U.S. Department of JusticeExecutive Office for Immigration ReviewBoard of Immigration Appeals5107 Leesburg Pike, Suite 2400Falls Church, Virginia 2204 /May 29, 2012BIA 12-03MEMORANDUMTO:FROM:Board Legal StaffDavid L. NealChainnanSUBJECT:Background and Security Check Interim Rule - Board Case Processing UPDATEThe Department of Homeland Security (DHS), through the ICE Office of the Principal Legal Advisor,has advised the Executive Office for Immigration Review that, effective May I, 2012, the ICE AssistantChief Counsels (ACCs) will state on the record before the Immigration Judge the precise date that thebackground and security check will expire. As a result, the Board is anticipating an increase in decisionsgranting or affinning an Immigration Judge's grant of relief outright as opposed to issuing a remand due toexpired checks ("Background Check Remand" or "BCR"). The purpose of this memorandum is to addressthe Board's process for when reported checks are "current" (i.e., evidence of an expiration date and that timeperiod has not elapsed).I. General Overview of the Background and Security Check RuleEffective April I, 2005, the Background and Security Check rule prohibits the Board from affinning orgranting particular fonns of relief ("covered relief') without first ensuring that DHS has been provided anopportunity to complete and report background/security checks. See 8 C.F.R. § 1003.l(d)(6). Wherecovered relief is to be affinned or granted, but checks have not been completed or expired, the Board issues aBackground Check Remand or BCR whereby the record is remanded to the Immigration Judge to allow DHSthe opportunity to complete or update the appropriate checks. The Board will issue an order explicitlyaffinning or granting the covered fonn of relief only in cases where the record before the Board affinnativelyreflects that DHS reported the checks to the Immigration Judge and those checks have not expired. TheBoard's order in such cases must also include specific language notifying the alien that he or she mustcontact the appropriate DHS office in order to obtain documentation evidencing status. See 8 C.F.R.§ 1003.47(i).
Background and Security Check Rule Case Processing UpdateBIA 12-03II. Covered Forms of ReliefBelow is a listing of some of the forms of relief covered by the Background and Security Check Rule. Asylum under section 208 of the Act;Adjustment of status to that of an LPR under section 209 or 245 of the Act or any other provision oflaw;Conditional permanent resident status or the removal of the conditional basis of such status undersection 216 or 216A;Waivers of inadmissibility or deportability under sections 209(c), 212, or 237 of the Act or otherprovisions of law;Cancellation of removal under section 240A of the Act, suspension of deportation under formersection 244 of the Act, relief from removal under former section 212(c) of the Act, or any similarform of relief (includes cancellation under NA CARA § 203);Withholding ofremoval under section 241(b)(3) of the Act or withholding or deferral of removalunder the Convention Against Torture;Conditional grants relating to the above, such as for applications seeking cancellation ofremoval inlight of section 240( e) of the Act; andRegistry under section 249 of the Act.III. Background Check Remand or BCRThe Board must remand the record to the Immigration Judge where the Board determines that reliefshould be granted or affirmed, but the record of proceedings does not reveal that checks have beencompleted and reported, or prior checks are no longer current. A decision remanded for the sole purpose ofallowing OHS to complete or update checks must contain the background check remand standard FURTHERORDER language, and the circulation sheet must have the decision code "BCR" selected.For guidance regarding the Board's procedures for processing cases where the Board must issue aBackground Check Remand, please refer to the Background Check Remand Guidance (BIA 07-02) issued onMarch 1, 2007, which is available on the BIA Web Page at http://eoirweb/ccm/bia/biaweb/bia index.html.IV. No Background Check Remand or BCR - BIA Issue Grant/Affirm IJ GrantWhere the Board determines a covered form of relief should be granted or affirmed, the record reflects that checks were completed, reported, and considered by the ImmigrationJudge;and reported checks are "current" (i.e., expiration date provided by OHS on the record and thattime period has not elapsed)the Board may issue a decision that grants or affirms the grant ofrelief. However, the Board's decision mustalso include specific language notifying the alien that he or she must contact the appropriate OHS office inorder to obtain documentation evidencing status. If the requirements listed above are met, then theprocedures listed below need to be followed.2
Background and Security Check Rule Case Processing UpdateBIA 12-03A. Decision format(I) DO NOT include the expiration date of the checks in Board decision.The Board's decision should not contain the expiration date of the checks reported by OHS.Rather, if the decision references OHS' notification and status of the checks being "current"(i. e., expiration date provided by OHS on the record and that time period has not elapsed),then it should be general in nature. For example,The record reflects OHS' notification that the relevant security checks havebeen completed and are current. Accordingly, the following order(s) will beentered.(2) Explicitly state that relief is granted or affirmed.The respondent is required by OHS to bring a copy of the Board ' s decision (fi nal ordergranting/affirming relief) when seeking evidence of status. Therefore, the draft decisionmust explici tly state in the affinnative that the relief is granted or affirmed.Below are some general examples : Alien's appeal is sustained and the application for asylum is granted.ORDER:The appeal is sustained, and the respondent'sapplication for asylum is granted. Alien ' s appeal of denial of asylum and withholding is dismissed, but grant of CATdeferral is affirmed.ORDER: The respondent's appeal of the denial of his applicationsfor asylum and withholding of removal is dismissed.FURTHER ORDER: The Immigration Judge' s grant of therespondent's request for deferral of removal to [country] underthe Convention Against Torture is affirmed. Alien's appeal is sustained and the application for cancellation ofremoval pursuantto section 240A(b) of the Act (LPR cancellation) is granted.ORDER: The respondent' s appeal is sustained.FURTHER ORDER: The respondent's removal proceedings arecanceled under to section 240A(a) of the Immigration andNationality Act.Reminder: There is a statutory annual cap on the number of grants of non-LPRcancellation ofremoval under section 240A(b) of the Act and former suspension of3
Background and Security Check Rule Case Processing UpdateBIA 12-03deportation under former section 244(a) of the Act. Before proposing an ordergranting forms ofrelief subject to this statutory annual cap, consult your Senior PanelAttorney or Team Leader. OHS appeal of an Immigration Judge's grant of relief is dismissed.ORDER: The OHS appeal is dismissed.FURTHER ORDER: The Immigration Judge's decision grantingthe respondent's application for asylum is affirmed.B. Notice to Alien to Contact DHS/USCISA decision that grants or affirms an Immigration Judge's grant ofrelief must contain theNOTICE TO ALIEN TO CONT ACT DHS/USCIS standard notice language. This languagemust appear above the Board Member signature line.NOTICE TO ALIEN TO CONTACT DHS/USCIS: The Board of ImmigrationAppeals has issued a final decision in your case. Depending on the type of relief orprotection from removal that you have been granted, you may be entitled todocuments evidencing your status allowing you to remain in the United States or youmay be eligible to work in this country. However, in order to receive anydocumentation, you need to contact the U.S. Citizenship and Immigration Services(USCIS) of the Department of Homeland Security (OHS), which is the agencyresponsible for the issuance of documents evidencing your status and/or workauthorization. Information regarding the specific USCIS instructions ("Post-OrderInstructions") on procedures for obtaining status documentation or workauthorization may be found at the USCIS website at www.uscis.gov. A hyperlink tothe USCIS webpage that contains the "Post-Order Instructions" may also be found onEOIR's website at www.justice.gov/eoir/. You may also call the USCIS nationalcustomer service number at 1-800-275-5283 .C. Affirmance without opinion (AWO) orderBecause the Immigration Judge's decision becomes the final agency decision when the Boardissues an A WO, avoid using such an order when affirming an Immigration Judge's decision togrant relief. Instead, a short order approach should be utilized to affirm an Immigration Judge'sgrant of a covered form of relief. The short order should generally indicate that relief has beengranted and what type of relief has been granted.D. Circulation sheet(1) Report Expiration Date.The OHS-reported expiration date and transcript cite must be identified in the SpecialInstructions to Docket box on the front-side of the circulation sheet.4
Background and Security Check Rule Case Processing UpdateBIA 12-03(2) Decision Code.Generally, either the decision code " SUS" or " DIS" will be the likely code selected ina case where the Board is granting or affirming a covered form of relief. However, ifasylum is granted or affirmed based on Coercive Population Control Policies, then thedecision code "CPG" must be selected.If you have questions or require further clarification, please contact your Senior Panel Attorney or TeamLeader.Additionally, if you or your supervisor has questions about this guidance, please consult Senior LegalAdvisor Amy Minton, who serves as our primary point of contact on Background and Security Check rulecase issues.5
FURTHER ORDER: The respondent's removal proceedings are canceled under to section 240A(a) of the Immigration and Nationality Act. Reminder: There is a statutory annual cap on the number of grants of non-LPR cancellation ofremoval under section 240A(b) of the Act and former suspension of 3
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