present and continuously resided in the United States since November 9, 1999, the date of the most recent re-designation of TPS for Burundi.

What Is Late Initial Registration?

Some persons may be eligible for late initial registration under 8 U.S.C. 1254a(c)(1)(A), 8 U.S.C. 1254a(c)(2), and 8 CFR 244.2. To apply for late initial registration an applicant must:

(1) Be a national of Burundi (or alien who has no nationality and who last habitually resided in Burundi);

(2) Have been continuously physically present in the United States since

November 9, 1999;

(3) Have continuously resided in the United States since November 9, 1999; and

(4) Be both admissible as an immigrant, except as provided under section 244(c)(2)(A) of the Act, and not ineligible under section 244(c)(2)(B) of the Act.

Additionally, the applicant must be able to demonstrate that during the registration period for the initial designation (from November 4, 1997 to November 3, 1998), or during the registration period for the re-designation (from November 9, 1999 to November 2, 2000), he or she:

(1) Was a nonimmigrant or had been granted voluntary departure status or any relief from removal;

(2) Had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal or change of status pending or subject to further review or appeal;

(3) Was a parolee or had a pending request for reparole; or

(4) Was the spouse or child of an alien currently eligible to be a TPS registrant.

An applicant for late initial registration must file an application for late registration no later than 60 days after the expiration or termination of the conditions described above. 8 CFR 244.2(g).

What Happens When This Extension of TPS Expires on November 2, 2005?

At least 60 days before this extension of TPS expires on November 2, 2005, the Secretary of DHS will review conditions in Burundi and determine whether the conditions for TPS designation continue to be met at that time, or whether the TPS designation should be terminated. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the Federal Register.

Notice of Extension of Designation of TPS for Burundi

By the authority vested in DHS under sections 244(b)(1)(A), (b)(1)(C), (b)(3)(A), and (b)(3)(C) of the Act, DHS has determined, after consultation with the appropriate government agencies, that the conditions that prompted designation of Burundi for TPS continue to be met. Accordingly, DHS orders as follows:

(1) The designation of Burundi under sections 244(b)(1)(A) and (b)(1)(C) of the Act is extended for an additional 12-month period from November 2, 2004, to November 2, 2005. 8 U.S.C. 1254a(b)(3)(C).

(2) There are approximately 19 nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who have been granted TPS and who are eligible for re-registration.

(3) To maintain TPS, a national of Burundi (or an alien having no nationality who last habitually resided in Burundi) who was granted TPS during the initial designation period or re-designation period must re-register for TPS during the 60-day re-registration period from October 7, 2004 until December 6, 2004.

(4) To re-register, the applicant must file the following: (1) Form I-821, Application for Temporary Protected Status without fee; (2) Form I-765, Application for Employment Authorization with fee if work authorization is requested; (3) two identification photographs (full face frontal 2 inches by 2 inches); and (4) a biometrics fee of seventy dollars ($70) for each applicant age 14 and older. Applications submitted without the required fee and/or photos will be returned to the applicant. If the applicant requests employment authorization, he or she must submit one hundred and seventy-five dollars ($175) or a properly documented fee waiver request, pursuant to 8 CFR 244.20, with the Form I-765. An applicant who does not request employment authorization must nonetheless file Form I-765 along with Form I-821, but is not required to submit the fee for filing Form I-765. Failure to re-register without good cause will result in the withdrawal of TPS. 8 U.S.C. 1254a(c)(3)(C). Some persons who had not previously applied for TPS may be eligible for late initial registration under 8 CFR 244.2.

(5) At least 60 days before this extension terminates on November 2, 2005, the Secretary will review the designation of TPS for Burundi and determine whether the conditions for designation continue to be met. 8 U.S.C. 1254a(b)(3)(A). Notice of that determination, including the basis for the determination, will be published in the Federal Register. Id.

(6) Information concerning the extension of designation of Burundi for TPS will be available at local BCIS offices upon publication of this notice and on the BCIS Web site at http://uscis.gov.

Dated: September 2, 2004.

Tom Ridge,

Secretary of Homeland Security.