\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2005 \ FEDERAL REGISTER INTERIM REGULATIONS - 2005 \ Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals [70 FR 4743] [DHS 6-05] \ Footnotes
Previous Document Next Document
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.
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.
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 Auth
orization, 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.
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 immigrat
ion 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 an
d 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.
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, § § 1-5, 80 Stat. 1161 et seq. (Nov. 2, 1
966); Indochinese Adjustment Act, Public Law 95-145, § § 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, § 599E, 101 Stat. 1263 (Nov. 21, 1989); H-1 Nonimmigrant Nurses Adjustment Act, Public Law 101-238, § 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 Adjus
tment Act of, Public Law 104-208, Div. C, § 646, 110 Stat. 3009-709 (Sept. 30, 1996); Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, § 202, 11 Stat. 2193 (Nov. 19, 1997); Haitian Refugee Immigration Fairness Act (HRIFA), Public Law 105-277, Div. A, § 101(h) [Title IX, § 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, § 101(a), 114 Stat. 1
900 (Nov. 6, 2000).
This includes special rule cancellation of removal under NACARA § 203.
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 a
liens 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.