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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.

August 8, 2015 Philip Levin

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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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.