This comment is dedicated to a special procedure in removal proceedings known as Biometrics appointment in Defensive Asylum cases (known as Fingerprints in various communities).
Background: Defensive v. Affirmative Asylum
There are two ways an asylum case can be processed in the United States: Affirmative Asylum Process or Defensive Asylum Process.
Affirmative Asylum Process
Affirmative Asylum cases are filed with or they are adjudicated by the USCIS ("agency"). Applicant who have filed their application with the agency are in the affirmative asylum process. Applicant who entered the United States through a port on a visa of any kind often file their asylum applications with the agency. Unless Department of Homeland Security has issued and filed a notice to appear ("NTA"), immigration courts do not have jurisdiction over an applicant's case.
Here are few examples to better understand the process:
Example 1:
Applicant A has a 10-year visitor visa to the United States. A then enters United States and is given 6 months of authorized stay. A overstays his visa but the government has not issued or filed a NTA against A. If A would like to like to file an asylum case, A must file with the agency.
Example 2:
Applicant B was apprehended while crossing into the United States without any valid visa or authorization to enter United States. B was given a NTA. B hires a lawyer to represent him before the immigration court. It appears that although B was given a NTA, the government failed to file the NTA with the immigration court. In this instance, B has two options, he can either wait until the government files the NTA with the immigration court-which could take several months or B can file his asylum application with the agency. In either case, B only has 1-year filing deadline to file his asylum application and delay by the government will likely not delay this deadline.
Example 3:
Applicant C, similar to B above, was apprehended and was issued a NTA. Government filed the NTA with the immigration court, thus, C should file his asylum application with the court. If C filed his application with the agency, agency will likely reject this application which could cause serious issues if the 1-year filing deadline has run.
In simple words, unless your case is in court, file your application with the agency.
Defensive Asylum Process
Defensive as the name suggests is an applicant or here Respondent trying to defend against removal from the Untied States. If you are issued a NTA and the NTA was filed in the immigration court, you can file your application in immigration court.
BIOMETRICS (FINGERPRINT PROCESS)
Regardless of where an application's asylum application is lodged--agency or Court--an applicant must provide Biometrics before his final interview date (before the agency) or the merits/individual hearing date (Court).
For affirmative asylum process, agency, almost universally, sends for biometric appointment once the application has been filed with the agency. For Defensive asylum process, however, an applicant must send request for biometric appointment to the agency.
An applicant must send the request in accordance with the biometric instructions as posted by the agency for defensive asylum applicants. Failure to provide biometrics before the individual hearing in Court may result in termination of the asylum case without any testimony or evidence being considered by the judge.
DELAYS CAUSED BY THE AGENCY
Needles to say that it is very important to provide biometrics before the individual hearing in immigration Court. The requests are sent to the agency for biometrics appointment. The agency is taking substantially longer in almost all cases before providing biometric appointments. Although, this delay is caused by the agency, the respondent can be at the receiving end of this delay. Some immigration judges are quite quick to terminate the proceedings in denying relief because respondent failed to provide biometric appointments. These immigration judges do not give any considerations that it is the agency and not the applicant who caused delay in obtaining biometrics. These denials should be appealed.
CONCLUSION
In light of such a harsh penalty, it is imperative to send biometric requests on time. It is also very important to hire a competent legal team and skilled law firm to handle your cases. A minor mistake of not sending in biometric requests can have very devastating impact on an applicants case. Inderraj Singh, Esq., an experienced Immigration Attorney in California, is here to help you and your loved ones get the protections you need and the freedoms enjoyed by everyone else in the United States. Contact us either using our online form or by calling us at 661-599-8884 to schedule a free case assessment. We are here to get you the help you need.
The Singh Law Office—a California Immigration lawyer—can help you protect your important immigration rights before the Court. Inderraj Singh, Esq., aggressively fights for his clients and successfully appeared in immigration courts to protect the interests of his immigrant clients.
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