26 I. & N. Dec. 644
BIA2015Background
- Applicant: Argentine national who arrived in the U.S. in 1999; DHS issued a removal order under the Visa Waiver Program (VWP) on May 9, 2011 and referred the case for asylum-only proceedings on June 23, 2011.
- Applicant expressed fear of return and filed an asylum application at master calendar hearings (filed August 3, 2011).
- An individual merits hearing was ultimately scheduled for September 18, 2012; applicant’s fingerprints were taken roughly four days before that hearing.
- At the Sept. 18, 2012 hearing DHS stated biometric checks were not yet complete; applicant requested a continuance which the Immigration Judge (IJ) denied.
- IJ found the applicant had “abandoned” his asylum/withholding/CAT applications for failing to comply expeditiously with biometrics and dismissed them. Applicant appealed.
Issues
| Issue | Applicant's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether IJ/Board have jurisdiction to determine that placement in asylum-only (VWP) proceedings was improvident | Applicant: placement was improper because he had not been admitted under the VWP; IJ should place case into full removal proceedings so applicant can pursue cancellation | DHS: referral under VWP limits proceedings to asylum-related claims; jurisdiction over VWP-referral validity lies outside IJ/Board | Held: IJ/Board lack jurisdiction to review whether asylum-only proceedings were improvidently instituted; such challenges belong to federal courts (appeal dismissed for lack of jurisdiction) |
| Whether IJ properly deemed applications abandoned for failure to comply with biometrics requirement | Applicant: he had fingerprints taken 4 days before hearing; IJ should not dismiss for abandonment where record lacks required notices/deadlines | DHS: applicant failed to comply in time, DHS lacked time to complete checks before hearing | Held: IJ erred—record did not show required DHS biometrics notice, a court-set deadline, or advisal of consequences; dismissal for abandonment reversed and case remanded |
Key Cases Cited
- Bingham v. Holder, 637 F.3d 1040 (9th Cir. 2011) (federal courts may review VWP entrant’s final removal order)
- Bradley v. Attorney General of U.S., 603 F.3d 235 (3d Cir. 2010) (same: appellate review of VWP-related removal)
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (en banc) (federal courts have jurisdiction to review VWP entrant’s removal)
- McCarthy v. Mukasey, 555 F.3d 459 (5th Cir. 2009) (addressing jurisdictional review of VWP-related removal)