BIA HOLDS THAT NEITHER THE IJ NOR THE BOARD HAS JURISDICTION TO REVIEW WHETHER ASYLUM-ONLY PROCEEDINGS WERE IMPROVIDENTLY INSTITUTED VIA REFERRAL UNDER THE VISA WAIVER PROGRAM. BIA ALSO HOLDS THAT UNLESS THE IJ ENSURES DHS ADDVISES AN APPLICANT FOR RELIEF OF THE NEED TO PROVIDE BIOMETRICS AND FURNISHES THE APPROPRIATE INSTRUCTIONS; INFORMS HIM OR HER OF THE DEADLINE FOR COMPLIANCE; AND, WARNS THE APPLICANT OF THE CONSEQUENCES OF NONCOMPLIANCE, THE JUDGE CANNOT DEEM THE APPLICATION ABANDONED FOR FAILURE TO COMPLY WITH THE BIOMETRICS REQUIREMENT.
On August 5, 2015, the Board of Immigration Appeals (BIA or Board) sustained in part, dismissed in part, and remanded to the Immigration Judge (IJ) an appeal by an asylum applicant who entered the U.S. under the Visa Waiver Program (VWP), expressed a fear of returning home and was referred to the IJ for asylum-only proceedings under 8 C.F.R. § 217.4. At his master calendar hearing, respondent argued that he was improperly placed into asylum-only proceedings but the IJ directed him to file his asylum application, which he did at a subsequent master. However, the applicant only had his fingerprints taken 4 days prior to the individual hearing, where the IJ consequently found he had abandoned his applications for relief. On appeal, the BIA, citing to INA § 217(b); 8 C.F.R. §§ 208.2(c), (3)(i), 217.4; and, Matter of Kanagasundram, 22 I & N Dec. 963 (BIA 1999) found that where a VWP traveler is found to be inadmissible or is admitted under the VWP and is determined to be deportable, he or she will be removed unless there is a request for asylum or related relief, in which case the matter is referred to an IJ for a determination of eligibility on such applications. Because these proceedings “present a significantly limited scope of issues”, the Board held that neither the IJ nor the BIA has jurisdiction to consider whether they were improvidently instituted via referral from the VWP.
Regarding the challenge to the IJ’s determination that respondent abandoned his application for asylum, withholding of removal and CAT protection, the BIA looked to both 8 C.F.R. § 1003.47(d) (DHS required to notify applicant of need to provide biometrics and other biographical information, along with biometrics notice and instructions; IJ to specify when notice is received and consequences of failure to comply therewith “within the time allowed”) and the interim Operation Policies and Procedures Memorandum issued by the Office of the Chief Immigration Judge (when applicant states intent to file for covered relief DHS must provide biometrics instructions and request reasonable amount of time for respondent to comply and complete security checks; IJ must inform applicant of provision of instructions, the date they must be complied with and that failure to comply without good cause can lead to dismissal of the application as abandoned). The Board concluded that, considering these provisions together, so that an asylum applicant receives proper notice of the biometrics requirements, the IJ must: 1) ensure DHS advises the applicant of the need for biometrics and furnishes the instructions; 2) inform the applicant of the deadline for compliance; and, 3) warn the applicant of the consequences of noncompliance, including that the application may be deemed abandoned and dismissed. As the record did not reflect that respondent received the biometrics notification advisories, a deadline for submitting them, or a warning regarding the consequence of failure to comply, the IJ’s ruling that the applications had been abandoned was found to be improper. Matter of D-M-C-P-, 26 I & N Dec. 644 (BIA 2015)
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