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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


[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]                         


========================================================================
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 
week.

========================================================================



[[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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).

---------------------------------------------------------------------------

[[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\
---------------------------------------------------------------------------

    \6\ This includes special rule cancellation of removal under 
NACARA Sec.  203.
---------------------------------------------------------------------------

     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]
BILLING CODE 4410-30-P




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