[Federal Register: January 31, 2005 (Volume 70, Number 19)]
[Rules and Regulations]
[Page 4743-4754]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja05-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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[[Page 4743]]
DEPARTMENT OF JUSTICE
8 CFR Parts 1003 and 1208
[EOIR No. 140I; AG Order No. 2755-2005]
RIN 1125-AA44
Background and Security Investigations in Proceedings Before
Immigration Judges and the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends Department regulations governing removal and
other proceedings before immigration judges and the Board of
Immigration Appeals when a respondent has applied for particular forms
of immigration relief allowing the alien to remain in the United States
(including, but not limited to, asylum, adjustment of status to that of
a lawful permanent resident, cancellation of removal, and withholding
of removal), in order to ensure that the necessary identity, law
enforcement, and security investigations are promptly initiated and
have been completed by the Department of Homeland Security prior to the
granting of such relief.
DATES: Effective date: This rule is effective April 1, 2005.
Comment date: Written comments must be submitted on or before April
1, 2005.
Request for Comments: Please submit written comments to MaryBeth
Keller, General Counsel, Executive Office for Immigration Review
(EOIR), 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041.
To ensure proper handling, please reference RIN No. 1125-AA44 on your
correspondence. You may view an electronic version of this rule at
http://www.regulations.gov You may also comment via the Internet to EOIR at eoir.regs@usdoj.gov or by using the http://www.regulations.gov.
comment form for this regulation. When submitting comments
electronically, you must include RIN No. 1125-AA44 in the subject box.
Comments are available for public inspection at the above address by
calling (703) 305-0470 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: MaryBeth Keller, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION: An immigration judge or the Board of
Immigration Appeals (Board) may grant relief from removal under a
variety of provisions of the Immigration and Nationality Act (Act).
Among the common forms of relief are adjustment of status to lawful
permanent resident (LPR) status, asylum, waivers of inadmissibility,
cancellation of removal, withholding of removal, and deferral of
removal under the Convention Against Torture.\1\ In considering an
application for relief the applicant bears the burden of establishing
his or her eligibility for the relief sought and, for discretionary
forms of relief, that he or she merits a favorable exercise of
discretion. For almost all forms of relief from removal, it must be
established that the applicant has not been convicted of particular
classes of crimes, and that he or she is not otherwise inadmissible or
ineligible under the relevant standards.
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\1\ Withholding of removal under 241(b)(3) of the Act and CAT
deferral are not forms of ``relief from removal'' per se, but
instead are restrictions on or protection from removal of an alien
to a country where he or she would be threatened or tortured. In
this SUPPLEMENTARY INFORMATION, the Department uses the term
``relief from removal,'' and appropriate variations, to include
withholding and CAT deferral, for the ease of the reader.
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The Department of Homeland Security (DHS) conducts a variety of
identification, law enforcement, and security investigations and
examinations to determine whether an alien in proceedings has been
convicted of any disqualifying crime, poses a national security threat
to the United States, or is subject to other investigations. Since
September 11, 2001, DHS and its predecessor agencies have expanded the
scope of identity, law enforcement, and security investigations and
examinations before granting of immigration status to aliens. Moreover,
because circumstances are subject to change over time, DHS may be
required to update the results of its background investigations if the
current determinations have expired. As the National Commission on
Terrorist Attacks upon the United States (``9/11 Commission'') has
emphasized, ``[t]he challenge for national security in an age of
terrorism is to prevent the very few people who may pose overwhelming
risks from entering or remaining in the United States undetected.'' The
9/11 Commission Report, ed. W.W. Norton & Co. (2004), at 383. The
Attorney General agrees with the Secretary's determination that the
expanded background and security checks on aliens who seek to come to
or remain in this country are essential to meet this challenge,
regardless of whether the alien applies affirmatively with DHS or seeks
immigration relief during removal proceedings within EOIR's
jurisdiction.
In general, these investigations and examinations can be completed
in a timely fashion so as to permit the adjudication of adjustment and
other applications before the immigration judges without delay. Because
DHS initiates the immigration proceedings, in most cases DHS has ample
time to undertake the necessary investigations if it has obtained the
alien's biometric \2\ and other biographical information \3\ prior to
or at the time of filing of the Notice to Appear (NTA). In the instance
when an NTA has been issued without biometrics and other biographical
information having been taken at all (such as when DHS's U.S.
Citizenship and Immigration Services (USCIS) issues the NTA upon denial
of a petition or application for change of nonimmigrant status at a
service center
[[Page 4744]]
or when an applicant fails to appear for a scheduled biometrics
fingerprinting appointment with USCIS), this rule contemplates that DHS
will be given the opportunity to obtain respondent's biometrics and
other biographical information from the respondent before a merits
hearing. In addition, particularly when substantial time may have
elapsed during the pendency of immigration proceedings, the validity of
a fingerprint response received by USCIS may have elapsed and, under
current arrangements with outside law enforcement and investigative
agencies, fingerprints may need to be taken again by DHS to complete
updated background checks.
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\2\ Biometrics currently include digital fingerprints,
photographs, signature, and in the future may include other digital
technology that can assist in determining an individual's identity
and conducting background investigations.
\3\ Other biographical information refers to data which may
include such items as an individual's name; address; place of birth;
date of birth; marital status; social security number (if any);
alien registration number (if any); prior employment authorization
(if any); date of last entry into the United States; place of last
entry; manner of last entry; current immigration status and
eligibility category. Currently, such biographical information is
required by the DHS Form I-765, Application for Employment
Authorization, or other DHS or EOIR forms. In the future, other
information may be required by DHS in order to complete identity,
law enforcement, or security investigations or examinations.
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When an alien in proceedings files an application for relief, such
as an application for asylum or adjustment of status, DHS is on notice
that further inquiry into criminal and national security records may be
required. Because the immigration judges schedule in advance the date
of the hearing on the merits of the alien's application, a time that is
ascertainable from the hearing notices served on the government
counsel, DHS is routinely on notice of the date by which these
inquiries, investigations and examinations must be completed in time
for a final decision by the immigration judge on the pending
applications for relief. When an alien files an application in
immigration proceedings for relief from removal, the immigration judge
ordinarily will be able to consider the time that DHS indicates it will
likely require to conduct the background and security inquiries and
investigations before setting the date for the merits hearing. The
immigration judge also can take into consideration that DHS's ability
to obtain full results from the law enforcement and intelligence
agencies that are not within its control may require additional time
beyond that initially indicated by the government.
There are, as noted, occasions where an investigation being
conducted or updated by DHS requires additional time. Historically, DHS
has had the ability to file a motion for a continuance under the rules
applicable to proceedings before immigration judges, 8 CFR 1003.29, but
that general provision leaves numerous questions unanswered in the
complicated area of criminal history checks and national security
investigations. The current regulations are also unclear as to the
scope of an immigration judge's authority to act to grant relief in
situations where a background investigation is ongoing.
The national security requires that immigration judges or the Board
should not grant applications for adjustment to LPR status, asylum, or
other forms of immigration relief without being advised by DHS of the
results of the investigations, including criminal and intelligence
indices checks. The Department and DHS recognize the need for
coordination of processes so as to permit these appropriate identity,
background, and security investigations to be completed by DHS prior to
the granting of immigration relief that is within the jurisdiction of
the immigration judges and the Board. This rule provides a means to
ensure that the immigration judges and the Board will not grant relief
before DHS has completed its investigations.
The Department and DHS also recognize that the need to protect
national security and public safety must be balanced against the desire
for law abiding aliens to have their requests for immigration relief
adjudicated in a prompt and timely fashion. However, there have been
instances when aliens in removal proceedings were granted some form of
immigration relief but USCIS did not automatically and immediately
learn about their need for an immigration document. Furthermore, DHS
determined that in some cases the law enforcement checks were not
completed prior to the grant. Since USCIS must run background checks on
any alien who will receive an immigration document reflecting the
alien's immigration status or authorization to work, this process
creates a waiting period for aliens that in most cases could have been
avoided. This process also is not acceptable to the grantees, some of
whom have been named or represented in litigation against the
government complaining of delays. Recent cases include Santillan v.
Ashcroft, No 04-2686 (N.D. Cal.) (requesting relief for proposed
nationwide class); Padilla v. Ridge, No. M-03-126 (S.D. Tex.)
(requesting relief for proposed class of aliens in three districts of
Texas). The Department and DHS have determined that the best method for
avoiding these delays is to run law enforcement checks prior to
immigration relief being granted. Further, these checks should be
conducted in advance of any scheduled merits hearing before the
immigration judge wherever possible.
This rule enables and requires immigration judges to cooperate with
DHS in: (1) Instructing aliens on how to comply with biometric
processing requirements for law enforcement checks; (2) considering
information resulting from law enforcement checks; and (3) instructing
aliens who have been granted some form of immigration relief regarding
the procedures by which to obtain documents from DHS. This rule also
creates a more efficient process, saving time for the immigration
judge, respondent, and others, by implementing a process that enables
the Department to adjust its hearing calendars when the required law
enforcement checks have not been completed prior to a scheduled
hearing. This improvement to the system is immediately necessary to
reduce the time that grantees must wait to receive their documents
after the completion of immigration proceedings, and decrease the
chances that an alien who is a danger to public safety or national
security will be granted relief from removal.
Systems Utilized To Conduct Identity, Background and Security Checks
There is no need for this rule to specify the exact types of
background and security checks that DHS may conduct with respect to
aliens in proceedings. DHS and other agencies are actively involved in
streamlining and enhancing the systems of information that contain
information on terrorist and other serious criminal threats.
Generally, however, the majority of required checks are returned in
a matter of days or weeks. Yet there are instances where another agency
may inform DHS that a check reveals some sort of positive ``indicia''
on an individual, and it may take a longer period of time for those
agencies to complete their investigations and convey this information
to DHS for a determination of relevancy under the immigration laws.
Additional time may be required if it is necessary to obtain additional
fingerprints. In other instances, the ``indicia'' may require that DHS
obtain or provide notice to the individual that he or she must obtain
and present DHS with all records of court proceedings. A longer period
of time may also be necessary to complete background checks where
individuals have common names that may require individualized reviews
of the records of all similarly named individuals or where there are
variations in the spelling of names due to translation discrepancies.
Finally, there may be demands on DHS to conduct a disproportionate
number of investigations in a short time based upon current events,
such as an emergent mass migration, that may have an impact on various
agencies' capacity to conduct identity, background and security
investigations in a timely manner.
[[Page 4745]]
Requirement for Aliens in Proceedings To Provide Biometrics and Other
Biographical Information
The Act imposes a general obligation on aliens who are applicants
for admission to demonstrate clearly and beyond doubt that they are
entitled to admission and are not inadmissible under section 212(a) of
the Act (8 U.S.C. 1182(a)). Almost all of the various forms of relief
from removal require the applicant to demonstrate either that he or she
is admissible under applicable legal standards, or that he or she has
not been convicted of certain disqualifying offenses or engaged in
other specified conduct. The results of the DHS background and security
checks are obviously quite relevant to a determination of an alien's
admissibility or eligibility with respect to the requested immigration
relief. Moreover, an applicant for any form of immigration relief in
proceedings bears the burdens of proof--i.e., the burden of proceeding
and the burden of persuasion--in demonstrating that he or she is
eligible for such relief and, if relevant, that he or she merits a
favorable exercise of discretion for the granting of such relief. 8 CFR
1240.8(d); see, e.g., Matter of Lennon, 15 I&N Dec. 9, 16 (BIA 1974),
remanded on other grounds sub nom. Lennon v. INS, 527 F.2d 187 (2d Cir.
1975) (adjustment of status to that of a lawful permanent resident).
For adjustment of status, section 245(a) of the Act requires that
an applicant meet three conditions in addition to a favorable exercise
of discretion: (1) He or she must make an application for adjustment of
status; (2) he or she must be eligible to receive a visa and be
admissible for permanent residence; and (3) an immigrant visa must be
immediately available at the time of application. Thus, it is first and
foremost the applicant's responsibility to file a complete application
for adjustment of status (DHS Form I-485) and submit the required
supporting documentation (including the respondent's biometric and
other biographical information) to establish eligibility to receive a
visa and admissibility to the United States. Other forms of relief such
as asylum, withholding of removal, or cancellation of removal also
place the burden of proof on the alien, and require the alien to file
the proper application for relief and submit all of the necessary
supporting documentation in the proceedings before the immigration
judge, as provided in 8 CFR 1240.8(d).\4\
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\4\ For asylum applicants, the current regulations at 8 CFR
1208.10 and the instructions to the Form I-589, Application for
Asylum and for Withholding of Removal, already provide notice that
an individual and any included family members 14 years of age and
older cannot be granted asylum until the required identity,
background, and security checks have been conducted. The regulations
at 8 CFR 1208.10 and the instructions to the Form I-589 at Part 1,
IX, page 9, clearly notify asylum applicants before an immigration
judge that failure to comply with fingerprint and other biometrics
requirements will make the applicant ineligible for asylum and may
delay eligibility for work authorization. The regulations at 8 CFR
1208.3 (Form of application) and the Form I-589 Instructions, Part
1, sections V, VI, VII, X, XI and XII at pages 5 through 10, also
specify what constitutes a complete application for asylum and for
withholding of removal or protection under the Convention Against
Torture. The results of the background and security checks are
relevant for an alien's eligibility for withholding of removal, and
for determining whether an alien seeking protection under the
Convention Against Torture is eligible only for deferral of removal
under 8 CFR 1208.17.
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The rule therefore specifically provides that applicants for
immigration relief in proceedings before the immigration judges have
the obligation to comply with applicable requirements to provide
biometrics and other biographical information.
For aliens who are not in proceedings and who seek to apply for
asylum or for adjustment of status or some other status, the alien
files the appropriate form directly with USCIS, and USCIS then informs
the alien when and where the alien (and any covered family members)
should go to provide biometrics and other biographical information.
Fingerprints normally are taken by USCIS at an Application Support
Center (ASC).
However, a different approach is needed where the respondent in
proceedings applies for asylum, adjustment of status, or other forms of
relief that are available in removal proceedings, such as cancellation
or withholding of removal. In these instances, where the immigration
proceedings have already begun, respondents file the appropriate
application forms and related documents in the proceedings before the
immigration judge, rather than with USCIS.
At a master calendar hearing or other hearing at which the
immigration judge addresses issues relating to whether a respondent is
removable, the immigration judge normally reviews with the respondent
possible forms of relief from removal, including asylum, adjustment of
status, cancellation of removal, or other forms of relief or
protection, if the respondent is potentially eligible. 8 CFR 1240.11.
At that hearing, or at a subsequent master hearing, the immigration
judge normally establishes a date by which the application must be
filed with the immigration judge and served on DHS, and a later date
for a hearing at which the immigration judge will consider the
application.
This rule provides that applications for adjustment of status,
cancellation or withholding of removal, or other forms of relief
covered by this rule will be deemed to be abandoned for adjudication
if, after notice of the requirement to provide biometrics or other
biographical information to DHS, the applicant fails without good cause
to provide the necessary biometrics and other biographical information
to DHS by the date specified by the immigration judge. As noted, in
many cases, the alien will already have provided biometrics or other
biographical information in connection with the removal proceedings
prior to the master calendar hearing or other hearing at which the
alien indicates an intention to seek immigration relief. However, in
those instances where the respondent has not yet provided biometrics or
other biographical information to enable DHS to conduct those checks or
where DHS notifies the immigration judge or the Board that checks have
expired and need to be updated, it is clear that the application cannot
be granted by the immigration judge or the Board.
In those instances, until the respondent and any covered family
members appear at the appropriate location to provide DHS their
biometrics or other biographical information, the application cannot be
granted or may be found to be abandoned if there is a failure to comply
without good cause by the date specified by the immigration judge.
Thereafter, once the biometric and other biographical information is
provided as required, DHS should be allowed an adequate time to
complete the appropriate identity, law enforcement, and security
investigations before the application is scheduled for decision by the
immigration judge.
This approach clearly places the responsibility for taking the
initiative to provide biometrics or other biographical information in a
timely manner on the respondent who is seeking relief, consistent with
the respondent's burdens of proceeding and persuasion. By requiring the
respondent to provide biometrics or other biographical information to
DHS in a timely manner or risk a finding that the application has been
abandoned, this rule will facilitate the prompt adjudication of cases.
In general, aliens in proceedings who are obligated to provide
biometrics or other biographical information can do
[[Page 4746]]
so by making appropriate arrangements with local DHS offices. In many
cases, this will involve visiting an ASC, the same place to which an
applicant would be directed if he or she had filed an affirmative
application for asylum or adjustment of status directly with USCIS.
Upon the applicant's filing of an application for relief with the
immigration court or USCIS's referral of the application to an
immigration judge, unless DHS informs the immigration judge that new
biometrics are not required, DHS will provide the alien with a standard
biometrics appointment notice prepared by an appropriate DHS office.
USCIS District Directors and Immigration and Customs Enforcement
Counsel, in consultation with the Office of the Chief Immigration
Judge, will develop scheduling procedures and standardized appointment
notices for each location. The DHS fingerprint notice will be hand-
delivered to the alien by DHS and the notice may be used for multiple
family members, but the notice must contain at least the alien
registration number, receipt number (if any), name, and the form number
pertaining to the relief being sought for each person listed. Locally
established procedures will ensure that applicants for relief from
removal receive biometrics services in a time period compatible with
DHS resources and the scheduled immigration proceedings. The
immigration judge shall specify for the record when the respondent
receives the notice and the consequences for failing to comply with
biometrics processing. On the other hand, aliens who are currently in
detention--either immigration custody under section 236 of the Act (or
other provision of law) during the pendency of the removal proceedings,
or in a federal, state, or local correctional facility based on a
criminal conviction--will not have such flexibility. In the case of any
detained alien, DHS will make the necessary arrangements to obtain
biometrics and other biographical information if that has not already
been collected in a manner that can be re-used by DHS for updating
checks.
Failure To File a Complete Application for Relief in a Timely Fashion
The rule also codifies the existing Board precedent that failure to
file or to complete an application in a timely fashion constitutes
abandonment of the application. Where an immigration judge has set a
deadline for filing an application for relief, the respondent has
already in fact appeared at a hearing. His statutory right to be
present has been fulfilled. The Board has long held that applications
for relief under the Act are properly denied as abandoned when the
alien fails to timely file them. See Matter of Jean, 17 I&N Dec. 100
(BIA 1979) (asylum), modified, Matter of R-R-, 20 I&N Dec. 547 (BIA
1992); Matter of Jaliawala, 14 I&N Dec. 664 (BIA 1974) (adjustment of
status); Matter of Pearson, 13 I&N Dec. 152 (BIA 1969) (visa petition);
see also Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) (exclusion
proceedings). Accordingly, the rule specifies that the immigration
judge shall issue an appropriate order denying or pretermitting the
requested relief if the application is not timely filed or is not
completed in a timely manner.
With respect to a failure to provide biometrics or other
biographical information, the rule allows an immigration judge to
excuse the failure to comply with these requirements within the time
allowed if the applicant demonstrates that such failure was the result
of good cause. This language is taken from the current provision in 8
CFR 1208.10 pertaining to applications for asylum and is consistent
with the general obligation placed on the alien to satisfy this
requirement. For detained aliens, though, it is the obligation of DHS
to obtain the necessary biometrics and other biographical information.
Covered Forms of Immigration Relief
The Department notes that current law prohibits the immigration
judges from granting asylum to any alien prior to the completion of
identity, law enforcement, and security investigations. Section
208(d)(5)(A)(i) of the Act (8 U.S.C. 1158(d)(5)(A)(i)), expressly
provides that
asylum cannot be granted until the identity of the applicant has
been checked against all appropriate records or databases maintained
by the Attorney General [or the Secretary of Homeland Security] and
by the Secretary of State, including the Automated Visa Lookout
System, to determine any grounds on which the alien may be
inadmissible to or deportable from the United States, or ineligible
to apply for or be granted asylum.
Since the applicants have the obligation to submit a complete
application and supporting documentation for the requested immigration
relief, as discussed above, and the results of the DHS background and
security checks are obviously of great relevance in evaluating issues
relating to admissibility, qualifications, and discretion, the Attorney
General has concluded that it is sound public policy to impose the
procedural requirements of this rule relating to submission of
biometric and other biographical information and completion of the DHS
background and security checks prior to the granting of adjustment to
LPR status, cancellation or withholding of removal, or other forms of
relief permitting the alien to remain in the United States. Granting
permanent resident status is an important step with substantial
benefits that has special procedures for rescinding such status under
section 246 of the Act (8 U.S.C. 1256). Other forms of relief allow the
alien to remain legally in the United States and should not be granted,
as a matter of sound public policy, until the applicant has complied
with applicable requirements relating to biometrics and other
biographical information, and until DHS has had the opportunity to
complete the necessary identity, law enforcement, and security
investigations that are relevant to a determination of whether the
alien should be granted the requested immigration relief.
Accordingly, the rule provides a procedural requirement that the
immigration judges or the Board may not grant any form of immigration
relief allowing the alien to reside in the United States without
ensuring that DHS has completed the identification, law enforcement,
and security investigations and examinations first. This will ensure
that the results of such background checks or other investigations have
been reported to and considered by the immigration judges or the Board
before the issuance of any order granting an alien's application for
immigration relief that permits him or her to remain in the United
States. The rule does not expand the circumstances in which the
immigration judges or the Board have authority to grant relief, but is
applicable in any case to the extent they do have such authority.
Section 1003.47(b) identifies the principal forms of immigration relief
covered by this rule, including:
Asylum under section 208 of the Act;
Adjustment of status to that of an LPR under section 209
or 245 of the Act (8 U.S.C. 1159, 1255) or any other provision of law;
\5\
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\5\ Section 245 of the Act is the principal provision relating
to adjustment of status, but section 209 provides the exclusive
procedure for adjustment of status for refugees and asylees. See 8
CFR 1209.1, 1209.2; Matter of Jean, 23 I&N Dec. 373, 376 n.7, 381
(A.G. 2002). Among the other laws relating to adjustment of status
are the following, although the immigration judges do not exercise
authority at present over all of them: Cuban Adjustment Act, Public
Law 89-732, Sec. Sec. 1-5, 80 Stat. 1161 et seq. (Nov. 2, 1966);
Indochinese Adjustment Act, Public Law 95-145, Sec. Sec. 101-107,
91 Stat. 122 (Oct. 28, 1977); Virgin Islands Adjustment Act, Public
Law 97-271, 76 Stat. 1157 (Sept. 30, 1982); Soviet and Indochinese
Parolees Adjustment Act, Public Law 101-167, Sec. 599E, 101 Stat.
1263 (Nov. 21, 1989); H-1 Nonimmigrant Nurses Adjustment Act, Public
Law 101-238, Sec. 2, 103 Stat. 2099 (Dec. 15, 1989); Chinese
Student Protection Act of 1992, Public Law 102-404, 106 Stat. 1969
(Oct. 9, 1992); Polish and Hungarian Parolees Adjustment Act of,
Public Law 104-208, Div. C, Sec. 646, 110 Stat. 3009-709 (Sept. 30,
1996); Nicaraguan Adjustment and Central American Relief Act
(NACARA), Public Law 105-100, Sec. 202, 11 Stat. 2193 (Nov. 19,
1997); Haitian Refugee Immigration Fairness Act (HRIFA), Public Law
105-277, Div. A, Sec. 101(h) [Title IX, Sec. 902], 112 Stat. 2681-
538 (Oct. 21, 1998); Syrian Adjustment Act, Public Law 106-378, 114
Stat. 1442 (Oct. 27, 2000); and Indochinese Parolees Adjustment Act,
Public Law 106-429, Sec. 101(a), 114 Stat. 1900 (Nov. 6, 2000).
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[[Page 4747]]
Conditional permanent resident status or the removal of
the conditional basis of such status under section 216 or 216A of the
Act (8 U.S.C. 1186a, 1186b);
Waivers of inadmissibility or deportability under sections
209(c), 212, or 237 of the Act (8 U.S.C. 1159, 1182, 1227) or other
provisions of law;
Cancellation of removal under section 240A of the Act (8
U.S.C. 1229b), suspension of deportation under former section 244 of
the Act, relief from removal under former section 212(c) of the Act, or
any similar form of relief; \6\
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\6\ This includes special rule cancellation of removal under
NACARA Sec. 203.
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Withholding of removal under section 241(b)(3) of the Act
(8 U.S.C. 1231) or withholding or deferral of removal under the
Convention Against Torture;
Registry under section 249 of the Act (8 U.S.C. 1259); and
Conditional grants relating to the above, such as for
applications seeking asylum pursuant to section 207(a)(5) of the Act or
cancellation of removal in light of section 240A(e) of the Act.
In addition to those provisions specifically listed, this rule
covers any other form of relief granted by the immigration judges or
the Board that allows the alien to remain in the United States.
Allowing Time for DHS To Complete Background Checks and Investigations
The Department wishes to avoid unnecessary delays that may
frustrate the timely adjudication of any case simply because of a
failure to conduct or complete the investigations or indices checks.
This rule provides a means to ensure that DHS will have an appropriate
opportunity to conduct the necessary investigations including an
alien's submission of his or her biometric or other biographical
information, before the application is granted by the immigration
judge. This rule does not impose a unilateral definition of what the
investigations and examinations will constitute in every case; it
remains the province of DHS to determine what identity, law
enforcement, and security investigations and indices checks are
required (this may vary over time and from case to case) and when those
investigations and indices checks are complete. After providing a
reasonable period of time for DHS to initiate the necessary
investigations and to await the results from other law enforcement and
intelligence agencies, as necessary, the immigration judge will then be
able to address the requested forms of immigration relief on the
merits. The Department recognizes that DHS cannot always know the exact
period of time that will be required to complete all checks and
investigations because the information often is within the control of
non-DHS agencies, such as the Federal Bureau of Investigation or the
Central Intelligence Agency. The national security of the country and
public safety of its residents depend on swift responses, as does the
efficient administration of the immigration laws.
If, for any reason, DHS is not ready to present the results of its
identity, law enforcement, and security investigations by the time of
the scheduled final hearing, then it will be up to DHS to make a
request for a continuance (in advance of the hearing if possible) and
to explain, to the extent practical, the time needed for completion. In
some cases for example, where DHS is conducting an ongoing
investigation of the respondent's identity or issues raised by other
law enforcement agencies who may themselves have pending
investigations, or indicates that a United States Attorney is
presenting evidence to a grand jury concerning the respondent, multiple
continuances would be justified by the ongoing criminal process into
which neither DHS nor the immigration judge can intrude. This process
contemplates that, if DHS indicates that it is unable to complete the
identity, law enforcement, or security investigation because of a
pending investigation of the respondent--either by DHS or by any other
agency--then DHS will be able to obtain a further continuance to
complete the pending investigation.
The Attorney General has delegated authority to immigration judges
in the past to close cases administratively in certain contexts,
particularly in those cases where DHS, rather than the immigration
judge, has substantive authority over a particular form of relief. See
8 CFR 1240.62, 1245.13, 1245.15, 1245.21. However, the regulations do
not authorize the immigration judge to close cases administratively
solely because the respondent is subject to investigation or indices
checks. Administrative closure causes a case to fall out of the regular
calendar, undermining an assurance that the case will be resolved in a
timely manner. Instead, this rule contemplates that cases awaiting the
completion of an identity, law enforcement, or security investigation
should remain on an active calendar and should be on schedule for a
hearing on a particular date. Instead of administrative closure, the
Department anticipates that the continuance process described in this
rule will deal with the necessary delays inherent in completing
identity, law enforcement, and security investigations and examinations
for certain respondents.
The Department recognizes the importance of completing the
investigations and indices checks in advance and allowing an adequate
opportunity for DHS or other agencies to complete the necessary steps
regarding the background investigations. On occasion, immigration
judges have attempted to ``order'' DHS to complete investigations by a
specific date, an authority that was never delegated by the Attorney
General when the functions of the former Immigration and Naturalization
Service were a part of the Department of Justice, and an authority that
the Attorney General does not now delegate to immigration judges.
However, the Department believes that it is also important for the
immigration judge to be able to move cases toward completion. The
Department believes that the rule properly balances the respective and
competing interests in that very small number of affected cases where
DHS is not able to complete the necessary identity, law enforcement,
and security investigations of the alien in time for the scheduled
hearing on the merits of the alien's application for immigration
relief.
In some cases, the continuance of a merits hearing would impose
significant burdens on the court, the respondent, or witnesses, and
this rule does not prohibit an immigration judge from proceeding with a
merits hearing in the absence of a report from DHS that all background
investigations are complete. In such cases, the immigration judge may
hear the case on the merits but may not render a decision granting any
covered form of relief. Instead, the immigration judge should schedule
an additional master hearing on a date by which investigations are
expected to be completed.
Procedures for Cases on Appeal Before the Board
This rule also provides new procedures codified at Sec.
1003.1(d)(6) to
[[Page 4748]]
take account of those cases where the Board is considering relief from
removal that is subject to the provisions of Sec. 1003.47(b), to
ensure that the Board does not affirm or grant such relief where the
identity, law enforcement, and security investigations or examinations
have not been conducted or the results of prior background checks have
expired and must be updated.
In most of the currently pending cases (sometimes referred to as
pipeline or transitional cases), there is no indication in the record
whether or not DHS ever conducted the identity, law enforcement, and
security investigations or examinations with respect to the respondent.
In such cases, the Board will not be able to issue a final decision
granting any application for relief that is subject to the provisions
of Sec. 1003.47, because the record is not yet complete. After
consideration of the issues on appeal, the Board will remand the case
to the immigration judge with instructions to allow DHS to complete the
necessary investigations and examinations and report the results to the
immigration judge.
In the future, though, once the provisions of Sec. 1003.47 take
effect, the Department recognizes that for those cases appealed to the
Board involving applications for relief, DHS will have completed the
appropriate background checks either in advance of the filing of the
NTA or prior to the immigration judge's decision. The issue on appeal
therefore will be whether those checks are current and whether new
information has developed since completion of the initial background
checks that would affect the appeal and the underlying application for
relief.
Based upon the consideration that DHS will have run background
checks at least once prior to the time the Board is considering an
appeal, this rule provides a new limitation that the Board cannot grant
an application for relief if DHS notifies the Board that the background
checks have expired and need to be updated or if the background checks
have uncovered information bearing on the merits of the alien's
application for relief. Because DHS (not the immigration judge or the
Board) determines the requirements and timing for updating previous
investigations or examinations, and DHS may decide to revise such
standards and requirements over time, it is appropriate to require DHS
to notify the Board in those cases where DHS has determined that the
results of the previous checks have expired and must be updated.
However, in view of the time needed for the Board to complete its case
adjudications, the Department acknowledges that in many (perhaps most)
appeals the results of the previous identity, law enforcement, and
security investigations or examinations will no longer be current under
the standards established by DHS and must be updated before the Board
has completed its adjudication process. (Under the current regulations
in 8 CFR 1003.1(e), the Board is required to adjudicate cases within 90
days after the completion of the record on appeal for cases assigned to
a single Board member, or within 180 days after completion of the
record on appeal for cases assigned to a three-member panel. Those time
frames, however, do not include the time needed to complete the record
on appeal, including transcription of the proceedings before the
immigration judge and completion of briefing by the parties.)
In those cases where DHS advises the Board that the results of
earlier investigations are no longer current under DHS's standards, the
Board will not be able to issue a final decision granting or affirming
any form of relief covered by Sec. 1003.47. Except as provided in
Sec. 1003.1(d)(6)(iv) of this rule, the Board will then choose one of
two alternatives in order to complete the adjudication of the case in
the most expeditious manner. In many such cases, after consideration of
the merits of the appeal, the Board will issue an order remanding the
case to the immigration judge to permit DHS to update the results of
the previous identity, law enforcement, and security investigations or
examinations and report the results to the immigration judge. In the
alternative, after consideration of the merits of the appeal, the Board
may provide notice to both parties that in order to complete the
adjudication of the appeal the case is being placed on hold to allow
DHS to update biometrics and other biographical information processing
requirements and any remaining identity, law enforcement, and security
investigations. (The rule also includes a conforming amendment to the
existing time limits for the Board's disposition of appeals). Under the
provisions of Sec. 1003.1(d)(6) and Sec. 1003.47(e), as added by this
rule, DHS is obligated to complete the investigations as soon as
practicable and to advise the Board promptly whether or not the
investigations have been completed and are current.
This rule does not disturb the Board's authority to take
administrative notice of the contents of official documents as provided
in 8 CFR 1003.1(d)(3)(iv). If there are any issues to be resolved
relating to any information bearing on the respondent's eligibility
(or, if the relief is discretionary, whether that information supports
a denial in the exercise of discretion), DHS may file a motion with the
Board to remand the record of proceedings to the immigration judge.
Where the Board cannot properly resolve the appeal without further
factfinding, the record may be remanded to the immigration judge.
In the short term, the Department anticipates that remanding cases
to the immigration judge may be the most efficient means to complete or
update results for pipeline or transitional cases, since that process
will facilitate DHS's ability to obtain new biometrics from the
respondent for the purpose of updating previous identity, law
enforcement, and security investigations or examinations. Over time,
however, as DHS is able to improve its internal procedures for updating
the results of previous investigations or examinations without the need
for aliens to provide a new set of fingerprints, the Department expects
that the Board and DHS should be able to make much greater use of the
procedure for holding pending appeals where necessary in order to allow
the opportunity for DHS to update prior results without requiring a
remand.
In any case that is remanded to the immigration judge pursuant to
Sec. 1003.1(d)(6), the Board's order will be an order remanding the
case and not a final decision, in order to allow DHS to complete or
update the identity, law enforcement, and security investigations or
examinations of the respondent(s). The immigration judge will then
consider the results of the completed or updated investigations or
investigations before issuing a decision granting or denying the relief
sought. If DHS presents additional information as a result, the
immigration judge may conduct a further hearing as needed to resolve
any legal or factual issues raised. The immigration judge's decision
following remand may be appealed to the Board as provided by Sec. Sec.
1003.1(b) and 1003.38 if there is any new evidence in the record as a
result of the background investigation.
Section 1003.1(d)(6)(iv) of this rule, however, provides that the
Board is not required to remand or hold a case under Sec. 1003.1(d)(6)
if the Board decides to dismiss the respondent's appeal or deny the
relief sought. In any case where the results of the DHS investigations
or examinations would not affect the disposition of the case--for
example, where the Board determines that the respondent's appeal should
be dismissed or the alien is ineligible for
[[Page 4749]]
the relief sought because of a criminal conviction or is unable to
establish required elements for eligibility such as continuous physical
presence, extreme hardship, good moral character, or past persecution
or a well-founded fear of future persecution--there is no reason to
delay the Board's disposition of the case. The results of the identity,
law enforcement, or security investigations or examinations may be
relevant to the exercise of discretion in granting or denying relief in
some cases, but not in cases where the respondent is unable to
establish eligibility in any event.
The Department recognizes that the implementation of this rule will
mean that many cases may be continued by the immigration judges or
remanded or placed on hold by the Board pending the completion or
updating of the necessary identity, law enforcement, and security
investigations or examinations by DHS. This is particularly true for
the pipeline or transitional cases that are already pending as of the
date this rule takes effect. Nevertheless, the Department has
determined that the security of the United States is of the utmost
importance and requires that aliens not be granted the forms of relief
covered by Sec. 1003.47 unless the identity, law enforcement, and
security investigations and examinations have been conducted by DHS and
are up-to-date. The Department is therefore publishing this rule as an
interim rule. Moreover, after the initial implementation period, it is
expected that the number of cases where immigration judges will
continue a case under Sec. 1003.47(f) or where the Board is required
to hold or remand a case under Sec. 1003.1(d)(6) will diminish over
time. The Department anticipates that in the future DHS will be able to
improve its procedures for conducting and updating its investigations
or examinations in such a manner as to minimize the delays in the
adjudicatory process.
Granting of Relief
When the immigration judge or the Board grants relief entitling
respondent to a document from DHS evidencing status, the decision will
include either an oral or written notification to the respondent to
appear before the appropriate local DHS office for preparation of such
document or to obtain required biometric and other biographical
information for preparation of such document. In the past, the lack of
such a notification by immigration judge and Board decisions and the
ambiguity of an Immigration and Customs Enforcement counsel's
responsibility to provide such instruction relating to a function of
CIS have resulted in confusion on the part of the alien about the
process for receiving such document. It is expected that the local DHS
office will promptly direct the respondent to submit to any biometric
processing necessary to prepare documents in keeping with biometric and
other requirements of the law.
Conforming Amendments to Part 1208
This rule makes conforming amendments to 8 CFR part 1208 to ensure
consistency with the provisions of Sec. 1003.47 as added by this rule.
The rule amends Sec. 1208.4 to provide that an asylum application
filed in proceedings before an immigration judge is considered to have
been filed regardless of when biometrics are completed, as provided in
Sec. 1003.47. Failure to comply with processing requirements for
biometrics and other biographical information within the time allowed
will result in dismissal of the application, unless the applicant
demonstrates that such failure was the result of good cause under Sec.
1003.47(c) and (d) and amended 8 CFR 1208.10.
This rule also revises the language of Sec. 1208.10 to eliminate
confusing and unnecessary language that pertains to the processing of
asylum applications by asylum officers in USCIS rather than by the
immigration judges. Retention of such provisions pertaining solely to
DHS's asylum office procedures--including the reference to a failure to
appear for an asylum interview before an asylum officer, the waiver of
the right to an adjudication by an asylum officer, and providing a
change of address to the Office of International Affairs--is
unnecessary and inappropriate in the Attorney General's regulations in
part 1208 that now govern consideration of asylum cases by the
immigration judges and the Board.\7\ (Such provisions, of course, are
still retained in the DHS regulations in 8 CFR part 208 relating to the
consideration of asylum applications by asylum officers.)
---------------------------------------------------------------------------
\7\ Pursuant to the Homeland Security Act of 2002, Public Law
107-296, on March 1, 2003, the functions of the former Immigration
and Naturalization Service were transferred from the Department of
Justice to DHS. Although the responsibility for the Asylum Officer
program was transferred to USCIS, the immigration judges and the
Board remained under the authority of the Attorney General and
retained their preexisting authority with respect to applications
for asylum and withholding of removal filed or renewed by aliens in
removal proceedings. Since both the Secretary of Homeland Security
and the Attorney General are vested with independent authority over
asylum matters and certain other matters under the Immigration and
Nationality Act, it was necessary for the Attorney General to
promulgate a new set of regulations pertaining to the authority of
the immigration judges and the Board, separate from the previous INS
regulations. Accordingly, on February 28, 2003, the Attorney General
published regulations reorganizing title 8 of the Code of Federal
Regulations, creating a new chapter V for regulations of the
Department of Justice, which is separate from the regulations of the
new DHS that continue to be codified in 8 CFR chapter I. 68 FR 9824
(February 28, 2003); see also 68 FR 10349 (March 5, 2003). As a
result of the shared authority over asylum matters, and in view of
the limited time available to implement the necessary changes, the
Attorney General's new regulations duplicated the asylum and
withholding of removal regulations in part 208 into a new part 1208
in chapter V. The Department of Justice and DHS are now engaged in
the process of amending their respective regulations to eliminate
unnecessary provisions pertaining to the authority of the other
agency.
---------------------------------------------------------------------------
There is no need for lengthy provisions in Sec. 1208.10 pertaining
to an alien's failure to appear for a hearing before an immigration
judge because the Act already provides clear procedures for dealing
with a failure to appear, including the issuance of an order of
deportation or removal in absentia in appropriate cases, and also a
process for seeking rescission of an in absentia order. See section
240(b)(5) and former section 242B(c) of the Act. There is also no need
for discussion of a change of address in this context because the Act
and the regulations already include clear provisions relating to the
obligation of aliens to provide a current address to the Attorney
General in connection with the immigration proceedings. Accordingly,
after a brief reference to the consequences for an alien's failure to
appear for a deportation or removal proceeding, Sec. 1208.10 is
revised to focus on the issue of a failure to comply with requirements
to provide biometrics and other biographical information, consistent
with the provisions of Sec. 1003.47.
This rule also makes a conforming amendment in Sec. 1208.14 to
require compliance with the requirements of Sec. 1003.47 concerning
identity, law enforcement, and security investigations before an
immigration judge can grant asylum. This change codifies the existing
statutory requirement in section 208(d)(5)(A)(i) of the Act and cross-
references the procedural requirements in Sec. 1003.47.
Voluntary Departure
Section 240B of the Act (8 U.S.C. 1229c) authorizes DHS (prior to
the initiation of removal proceedings) or an immigration judge (after
the initiation of removal proceedings) to approve an alien's request to
be granted the privilege of voluntary departure in lieu of being
ordered removed from the United States. Although a grant of voluntary
departure does not authorize an alien to remain indefinitely in the
United States, it permits the alien to
[[Page 4750]]
remain in the United States until the expiration of the period of
voluntary departure--generally, up to 120 days if voluntary departure
is granted prior to the completion of immigration proceedings pursuant
to 8 CFR 1240.26(b) and up to 60 days if granted at the conclusion of
the proceedings before the immigration judge pursuant to 8 CFR
1240.26(c).
The identity, law enforcement, and security checks conducted by DHS
are also relevant in connection with the granting of voluntary
departure by an immigration judge, whether during the pendency of
removal proceedings or at the completion of those proceedings. This is
so because the results of the investigations may be relevant with
respect to the exercise of discretion by the immigration judge in
deciding whether or not to grant voluntary departure, and also in view
of the requirement that an alien must demonstrate good moral character
to obtain voluntary departure at the conclusion of removal proceedings.
See 8 CFR 1240.26(c). A grant of voluntary departure is a valuable
benefit because it allows an alien who departs the country within the
allowable period to avoid the adverse future consequences under the
immigration laws attributable to having been ordered removed.
On the other hand, the Department recognizes the importance of
granting of voluntary departure in proper cases, whether voluntary
departure is granted prior to the conclusion of immigration proceedings
or in lieu of an order of removal, without causing unnecessary delays
in the process. As a practical matter, the DHS background and security
checks may be completed routinely in many cases in a timely manner, if
DHS captures the alien's biometrics or other biographical information
and initiates the necessary investigations prior to or at the time of
issuing and filing the NTA, but there will be some cases as noted above
where completion of the background or security checks may require a
significant additional period of time.
Accordingly, this rule does not propose to require the immigration
judges to wait until being advised by DHS that it has completed the
appropriate identity, law enforcement, and security investigations
before the immigration judges can grant voluntary departure. However,
the rule recognizes that DHS may affirmatively seek additional time to
complete such investigations in some cases prior to the granting of
voluntary departure, and allows the immigration judges to decide such
requests for a continuance on a case-by-case basis.
This rule also makes an accommodation in the existing time limits
with respect to the granting of voluntary departure prior to the
conclusion of removal proceedings, where the alien makes a request for
voluntary departure no later than the master calendar hearing at which
the case is initially calendared for a merits hearing, as provided in 8
CFR 1240.26(b)(1)(i)(A). In such a case, where the DHS investigations
have not yet been completed, the immigration judge may grant a
continuance to await the results of DHS's investigations before
granting voluntary departure. The granting of a continuance will
thereby extend the 30-day period, as currently provided in Sec.
1240.26(b)(1)(ii), for the immigration judge to grant a request for
voluntary departure prior to the conclusion of removal proceedings.
Custody Redeterminations
In view of the distinct nature of custody redetermination hearings
before the immigration judges, and the exigencies of time often
associated with such hearings, this rule does not propose to apply the
same procedures for custody hearings as for removal proceedings. See 8
CFR 1003.19(d) (custody and bond hearings separate and apart from
removal proceedings).
Although some background or security investigations may require
weeks or months to resolve certain sensitive or difficult issues, as
noted above, the initial determinations relating to holding aliens in
custody during the pendency of removal proceedings against them must be
made on a more expedited basis. Under its existing regulations, DHS
generally must make a decision on the continued detention of an alien
within 48 hours of apprehending the alien, except in the case of an
emergency or other extraordinary circumstances requiring additional
time. 8 CFR 287.3(d). Thereafter, unless the alien is subject to
detention pursuant to section 236(c) of the Act or other special
circumstances, the alien can immediately request a hearing before an
immigration judge to seek a redetermination of the conditions of
custody, as provided in 8 CFR 1003.19.
The Supreme Court has repeatedly ``recognized detention during
deportation proceedings as a constitutionally valid aspect of the
deportation process,'' Demore v. Kim, 538 U.S. 510, 523 (2003), and has
recognized that ``Congress eliminated any presumption of release
pending deportation, committing that determination to the discretion of
the Attorney General.'' Reno v. Flores, 507 U.S. 292, 306 (1993); see
also Carlson v. Landon, 342 U.S. 524, 538-40 (1952). Under section 236
of the Act (8 U.S.C. 1226), an alien has no right to be released from
custody during the pendency of removal proceedings, and both DHS, in
making custody decisions, and the Attorney General, the Board, and the
immigration judges, in conducting reviews of custody determinations,
have broad discretion in deciding whether or not an alien has made a
sufficient showing to merit being released on bond or on personal
recognizance pending the completion of removal proceedings.
As recognized by the Supreme Court, section 236(a) does not give
detained aliens any right to release on bond. Rather, the statute
merely gives the Attorney General the authority to grant bond if he
concludes, in the exercise of broad discretion, that the alien's
release on bond is warranted. The extensive discretion granted the
Attorney General under the statute is confirmed by its further
provision that ``[t]he Attorney General's discretionary judgment
regarding the application of this section shall not be subject to
review.'' Section 236(e) of the INA. Even apart from that provision,
the courts have consistently recognized that the Attorney General
has extremely broad discretion in determining whether or not to
release an alien on bond under this and like provisions. Further,
the INA does not limit the discretionary factors that may be
considered by the Attorney General in determining whether to detain
an alien pending a decision on asylum or removal.
Matter of D-J-, 23 I&N Dec. 572, 575-76 (A.G. 2003) (citations omitted;
emphasis in original).
The existing regulations provide that an immigration judge, in
reviewing a custody determination by DHS, may consider any relevant
information available to the immigration judge or any information
presented by the alien or by DHS. 8 CFR 1003.19(d). There can be no
doubt that the results of DHS's identity, law enforcement, and security
investigations can be quite relevant with respect to a redetermination
of custody conditions by the immigration judge for aliens detained in
connection with immigration proceedings. The custody decisions should
be made on the basis of as complete a record as possible under the
circumstances, but must be made promptly in light of applicable legal
standards.
Accordingly, Sec. 1003.47(k) of the rule provides that the
immigration judges, in scheduling a custody redetermination hearing in
response to an alien's request under 8 CFR 1003.19(b), should take into
account, to the extent practicable consistent with the expedited nature
of such cases, the brief initial period of time needed by DHS to
conduct the
[[Page 4751]]
automated portions of its identity, law enforcement, and security
checks prior to a custody redetermination by an immigration judge.
This rule contemplates that DHS may have an opportunity to present
at least the results of automated checks, to the extent practicable,
but does not require the immigration judges to wait until being advised
by DHS that it has completed all appropriate identity, law enforcement,
and security investigations before the immigration judges can order an
alien released on bond or personal recognizance. However, the rule
specifically provides that DHS may affirmatively request that the
immigration judge allow additional time to complete such investigations
in particular cases prior to the issuance of a custody decision, and
the immigration judge will decide such requests for a continuance on a
case-by-case basis.
Allowing a brief initial period of time for DHS to complete the
automated portions of its background and security checks, and providing
a process for DHS to request additional time in particular cases to
resolve issues in those investigations, is sound public policy in order
to ensure that the immigration judges' decisions are based on as
complete a record as possible under the circumstances. Moreover, this
approach may also be expected to reduce the number of instances in
which an immigration judge's custody decision is subject to an
automatic stay pending appeal to the Board--i.e., in those cases where
DHS as a matter of discretion chooses to invoke the provisions of 8 CFR
1003.19(i)(2) because of concerns relating to the unresolved identity,
law enforcement, or security investigations.
Under this rule, though, there will be cases where the immigration
judge may issue a custody decision without waiting for DHS to complete
all portions of its identity, law enforcement, or security checks,
particularly where there is some delay in completing those
investigations. In any case (whether through the background and
security checks or otherwise) where DHS subsequently discovers
information reflecting a clear change of circumstances with regard to
the reasons for detaining an individual during the pendency of the
removal proceedings, the Department notes that DHS is free to decide to
cancel the alien's bond and take the alien back into custody under
section 236 of the Act, under established procedures. See 8 CFR
236.1(c)(9), 1236.1(c)(9); Matter of Sugay, 17 I&N Dec. 637, 639 (BIA
1981) (finding ``without merit [the alien's] counsel's argument that
the District Director was without authority to revoke bond once an
alien has had a bond redetermination hearing'' before an immigration
judge); see also Matter of Valles-Perez, 21 I&N Dec. 769, 772 (BIA
1997) (``the regulations presently provide that when an alien has been
released following a bond proceeding, a district director has
continuing authority to revoke or revise the bond, regardless of
whether the Immigration Judge or this Board has rendered a bond
decision.''). An alien whose bond has been revoked after previously
being ordered released by an immigration judge can then seek a new
custody determination. See Ortega de los Angeles v. Ridge, No. CV 04-
0551-PHX-JAT (JI) (D. Ariz. Apr. 27, 2004).
Consistent with the district court's accurate interpretation of the
existing regulatory language in Ortega, this rule also revises Sec.
1003.19(e) to clarify this provision and codify the Department's
interpretation that it only relates to subsequent requests for bond
redeterminations made by the alien.
Good Cause Exception
The Department has determined that good cause exists under 5 U.S.C.
553(b)(B) and (d)(3) to make this rule effective April 1, 2005, for
several reasons. Protecting national security and public safety has
long been a focus of U.S. immigration law. Applicants for immigration
benefits are always subject to some form of law enforcement check to
assess their eligibility for the benefits or determine their
inadmissibility to, or removability from, the United States. The
September 11, 2001, attack and the 9/11 Commission's report, however,
have highlighted the urgent need for immediate reforms to certain
immigration processes, including the process by which the Department,
DHS, and other law enforcement agencies initiate, vet, and resolve law
enforcement checks.
Both the Department and DHS have expanded the number and types of
law enforcement checks conducted on aliens seeking immigration
benefits. However, vulnerability exists in the manner in which
immigration benefits are given, particularly when an immigration status
is granted or document is issued prior to completion of the required
law enforcement checks or investigations by DHS, the Department, or
other law enforcement agencies. The 9/11 Commission highlighted many of
the dangers posed by terrorists, including their mobility, and
recommended improved immigration controls that would ensure, among
other things, that terrorists cannot obtain travel documents. Certain
immigration statuses granted by DHS and the Department and certain
documents issued by USCIS authorize aliens not only to work in the
United States but also to travel freely to and from the United States.
Issuance of this interim rule will enable DOJ and DHS to detect aliens
who may pose a threat to the United States before they would otherwise
be granted relief from removal that would permit them to continue
residing in the United States and to obtain documents from DHS that
permit them to board planes and other vessels or work in jobs in the
U.S. that could facilitate their plans to commit terrorist acts. In
addition, possession of an employment authorization document
demonstrates that an alien's presence in the U.S. is ``under color of
law,'' which not only can facilitate travel within the U.S., but also
can cause a law enforcement officer or security official (public or
private) not to follow up on an encounter with the individual.
The significance of completing law enforcement checks prior to the
granting of applications for relief from removal by EOIR adjudicators
or issuance of immigration documents by DHS cannot be overestimated.
DHS reports that through the law enforcement check process it has
discovered that certain applicants were: (1) Attempting to procure
missile technology for a foreign government with terrorist ties; (2)
previously deported for attempted drug smuggling; (3) serving as an
executive officer of a designated foreign terrorist organization; (4)
subject to outstanding warrants for rape and other aggravated felonies;
and (5) escaped prisoners from Canada and other countries who were
subject to extradition. If the Department had granted an application
for relief from removal, such as lawful permanent resident status,
without being apprised of results from law enforcement checks or
investigations, it is likely that individuals such as these would have
gained the freedom to move throughout the United States (and possibly
travel internationally) and to further any criminal efforts or
terrorist activities that could affect America's safety and threaten
national security.
Congress has provided DHS and the Department with authority in
certain instances to rescind, revoke, or terminate an immigration
status that was illegally procured or procured by concealment of a
material fact or by willful misrepresentation. See, e.g. sections 205,
246, and 340 of the Act (8 U.S.C. 1155, 1256, and 1451). However, the
process for rescission, revocation, or termination of an immigration
status or document in many instances can be prolonged for several
months or years, particularly in those cases requiring
[[Page 4752]]
judicial review. Even when DHS places aliens in removal or rescission
proceedings or seeks to terminate or revoke an immigration status
previously granted, the aliens in most instances retain their
immigration status, even if granted in error, while such proceedings
are ongoing and until concluded. As a result, the potential for harm
increases the longer an alien retains an immigration status or document
that he or she is not lawfully entitled to or should not have been
issued in the first instance. Therefore, it is imperative that DHS run
background checks before applications for immigration relief or
protection from removal are granted or immigration documents are
issued.
While we expect that public comments may help the Department to
improve its process, the urgency of putting a better system in place
outweighs the opportunity for notice and comment before any improvement
is made. Accordingly, the Department finds that it would be
impracticable and contrary to the public interest to delay
implementation of this rule to allow the prior notice and comment
period normally required under 5 U.S.C. 553(b)(B) and (d)(3). The
Department nevertheless invites written comments on this interim rule
and will consider any timely comments in preparing the final rule.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. It does not have any
impact on small entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988, Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval, any reporting requirements
inherent in a final rule. This rule does not impose any new reporting
or recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and function (Government agencies).
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Organization and function (Government agencies).
0
Accordingly, chapter V of title 8 of the Code of Federal Regulations is
amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for 8 CFR part 1003 continues to read as
follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note,
1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan
No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub.
L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L.
106-386; 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-
554, 114 Stat. 2763A-326 to -328.
0
2. Section 1003.1 is amended by redesignating paragraph (d)(6) as
paragraph (d)(7), adding a new paragraph (d)(6), and revising paragraph
(e)(8)(i), to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
(d) * * *
(6) Identity, law enforcement, or security investigations or
examinations. (i) The Board shall not issue a decision affirming or
granting to an alien an immigration status, relief or protection from
removal, or other immigration benefit, as provided in 8 CFR 1003.47(b),
that requires completion of identity, law enforcement, or security
investigations or examinations if:
(A) Identity, law enforcement, or security investigations or
examinations have not been completed during the proceedings;
(B) DHS reports to the Board that the results of prior identity,
law enforcement, or security investigations or examinations are no
longer current under the standards established by DHS and must be
updated; or
(C) Identity, law enforcement, or security investigations or
examinations have uncovered new information bearing on the merits of
the alien's application for relief.
(ii) Except as provided in paragraph (d)(6)(iv) of this section, if
identity, law enforcement, or security investigations or examinations
have not been completed or DHS reports that the results of prior
investigations or examinations are no longer current under the
standards established by DHS, then the Board will determine the best
means to facilitate the final disposition of the case, as follows:
(A) The Board may issue an order remanding the case to the
immigration judge with instructions to allow DHS to complete or update
the appropriate identity, law enforcement, or security investigations
or examinations pursuant to Sec. 1003.47; or
(B) The Board may provide notice to both parties that in order to
complete
[[Page 4753]]
adjudication of the appeal the case is being placed on hold until such
time as all identity, law enforcement, or security investigations or
examinations are completed or updated and the results have been
reported to the Board.
(iii) In any case placed on hold under paragraph (d)(6)(ii)(B) of
this section, DHS shall report to the Board promptly when the identity,
law enforcement, or security investigations or examinations have been
completed or updated. If DHS obtains relevant information as a result
of the identity, law enforcement, or security investigations or
examinations, or if the applicant fails to comply with necessary
procedures for collecting biometrics or other biographical information,
DHS may move to remand the record to the immigration judge for
consideration of whether, in view of the new information or the alien's
failure to comply, the immigration relief should be denied, either on
grounds of eligibility or, where applicable, as a matter of discretion.
(iv) The Board is not required to remand or hold a case pursuant to
paragraph (d)(6)(ii) of this paragraph if the Board decides to dismiss
the respondent's appeal or deny the relief sought.
(v) The immigration relief described in 8 CFR 1003.47(b) and
granted by the Board shall take effect as provided in 8 CFR 1003.47(i).
(e) * * *
(8) * * *
(i) Except in exigent circumstances as determined by the Chairman,
or as provided in paragraph (d)(6) of this section, the Board shall
dispose of all appeals assigned to a single Board member within 90 days
of completion of the record on appeal, or within 180 days after an
appeal is assigned to a three-member panel (including any additional
opinion by a member of the panel).
* * * * *
0
3. Paragraph (e) of Sec. 1003.19 is revised to read as follows:
Sec. 1003.19 Custody/bond.
* * * * *
(e) After an initial bond redetermination, an alien's request for a
subsequent bond redetermination shall be made in writing and shall be
considered only upon a showing that the alien's circumstances have
changed materially since the prior bond redetermination.
* * * * *
0
4. Section 1003.47 is added to read as follows:
Sec. 1003.47 Identity, law enforcement, or security investigations or
examinations relating to applications for immigration relief,
protection, or restriction on removal.
(a) In general. The procedures of this section are applicable to
any application for immigration relief, protection, or restriction on
removal that is subject to the conduct of identity, law enforcement, or
security investigations or examinations as described in paragraph (b)
of this section, in order to ensure that DHS has completed the
appropriate identity, law enforcement, or security investigations or
examinations before the adjudication of the application.
(b) Covered applications. The requirements of this section apply to
the granting of any form of immigration relief in immigration
proceedings which permits the alien to reside in the United States,
including but not limited to the following forms of relief, protection,
or restriction on removal to the extent they are within the authority
of an immigration judge or the Board to grant:
(1) Asylum under section 208 of the Act.
(2) Adjustment of status to that of a lawful permanent resident
under sections 209 or 245 of the Act, or any other provision of law.
(3) Waiver of inadmissibility or deportability under sections
209(c), 212, or 237 of the Act, or any provision of law.
(4) Permanent resident status on a conditional basis or removal of
the conditional basis of permanent resident status under sections 216
or 216A of the Act, or any other provision of law.
(5) Cancellation of removal or suspension of deportation under
section 240A or former section 244 of the Act, or any other provision
of law.
(6) Relief from removal under former section 212(c) of the Act.
(7) Withholding of removal under section 241(b)(3) of the Act or
under the Convention Against Torture.
(8) Registry under section 249 of the Act.
(9) Conditional grants relating to the above, such as for
applications seeking asylum pursuant to section 207(a)(5) of the Act or
cancellation of removal in light of section 240A(e) of the Act.
(c) Completion of applications for immigration relief, protection,
or restriction on removal. Failure to file necessary documentation and
comply with the requirements to provide biometrics and other
biographical information in conformity with the applicable regulations,
the instructions to the applications, the biometrics notice, and
instructions provided by DHS, within the time allowed by the
immigration judge's order, constitutes abandonment of the application
and the immigration judge may enter an appropriate order dismissing the
application unless the applicant demonstrates that such failure was the
result of good cause. Nothing in this section shall be construed to
affect the provisions in 8 CFR 1208.4 regarding the timely filing of
asylum applications or the determination of a respondent's compliance
with any other deadline for initial filing of an application, including
the consequences of filing under the Child Status Protection Act.
(d) Biometrics and other biographical information. At any hearing
at which a respondent expresses an intention to file or files an
application for relief for which identity, law enforcement, or security
investigations or examinations are required under this section, unless
DHS advises the immigration judge that such information is unnecessary
in the particular case, DHS shall notify the respondent of the need to
provide biometrics and other biographical information and shall provide
a biometrics notice and instructions to the respondent for such
procedures. The immigration judge shall specify for the record when the
respondent receives the biometrics notice and instructions and the
consequences for failing to comply with the requirements of this
section. Whenever required by DHS, the applicant shall make
arrangements with an office of DHS to provide biometrics and other
biographical information (including for any other person covered by the
same application who is required to provide biometrics and other
biographical information) before or as soon as practicable after the
filing of the application for relief in the immigration proceedings.
Failure to provide biometrics or other biographical information of the
applicant or any other covered individual within the time allowed will
constitute abandonment of the application or of the other covered
individual's participation unless the applicant demonstrates that such
failure was the result of good cause. DHS is responsible for obtaining
biometrics and other biographical information with respect to any alien
in detention.
(e) Conduct of investigations or examinations. DHS shall endeavor
to initiate all relevant identity, law enforcement, or security
investigations or examinations concerning the alien or beneficiaries
promptly, to complete those investigations or examinations as promptly
as is practicable (considering, among other things, increased demands
placed upon such investigations), and to advise the immigration judge
of the
[[Page 4754]]
results in a timely manner, on or before the date of a scheduled
hearing on any application for immigration relief filed in the
proceedings. The immigration judges, in scheduling hearings, shall
allow a period of time for DHS to undertake the necessary identity, law
enforcement, or security investigations or examinations prior to the
date that an application is scheduled for hearing and disposition, with
a view to minimizing the number of cases in which hearings must be
continued.
(f) Continuance for completion of investigations or examinations.
If DHS has not reported on the completion and results of all relevant
identity, law enforcement, or security investigations or examinations
for an applicant and his or her beneficiaries by the date that the
application is scheduled for hearing and disposition, after the time
allowed by the immigration judge pursuant to paragraph (e) of this
section, the immigration judge may continue proceedings for the purpose
of completing the investigations or examinations, or hear the case on
the merits. DHS shall attempt to give reasonable notice to the
immigration judge of the fact that all relevant identity, law
enforcement, or security investigations or examinations have not been
completed and the amount of time DHS anticipates is required to
complete those investigations or examinations.
(g) Adjudication after completion of investigations or
examinations. In no case shall an immigration judge grant an
application for immigration relief that is subject to the conduct of
identity, law enforcement, or security investigations or examinations
under this section until after DHS has reported to the immigration
judge that the appropriate investigations or examinations have been
completed and are current as provided in this section and DHS has
reported any relevant information from the investigations or
examinations to the immigration judge.
(h) Adjudication upon remand from the Board. In any case remanded
pursuant to 8 CFR 1003.1(d)(6), the immigration judge shall consider
the results of the identity, law enforcement, or security
investigations or examinations subject to the provisions of this
section. If new information is presented, the immigration judge may
hold a further hearing if necessary to consider any legal or factual
issues, including issues relating to credibility, if relevant. The
immigration judge shall then enter an order granting or denying the
immigration relief sought.
(i) Procedures when immigration relief granted. At the time that
the immigration judge or the Board grants any relief under this section
that would entitle the respondent to a new document evidencing such
relief, the decision granting such relief shall include advice that the
respondent will need to contact an appropriate office of DHS.
Information concerning DHS locations and local procedures for document
preparation shall be routinely provided to EOIR and updated by DHS.
Upon respondent's presentation of a final order from the immigration
judge or the Board granting such relief and submission of any biometric
and other information necessary, DHS shall prepare such documents in
keeping with section 264 of the Act and regulations thereunder and
other relevant law.
(j) Voluntary departure. The procedures of this section do not
apply to the granting of voluntary departure prior to the conclusion of
proceedings pursuant to 8 CFR 1240.26(b) or at the conclusion of
proceedings pursuant to 8 CFR 1240.26(c). If DHS seeks a continuance in
order to complete pending identity, law enforcement, or security
investigations or examinations, the immigration judge may grant
additional time in the exercise of discretion, and the 30-day period
for the immigration judge to grant voluntary departure, as provided in
Sec. 1240.26(b)(1)(ii), shall be extended accordingly.
(k) Custody hearings. The foregoing provisions of this section do
not apply to proceedings seeking the redetermination of conditions of
custody of an alien during the pendency of immigration proceedings
under section 236 of the Act. In scheduling an initial custody
redetermination hearing, the immigration judge shall, to the extent
practicable consistent with the expedited nature of such cases, take
account of the brief initial period of time needed for DHS to conduct
the automated portions of its identity, law enforcement, or security
investigations or examinations with respect to aliens detained in
connection with immigration proceedings. If at the time of the custody
hearing DHS seeks a brief continuance in an appropriate case based on
unresolved identity, law enforcement, or security investigations or
examinations, the immigration judge in the exercise of discretion may
grant one or more continuances for a limited period of time which is
reasonable under the circumstances.
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
5. The authority citation for part 1208 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1225, 1231, 1282.
0
6. Section 1208.4 is amended by adding two new sentences at the end of
paragraph (a)(2)(ii), to read as follows:
Sec. 1208.4 Filing the application.
* * * * *
(a) * * *
(2) * * *
(ii) * * * The failure to have provided required biometrics and
other biographical information does not prevent the ``filing'' of an
asylum application for purposes of the one-year filing rule of section
208(a)(2)(B) of the Act. See 8 CFR 1003.47.
* * * * *
0
7. Section 1208.10 is revised to read as follows:
Sec. 1208.10 Failure to appear at a scheduled hearing before an
immigration judge; failure to follow requirements for biometrics and
other biographical information processing.
Failure to appear for a scheduled immigration hearing without prior
authorization may result in dismissal of the application and the entry
of an order of deportation or removal in absentia. Failure to comply
with processing requirements for biometrics and other biographical
information within the time allowed will result in dismissal of the
application, unless the applicant demonstrates that such failure was
the result of good cause. DHS is responsible for obtaining biometrics
and other biographical information with respect to any alien in
custody.
0
8. Section 1208.14 is amended by adding a new sentence at the end of
paragraph (a) to read as follows:
Sec. 1208.14 Approval, denial, referral, or dismissal of application.
(a) * * * In no case shall an immigration judge grant asylum
without compliance with the requirements of Sec. 1003.47 concerning
identity, law enforcement, or security investigations or examinations.
* * * * *
Dated: January 26, 2005.
John Ashcroft,
Attorney General.
[FR Doc. 05-1782 Filed 1-27-05; 12:33 pm]
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