Clarifying Removal Procedures for Asylum Seekers Under the Visa Waiver Pilot Program
In re Kanagasundram, 22 I. & N. Dec. 963 (B.I.A. 1999)
Summary for General Audience:
The case focused on how U.S. immigration law handles individuals applying for asylum after entering under the Visa Waiver Pilot Program (VWPP). Specifically, it examined whether the correct procedure was followed when issuing documents for removal proceedings.
Facts
- A man claiming to be from Sri Lanka attempted to enter the U.S. under the Visa Waiver Pilot Program using a fraudulent passport from the Netherlands.
- Upon discovery, U.S. immigration officials deemed him inadmissible and sought to remove him. However, he applied for asylum during the process, which altered the procedural requirements for his case.
- The issue arose when immigration officials issued him a Notice to Appear (Form I-862), used for standard removal proceedings, instead of a Notice of Referral to Immigration Judge (Form I-863), which is required for asylum cases under the VWPP.
- The immigration judge ruled that this was a procedural error and terminated the removal proceedings, a decision later upheld by the Board of Immigration Appeals (BIA).
Legal Analysis:
- The Board reviewed regulations under the Immigration and Nationality Act (INA) and federal law, specifically 8 C.F.R. § 217.4(a)(1), which governs removal proceedings for individuals entering under the VWPP.
- The regulation mandates that any person entering through the VWPP and later applying for asylum must be referred to an immigration judge using Form I-863.
- The government argued that the respondent’s fraudulent use of a Dutch passport meant he was not entitled to protections under the VWPP.
- However, the BIA clarified that the procedures under the VWPP apply even to individuals presenting fraudulent documents from VWPP countries.
- The court emphasized that procedural rules must be followed to ensure fairness and proper application of the law. Since Form I-863 was not issued as required, the proceedings were invalid.
Outcome:
- The Board of Immigration Appeals affirmed the Immigration Judge’s decision to terminate the removal proceedings because immigration officials did not issue the correct form.
- The respondent was not immediately removed but retained the right to have his asylum application processed according to the appropriate legal standards.
Simplified Summary for General Understanding:
This case clarified how immigration authorities should handle cases where someone enters the U.S. under the Visa Waiver Pilot Program (VWPP) but then applies for asylum. The law requires officials to issue a specific form (Form I-863) for such cases, instead of the usual removal form. Because the wrong form was used, the removal case was dismissed, ensuring the asylum claim could proceed correctly. This ruling reinforced the importance of following procedural rules to protect individuals’ rights under immigration law.
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