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The Executive Office for Immigration Review has published an interim rule that
requires the completion of expanded background and security investigations on
non–U.S. citizens in removal proceedings before immigration judges and the Board
of Immigration Appeals may issue a decision granting them relief.
The background checks
are to be performed by the Dept. of Homeland Security, but the rule does not
specify the exact types of checks that may be performed, noting that “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.” It is left to the discretion of the DHS to determine what identity,
law enforcement, or security checks may be required, and this may change over
time or with respect to the nature of particular cases.
The rule places the
obligation on the applicant to make arrangements with the DHS to provide such
fingerprints, biometric, or other biographical information that may be required
for background checks. The EOIR notes that “the majority of required checks are
returned in a matter of days or weeks,” but that more time and more information
may be needed in particular cases.
The rule allows
immigration judges discretion to continue or proceed with a merits hearing
before a check has been completed but prohibits them from issuing any decision
that grants any form of relief that allows a noncitizen to remain in the U.S.,
unless the check has been completed. The rule does allow IJs discretion to
grant voluntary departure without completion of the required checks, but in
these cases IJs also may grant requests from the DHS for more time to complete
such checks.
The agency decided
to implement an interim rule rather than use the normal procedure of issuing a
proposed rule and giving the public opportunity to comment, finding that the
importance of security checks meets the good cause exception of the
Administrative Procedure Act. The interim rule is effective as of April 1,
2005.
70 FR 4743-54 (Jan. 31,
2005).
By
Linton Joaquin,
NILC executive director
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