KANAGASUNDRAM

                                                                Interim Decision #3407




     In re Suseenthera KANAGASUNDRAM, Respondent

                           File A77 478 046 - Elizabeth

                                Decided July 29, 1999

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


     Under the provisions of 

(a)(1) (1999), proceedings against an alien who
has been refused admission under the Visa Waiver Pilot Program and who has applied for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863).

Amiena Khan, Esquire, New York, New York, for respondent

Irene C. Feldman, Assistant District Counsel, for the Immigration and Naturalization Service

Before:   Board Panel: HOLMES, GUENDELSBERGER, and JONES, Board Members.

HOLMES, Board Member:

ORDER:

     PER CURIAM. In a decision dated June 3, 1999, an Immigration Judge
ruled that the Immigration and Naturalization Service had failed to issue a
Notice of Referral to Immigration Judge (Form I-863), as required by 

 (1999). The Immigration Judge terminated proceedings and
certified her decision to the Board pursuant to the provisions of 

 (1999). We will consider this case on certification. 

(c)
(1999). The decision of the Immigration Judge is affirmed.
     The respondent, who now admits that he is a native and citizen of Sri
Lanka, applied for admission at Newark International Airport on March 29,
1999. He sought admission under the Visa Waiver Pilot Program (“VWPP”)
pursuant to section 217 of the Immigration and Nationality Act, 

 (1994 & Supp. II 1996), and presented a valid passport issued to a
national of the Netherlands. The respondent subsequently acknowledged
that the passport was not his own and that he had misrepresented himself as
the person named in the passport. The Service referred the respondent for a
credible fear interview and, thereafter, issued a Notice to Appear (Form I-

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862), charging him with being inadmissible under sections 212(a)(6)(C)
and (7)(A)(i)(I) of the Act, 

(a)(6)(C) and (7)(A)(i)(I) (1994
& Supp. II 1996). Ordinarily an alien inadmissible under sections
212(a)(6)(C) or (7) of the Act is subject to expedited removal. See section
235(b) of the Act, 

(b) (Supp. II 1996); 

(b)(1) (1999). However, the regulations specifically provide that
expedited removal provisions do not apply to those aliens who apply for
admission under section 217 of the Act. See 

(b)(10). As the
respondent applied for admission under section 217 of the Act, the
Immigration Judge concluded that the provisions of 

applied to the respondent. She further ruled that, pursuant to 

, the Service was required to issue a Notice of Referral to Immigration
Judge (Form I-863) in this case, rather than a Notice to Appear.
     The issue presented is whether the Immigration Judge properly determined that the regulations that govern our proceedings mandate that the
respondent in this case be issued a Form I-863, for a proceeding in accordance with the provisions of 

(b)(1) and (2) (1999), rather
than a Notice to Appear. We find that the Immigration Judge’s ruling in this
regard was correct.
     We initially note that the Attorney General has the authority to issue
regulations and that regulations promulgated by the Attorney General have
the force and effect of law as to this Board, the Immigration Judges, and the
Service. See section 103(a)(3) of the Act, 

(a)(3) (Supp. II
1996); 

 (1999); Matter of Anselmo, 

 (BIA
1989); Matter of Torres, 

 (BIA 1986); Matter of
Bilbao-Bastida, 

 (BIA 1966), aff’d, 

 (9th
Cir.), cert. dismissed, 

 (1969); Matter of Tzimas, 

 (BIA 1962). Regulations in effect have the force of law. United
States v. Nixon, 

 (1974); United States ex rel. Accardi
v. Shaughnessy, 

 (1954). Thus, the existing regulations
govern the disposition of this case.
     The Service argues that 

 does not apply to the respondent before us because he is not a national of a VWPP designated country.
See 

(a) (1999). The Service urges that it “has the discretion to apply the provisions of [expedited removal] rather than those of the
VWPP.” However, the provisions of 

 are not limited to
aliens who are actually nationals of VWPP designated countries, but specifically encompass individuals who present fraudulent and counterfeit travel
documents from such countries. The regulations, in relevant part, state:
  An alien who applies for admission under the provisions of section 217 of the Act,
  who is determined by an immigration officer not to be eligible for admission under
  that section or to be inadmissible to the United States under one or more of the grounds
  of inadmissibility listed in section 212 of the Act (other than for lack of a visa), or who
  is in possession of and presents fraudulent or counterfeit travel documents, will be

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   refused admission into the United States and removed. Such refusal and removal . . .
   shall be effected without referral of the alien to an immigration judge for further
   inquiry, examination, or hearing, except that an alien who presents himself or herself
   as an applicant for admission under section 217 of the Act, who applies for asylum in
   the United States must be issued a Form I-863, Notice of Referral to Immigration
   Judge, for a proceeding in accordance with § 208.2(b)(1) and (2) of this chapter.

(a)(1) (emphasis added).1
     Thus, the existing regulations mandate that those aliens who apply for
admission under section 217 of the Act who apply for asylum “must” be
issued a Form I-863 for proceedings in accordance with 

(b)(1) and (2). Moreover, as noted above, 

(b)(10)
specifies that the procedures for expedited removal set forth in 

(b) “do not apply to an applicant for admission under section 217 of
the Act.” As the respondent in the instant case applied for admission under
section 217 of the Act and sought asylum, the Immigration Judge properly
concluded that the Service was required to issue a Notice of Referral to
Immigration Judge, Form I-863, rather than a Notice to Appear, Form I-862.
Accordingly, we affirm the decision of the Immigration Judge ordering the
removal proceedings terminated.




     1
       This regulatory provision was amended subsequent to the decision of the Board in
Matter of H-, 

 (BIA 1992).

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