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It Is Improper to Deem an Application for Relief Abandoned Based on the Applicant’s Failure to Comply With the Biometrics Filing


Where an immigration officer determines that an individual is an applicant for admission under the VWP and is inadmissible, the applicant will be refused admission into the United States and removed, without referral to an Immigration Judge for a determination of deportability, except that an Immigration Judge has jurisdiction over any application for asylum, withholding of removal, or protection under the Convention Against Torture filed by the alien. See 8 C.F.R. §§ 208.2(c)(1)(iii), (3)(i), 217.4(a), 1208.2(c)(1)(iii), (3)(i) (2015); see also Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999).

Similarly, an individual who already has been admitted to the United States under the VWP and is determined by an immigration officer to be deportable from the United States will be removed to his or her country of nationality or last residence unless the applicant requests an opportunity to have a claim for asylum and related relief heard by an Immigration Judge. See 8 C.F.R. §§ 208.2(c)(1)(iv), (3)(i), 217.4(b), 1208.2(c)(1)(iv), (3)(i).

The regulations expressly provide that in such referred asylum-only proceedings, the “scope of review . . . shall be limited to a determination of whether the alien is eligible for asylum or withholding or deferral of removal, and whether asylum shall be granted in the exercise of discretion,” and “all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief.” 8 C.F.R. §§ 208.2(c)(3)(i), 1208.2(c)(3)(i); see also Matter of A-W-, 25 I&N Dec. 45, 46 n.1, 47?48 (BIA 2009); cf. 8 C.F.R. § 1003.19(h)(2)(ii) (2015) (stating explicitly that nothing in the regulation should “be Cite as 26 I&N Dec. 644 (BIA 2015) construed as prohibiting an alien from seeking a determination by an immigration judge that the alien is not properly included” within the category of aliens subject to mandatory detention).

Under the governing regulations, applicants for asylum, withholding of removal, and protection under the Convention Against Torture are required to submit to identity, law enforcement, or security investigations or examinations, which include the submission of biometrics and other biographical information. See 8 C.F.R. § 1003.47(b)(1), (7), (d) (2015). According to the regulation at 8 C.F.R. § 1003.47(d),

At any hearing at which [an applicant] expresses an intention to file or files  an application for relief for which identity, law enforcement, or security  investigations or examinations are required . . . , unless [the] DHS advises  the immigration judge that such information is unnecessary in the  particular case, [the] DHS shall notify the [applicant] of the need to  provide biometrics and other biographical information and shall provide a  biometrics notice and instructions to the [applicant] for such procedures.  The immigration judge shall specify for the record when the [applicant]  receives the biometrics notice and instructions, and the consequences for  failing to comply with [these] requirements . . . .

Failure to comply with the biometrics requirement “within the time allowed” constitutes abandonment of the application, and the Immigration Judge may then dismiss the application, unless the applicant demonstrates that such failure was the result of good cause. 8 C.F.R. § 1003.47(c), (d).

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