DHS, EOIR and fingerprints – a riddle, wrapped in a mystery, inside an enigma

Sunday, June 13th, 2010
By: Jonathan MontagJ.D.

Aliens seeking benefits from USCIS or the immigration court need to be fingerprinted by USCIS. USCIS provides the service to aliens for the immigration court as well. The immigration judges do not have access to the fingerprint result databases, so ICE must report the results to the immigration judge. An alien in removal proceedings seeking a benefit must be printed. He must arrange it through USCIS, which then places the results in a database that ICE accesses and reports the results to the immigration judge. Such is the marvel of all the executive departments and bureaus responsible for immigration laws and benefits. Curiously, ICE fingerprints people all the time. Aliens in detention seem to be fingerprinted all the time. CBP, which also detains aliens, also fingerprints them. Oddly, these fingerprints do not enter the USCIS database that ICE then taps to report results to the immigration judge. To be clear, DHS fingerprinting by CBP and ICE is routinely done but that printing cannot be reported by ICE to the immigration judge. Only the fingerprints USCIS takes can be reported by ICE to the immigration judge.

If all this is not confusing and illogical enough, fingerprint results expire after 15 months and an alien then needs to be re-fingerprinted if a benefit request is still pending after 15 months. This is because results are stored and valid for 15 months but the prints are not stored. Apparently, there are not as of yet electronic files for aliens to store electronic information and fingerprints are taken electronically. USCIS is working on creating an electronic file for all aliens which will store prints, but this work has been going on or years and there is no indication when it will be done. It is not clear why 15 months is the magic number. Obviously, an alien can commit a crime within 15 months of fingerprinting and before a benefit is granted.

And then there is a final wrinkle. When an alien needs to be re-fingerprinted, there is no uniform procedure for re-fingerprinting. In San Diego, the USCIS district leaders decided that re-fingerprinting can only be accomplished in an immigration court case by the alien requesting re-fingerprinting not more than 90 days before the hearing where a benefit could be granted or 90 days before a deadline an immigration judge sets for re-fingerprinting. Is this the same procedure as in Los Angeles or New York or Atlanta or Miami or …? Probably not. Is there a place to find out what the local re-fingerprinting rules are? No. Are the rules clearly available? No. Do the immigration judges know the local procedure? No. Do the ICE chief counsel, the ICE prosecutors who appear in immigration court to represent ICE in removal proceedings, know the procedure? No. Do attorneys know the procedure? No. I have heard of prominent attorneys trying to get their clients re-fingerprinted by requesting re-fingerprinting in Texas, where initial fingerprint appointments are generated – to no avail. And what happens to an alien who cannot figure out how to be re-fingerprinted? He or she can be, and often is, ordered removed for failing to perfect his application for an immigration benefit because fingerprinting is part of the benefit by regulation.

USCIS, ICE, ICE Chief Counsel, and the immigration judge need to work together to find a uniform re-fingerprinting policy nationwide and make it known to aliens and their attorneys. No matter how arbitrary (like the 90 day rule; note that the regulation at 8 C.F.R. § 1003.47(e) states that printing should be “initiated as promptly as is practicable”), if it is at least known, people can adhere to it.

There is one more wrinkle. If an alien has any criminal record, and I would venture that most aliens in removal proceedings do, the FBI has a database for the alien – the source of what we know from TV police dramas are called “rap sheets.” The rap sheet databases are updated whenever an alien is re-fingerprinted, say for a new arrest or when applying for a real estate agent license or when arrested by ICE or CBP or printed for a benefit by USCIS. These rap sheets are accessible by an identification number as well as by fingerprinting. Thus, if an alien has a rap sheet, the alien’s rap sheet can be updated by the identification number. Re-fingerprinting is not necessary. Instead of an alien in removal proceedings needing to be re-fingerprinted by USCIS so ICE can check the database and report the result to the immigration judge, ICE could simply use the ID number on the old check and check the FBI database. USCIS does this. ICE refuses. Instead, ICE insists on re-fingerprinting through process discussed above that few understand. USCIS must provide resources for re-printing even though it is completely unnecessary. Such is the state of modern law enforcement. I feel safer already.  Posted June 13, 2010.



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