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.

Rules and Regulations Federal Register

4743

Vol. 70, No. 19

Monday, January 31, 2005

1Withholding 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.

2Biometrics 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.

3Other 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.

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.

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 

4744 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

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.

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. 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4745

4For 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.

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

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 

4746 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

5Section 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, 1966); 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 

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

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4747

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 Adjustment 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. 1900 (Nov. 

6, 2000).

6This includes special rule cancellation of 

removal under NACARA § 203.

• 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 

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 § 1003.1(d)(6) to 

4748 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

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 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 § 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 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 

§ 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 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 

§ 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 §§ 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 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4749

7Pursuant 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.

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 

§ 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 or 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 

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 § 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 

application, 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 the 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 crossreferences the procedural requirements 

in § 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 

4750 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

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 § 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, § 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 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 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 § 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 

4752 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

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 foreignbased 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).

■ Accordingly, chapter V of title 8 of the 

Code of Federal Regulations is amended 

as follows:

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW

■ 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.

■ 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:

§ 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 § 1003.47; or 

(B) The Board may provide notice to 

both parties that in order to complete 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 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 threemember panel (including any additional 

opinion by a member of the panel).

* * * * *

■ 3. Paragraph (e) of § 1003.19 is revised 

to read as follows:

§ 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.

* * * * *

■ 4. Section 1003.47 is added to read as 

follows:

§ 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 

4754 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

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 

§ 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

■ 5. The authority citation for part 1208 

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1225, 1231, 

1282.

■ 6. Section 1208.4 is amended by 

adding two new sentences at the end of 

paragraph (a)(2)(ii), to read as follows:

§ 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.

* * * * *

■ 7. Section 1208.10 is revised to read as 

follows:

§ 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.

■ 8. Section 1208.14 is amended by 

adding a new sentence at the end of 

paragraph (a) to read as follows:

§ 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 

§ 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