KANAGASUNDRAM
22 I. & N. Dec. 963 (1999)
Rule of Law:
Under 8 C.F.R. § 217.4(a)(1), proceedings against an alien who applies for admission under the Visa Waiver Pilot Program (VWPP) and subsequently applies for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863), not a Notice to Appear (Form I-862). This requirement applies even if the alien is inadmissible or used fraudulent travel documents.
Facts:
- Suseenthera Kanagasundram is a native and citizen of Sri Lanka.
- On March 29, 1999, Kanagasundram applied for admission at Newark International Airport.
- He sought admission under the Visa Waiver Pilot Program (VWPP) and presented a valid passport issued to a national of the Netherlands.
- Kanagasundram subsequently acknowledged that the passport was not his own and that he had misrepresented himself as the person named in the passport.
- Kanagasundram applied for asylum.
Procedural Posture:
- The Immigration and Naturalization Service (INS) issued Suseenthera Kanagasundram a Notice to Appear (Form I-862).
- An Immigration Judge ruled that the INS had failed to issue a Notice of Referral to Immigration Judge (Form I-863) as required by 8 C.F.R. § 217.4.
- The Immigration Judge terminated the proceedings against Kanagasundram.
- The Immigration Judge certified her decision to the Board of Immigration Appeals pursuant to 8 C.F.R. § 3.7 for review.
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Issue:
Does 8 C.F.R. § 217.4 mandate that an alien who applies for admission under the Visa Waiver Pilot Program and then applies for asylum must be issued a Form I-863, Notice of Referral to Immigration Judge, rather than a Notice to Appear?
Opinions:
Majority - Board Panel (Holmes, Guendelsberger, and Jones)
Yes, the Immigration Judge properly determined that the regulations mandate the issuance of a Form I-863 to an alien who applies for admission under the Visa Waiver Pilot Program and seeks asylum. The Board affirmed the Immigration Judge's ruling, emphasizing that regulations promulgated by the Attorney General have the force and effect of law and govern the disposition of this case, binding the Board, Immigration Judges, and the Service. The Service's argument that 8 C.F.R. § 217.4 does not apply because Kanagasundram was not actually a national of a VWPP designated country was rejected. The Board clarified that § 217.4(a)(1) specifically covers individuals who present fraudulent or counterfeit travel documents from such countries while applying for admission under section 217 of the Act. The regulation explicitly states that such an alien who applies for asylum "must" be issued a Form I-863. Furthermore, 8 C.F.R. § 235.3(b)(10) specifies that expedited removal procedures do not apply to applicants for admission under section 217 of the Act. Therefore, since Kanagasundram applied for admission under section 217 and sought asylum, the Service was required to issue a Form I-863 rather than a Notice to Appear.
Analysis:
This decision by the Board of Immigration Appeals clarifies the mandatory procedural requirements for aliens seeking asylum after attempting entry under the Visa Waiver Pilot Program (VWPP), even in cases involving inadmissibility or fraudulent documents. It reinforces the principle that specific, governing regulations, particularly those established by the Attorney General, override general removal procedures and discretionary interpretations by the Service. The ruling ensures that individuals in this specific category are afforded a formal referral to an Immigration Judge, highlighting a commitment to due process in asylum claims within the VWPP context. This case serves as important precedent regarding the strict application of agency regulations and their binding nature on all subordinate immigration authorities.
