Virginia Lawyers Weekly VA Lawyers Weekly
Where a regulation requires the Department of Homeland Security, or DHS, to notify an applicant of the need to provide biometrics, such as photographs and fingerprints; provide the applicant with a biometrics notice; and provide instructions for producing biometrics, the Board of Immigration Appeals, or BIA, erred when it interpreted the regulation in a way that omitted the second requirement.
Background
Katherin Mejia-Velasquez, a native and citizen of Honduras, applied for asylum, withholding of removal and protection under the Convention Against Torture. Because Mejia-Velasquez failed to produce biometrics (such as her photograph, fingerprints and signature) in support of her application, after having been warned of the consequences of failing to do so, the immigration judge or IJ, deemed her application abandoned and ordered her removed to Honduras. The BIA affirmed in a decision dismissing her appeal.
Mejia-Velasquez argues mainly that she did not receive sufficient notice that she was required to provide biometrics, and that the BIA’s decision upholding the notice given in this case relied on its erroneous decision in Matter of D-M-C-P-, 26 I. & N. Dec. 644 (BIA 2015), which misinterpreted the regulation by eclipsing a portion of its requirements.
Analysis
In 8 C.F.R. § 1003.47(d), the DHS must (1) “notify” the applicant of the need to provide biometrics, (2) “provide” the applicant with “a biometrics notice” and (3) “provide” the applicant with “instructions” for providing biometrics. The BIA’s interpretation in Matter of D-M-C-P-, however, requires the DHS to satisfy only the first and the third requirements, omitting the requirement that it provide “a biometrics notice.” In this case, the BIA concluded that, because the DHS had provided Mejia- Velasquez with all of the information required by Matter of D-M-C-P-, the DHS had satisfied the requirements of § 1003.47(d).
The regulation is unambiguous as to the three requirements specified — oral notification, a biometrics notice and instructions. But Matter of D-M-C-P-, when construing the regulation, omitted the requirement for providing applicants with “a biometrics notice.” Accordingly, the BIA’s interpretation of § 1003.47(d) in Matter of D-M-C-P- is not entitled to deference for at least two reasons. First, the regulation is not “genuinely ambiguous” with respect to these requirements. Second, even if the regulation was ambiguous, the BIA’s interpretation is not a reasonable one because it fails to account for a distinct requirement in the regulation.
The government contended at oral argument that, regardless of whether Matter of D-M-C-P- properly interprets § 1003.47, Mejia-Velasquez actually received a biometrics notice in this case because one was provided to her by the IJ at her Feb. 7, 2017 master calendar hearing. That document, entitled “Fingerprint Warning,” contained all the information that could reasonably be contemplated by the regulation’s requirement of “a biometrics notice.” The court concludes that the content of this document was sufficient to constitute “a biometrics notice.”
Mejia-Velasquez contends further, however, that the biometrics notice required by § 1003.47(d) must come in the form of an “appointment notice” from the USCIS Application Support Center that schedules applicants’ appointments for providing biometrics. While this argument might support her criticism of the DHS’s current practice, it does not substantially advance her position that § 1003.47(d) was not satisfied at her February 2017 hearing.
Finally with respect to her first petition for review, Mejia-Velasquez contends that even if she were provided with a biometrics notice satisfying § 1003.47(d), the IJ nonetheless erred in deeming her I-589 application for relief abandoned and the BIA likewise erred in affirming that conclusion and dismissing her appeal. She makes essentially three arguments, none of which the court finds persuasive.
In her second petition for review, Mejia-Velasquez challenges the BIA’s May 27, 2020, order denying her motion to reconsider its Jan. 22, 2020, decision dismissing her application. The court finds no abuse of discretion here. The BIA permissibly found that Mejia-Velasquez failed to identify any legal error, factual error or overlooked arguments in its Jan. 22, 2020 decision.
Petitions for review denied.
Dissenting opinion
Motz, J., dissenting:
Mejia-Velasquez does not deny that she failed to have her fingerprints taken. She argues, however, that DHS failed to fulfill its own obligation to first provide her with a biometrics notice setting a date and time to have her fingerprints taken. I agree that DHS failed to fulfill that obligation and would thus grant the petition for review.
Mejia-Velasquez v. Garland, Case Nos. 20-1192, 20-1628, Feb. 15, 2022. 4th Cir. (Niemeyer), from Board of Immigration Appeals. Evelyn Rose Griggs Smallwood for Petitioner. Rachel Louise Browning for Respondent. VLW 022-2-039. 37 pp.
