Yesterday, the BIA issued a new precedent decision in Matter of D-M-C-P-, addressing two unrelated questions: (1) when an IJ can deem an asylum application “abandoned” for failure to get biometrics timely processed; and (2) whether the BIA or IJ have jurisdiction to review whether asylum-only proceedings are appropriate when a person is charged as a Visa Waiver applicant.

In this case, the applicant did have his biometrics processed 4 days before the final hearing, but the IJ concluded that the DHS hadn’t had enough time to review them and thus that the application had been “abandoned” by the immigrant.

Regarding the second question, the BIA was quite clear: “asylum-only proceedings present a significantly limited scope of issues for the Immigration Judge to review. In that regard, neither the Immigration Judge nor we have jurisdiction to consider whether such proceedings were improvidently instituted pursuant to a referral under the VWP program.”

It noted if the applicant wants review of whether the proceedings are proper, she must petition a federal court once there is a final order of removal. 

The second holding actually provides helpful guidance on an issue that comes up often: the applicant’s burden to submit to biometrics. The BIA held that the application could not be deemed abandoned unless the immigrant complied with several mandatory steps:

“To ensure that an asylum applicant receives proper notice of the biometrics requirements, 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”

Finally, the BIA said that the immigrant should be given a “reasonable period of time” to comply with the instructions on the biometrics instruction form and for the completion of the necessary background investigations and security checks, and that the Judge should schedule the merits hearing for a date that affords the applicant “a reasonable period of time to comply with the DHS biometrics instructions and the DHS time to complete the background investigations and security checks.” And an IJ cannot determine that the application is abandoned solely because the DHS hasn’t finished checking the biometrics against its databases.