Individuals who file applications for relief in removal proceedings before the Executive Office of Immigration Review (EOIR) are required to provide biometrics and other biographical information pursuant to instructions provided by Department of Homeland Security (DHS), Office of Principal Legal Advisor (OPLA), within the time allotted by the immigration judge (IJ). This is pursuant to 8 CFR § 1003.47(c). Failure to comply with the biometrics instructions could constitute abandonment of the application(s) for relief, and the Immigration Judge (IJ) may dismiss the application unless the respondent can show good cause for the failure to comply.

OPLA counsel provides biometrics instructions to respondents in immigration court who have filed or plan to file applications for relief from removal. These biometrics instructions identify the steps the respondent must take to request a biometrics appointment at a USCIS Application Support Center (ASC). According to these instructions, respondents must request a biometrics appointment by submitting a copy of their application for relief (or a portion of it); the required application fee and biometrics fee, if applicable; a Form G-28 if the respondent is represented; and a copy of the biometrics instructions. IJs may order respondents to comply with the biometrics instructions by a certain deadline and require them to submit the request no fewer than 30 days before the merits hearing.

Once the respondent or their representative has submitted the biometrics request, they must wait for USCIS to issue a biometrics appointment notice. However, since the start of 2023, there have been unusually lengthy delays in the receipt of these appointment notices. The American Immigration Lawyers Association (AILA) reported that USCIS recently indicated that there is an increasing backlog of ASC appointments for defensive applications, and that that they are currently processing requests for biometrics that were filed in December 2022 or earlier. Due to this backlog, OPLA attorneys have suggested that practitioners schedule appointments for their clients at USCIS field offices for the submission of biometrics.

Many IJs, however, disagree with this since it would involve the respondent doing more than is required under the DHS biometric instructions. IJs may administratively close cases where respondents have not received a biometrics appointment by the merits hearing and instruct OPLA or the respondent to file a motion to re-calendar once biometrics have been collected. IJs may also continue the case to allow DHS time to schedule a biometrics appointment. Some IJs have moved forward with the merits hearing and reserved their decision on the application(s) until biometrics have been taken. Still others have ordered respondents removed where they had timely submitted their requests for biometrics but had still not received an ASC appointment by the date of the merits hearing. AILA is looking for examples of egregious decisions or actions of EOIR or OPLA when respondents have complied with biometrics instructions but have not received an ASC appointment.

The backlog and its ensuing delays in the scheduling of ASC appointments is out of the control of respondents and their representatives who practiced due diligence in submitting biometrics requests as soon as possible or by the deadline ordered by the IJ. In response to the backlog and the potential for OPLA to shift the blame for the delay to the respondents, practitioners should submit biometrics requests as soon as possible and retain proof of delivery to USCIS via tracking information or a certified mail receipt. If there was avoidable delay in submitting the biometrics request on the part of the respondent or their representative, practitioners may consider making an appointment for biometrics submission at a USCIS local office, via the online appointment request system. It is important to note, however, that although many OPLA offices accept FBI fingerprint cards when considering prosecutorial discretion requests to dismiss proceedings, these FBI prints cannot be used as a substitute for defensive application-related biometrics obtained at ASCs.

If an ASC appointment has not been scheduled for a case and the merits hearing is approaching, practitioners should consider moving for a continuance or for administrative closure to allow for the collection of biometrics. When considering a motion for continuance, however, the respondent’s asylum Employment Authorization Document (EAD) clock should be a factor. If the respondent’s asylum EAD clock has not yet run, and if their biometrics request was submitted timely, it would not be in the respondent’s best interest to request a continuance in advance of the merits hearing, thereby stopping the clock. Practitioners in this situation may instead choose to wait until the merits hearing to state for the record that DHS has still not scheduled a biometrics appointment so that the IJ may be less likely to attribute the delay to the respondent. Practitioners should not file more than one biometrics request per case, as filing multiple requests per case would contribute to the backlog and fail to compel USCIS to issue an appointment notice more quickly.

Lastly, biometrics are only valid for 15 months, and removal proceedings may pend for years. Many respondents comply with biometrics instructions and attend their ASC appointments, but their biometrics expire before their merits hearing. Practitioners should request that OPLA refresh these respondents’ fingerprints pursuant to an agreement between ICE and USCIS. According to this agreement, OPLA must identify cases scheduled for non-detained hearings and, when necessary, attempt to update the fingerprints of individuals from information available to ICE Enforcement and Removal Operations so that respondents need not comply with biometrics instructions more than once.