In re Suseenthera Kanagasundram: BIA Rules INS Must Issue Asylum and Visa Waiver Applicant Notice of Referral to IJ, Not Notice to Appear

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

IN RE SUSEENTHERA KANAGASUNDRAM: BIA RULES INS MUST ISSUE ASYLUM AND VISA WAIVER APPLICANT NOTICE OF REFERRAL TO IJ, NOT NOTICE TO APPEAR
Immigrants’ Rights Update, Vol. 13, No. 7, November 17, 1999

In the case of a Sri Lankan who applied both for admission under the Visa Waiver Pilot Program (VWPP) using a counterfeit Dutch passport and for asylum, the Board of Immigration Appeals has ruled that the Immigration and Naturalization Service incorrectly issued a Notice to Appear (Form I-862) to the respondent. In affirming the immigration judge’s termination of removal proceedings, the BIA held that the INS should have issued a Notice of Referral to Immigration Judge (Form I-863), as required under 8 C.F.R. section 217.4.

Under Immigration and Nationality Act section 235(b), immigrants who attempt entry by fraud or misrepresentation are subject to expedited removal. However, the regulations implementing the INA’s expedited removal provisions make an exception for immigrants who apply for admission under the VWPP and for asylum, requiring that they be issued a Notice of Referral to Immigration Judge. The INS had argued that because the respondent is in fact a national of Sri Lanka, a country not designated as VWPP-eligible, the agency retains discretion to apply expedited removal provisions.

The BIA disagreed, pointing out that VWPP regulations explicitly cover individuals who present fraudulent and counterfeit travel documents purportedly originating from VWPP designated countries, where such persons are applying for asylum in addition to admission under the VWPP. Accordingly, the BIA ordered removal proceedings terminated.

In re Suseenthera Kanagasundram, Int. Dec. 3407 (BIA July 29, 1999).