Ninth Circuit Delves into Asylum-Only Proceedings

The Ninth Circuit has determined that a stowaway who is granted asylum in asylum-only proceedings does not lose his status as a stowaway, but merely gains the additional status of an asylee. As such, if the asylee is convicted of an aggravated felony, it is proper to reopen the asylum-only proceedings. In such circumstances, the asylee cannot apply for adjustment of status with the Immigration Judge, but can apply with U.S. Citizenship and Immigration Services.

The full text of Bare v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/16/17-73269.pdf

Ninth Circuit Finds that DHS Erred by Placing Petitioner in Asylum Only Proceedings

The Department of Homeland Security (DHS) issued a removal order against Petitioner for overstaying his permitted time in the United States under the visa waiver program.  Petitioner then briefly departed the United States, and was paroled back.  Subsequently, he was placed in asylum-only proceedings, and his asylum application was denied.  The Court determined that Petitioner's brief departure from the United States executed the visa waiver overstay removal order, and as such, the DHS erred by placing him in asylum-only proceedings.  As such, there was no final order of removal before the Court to review, as the original order had been executed, and the denial of asylum did not qualify as a final order of removal because the denial of an asylum application in asylum-only proceedings merely “finalizes” DHS’s removal order of a visa waiver program entrant.  

The full text of Nicusor-Remus v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/15-70588.pdf

BIA Addresses Jurisdiction in Asylum-Only Proceedings and the Necessary Instructions for Biometrics

In a published decision, the Board of Immigration Appeals (Board) determined that it has no jurisdiction to determine whether asylum-only proceedings were improvidently initiated by the Department of Homeland Security (DHS).  The respondent alleged that he did not enter the United States under the Visa Waiver Program, and thus, placing him in asylum-only proceedings was inappropriate.  The Board suggested that the federal courts may be the proper forum for litigating this issue.

In addition, the Board held that when a respondent indicates an intention to apply for a form of immigration relief that requires the DHS to collect his biometric information, the Immigration Judge should do all of the following on the record: (1) ensure that the DHS has advised the applicant of the need to provide biometrics and other biographical information and has furnished the appropriate instructions; (2) inform the applicant of the deadline for complying with the requirements of which he has been notified; and (3) inform the applicant of the consequences of noncompliance, including the possibility that the application will be deemed abandoned and dismissed, unless the failure to comply resulted from good cause.

The full text of Matter of D-M-C-P- can be found here: http://www.justice.gov/eoir/file/643221/download