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 info rmation 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 orde r 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/

·     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/

·     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 defin ition 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 themsel ves 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 DH S 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 caus es 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 com pleting 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 hear ing 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 § 1003.1(d)(6) to take account of those cases where the Board is considering relief from removal that is subject to the provisions of § 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 § 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 § 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 requirement s 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, a nd 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, howeve r, 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 § 1003.47. Except as provided in § 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 Bo ard 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 § 1003.1(d)(6) and § 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 resolv e 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 investigatio ns 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 § 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 in formation 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 § § 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 § 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 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 eligibi lity 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 S tates is of the utmost importance and requires that aliens not be granted the forms of relief covered by § 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 § 1003.47(f) or where the Board is required to hold o r remand a case under § 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 Cu stoms 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 § 1003.47 as added by this rule. The rule amends § 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 § 1003.47. Failure to comply with processing requirements for biometrics and other biographical information within the time allowed will result in dismissal of the appli cation, unless the applicant demonstrates that such failure was the result of good cause under § 1003.47(c) and (d) and amended 8 CFR 1208.10.

    This rule also revises the language of § 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.

    There is no need for lengthy provisions in § 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, § 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 t he provisions of § 1003.47.

    This rule also makes a conforming amendment in § 1208.14 to require compliance with the requirements of § 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 § 1003.47.