[Federal Register Volume 60, Number 61 (Thursday, March 30, 1995)]
[Proposed Rules]
[Pages 16386-16388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7754]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 /
Proposed Rules
[[Page 16386]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 242
[INS No. 1672-94; AG Order No. 1957-95]
RIN 1115-AD76
Administrative Deportation Procedures for Aliens Convicted of
Aggravated Felonies Who Are Not Lawful Permanent Residents
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to establish alternative administrative
deportation procedures for aliens not admitted for permanent residence
and not eligible for any relief from deportation who have been
convicted of aggravated felonies. This regulation is necessary to
implement a recently enacted statutory measure eliminating the
requirement for a hearing before an immigration judge and limiting
judicial review. While incorporation procedural safeguards, it will
expedite the deportation process in certain cases involving serious
criminal offenses.
DATES: Written comments must be submitted on or before May 30, 1995.
ADDRESSES: Please submit written comments, in triplicate, to the Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, Room 5307, 425 I Street NW., Washington, DC 20536. Attention:
Public Comment Clerk. To ensure proper handling, please reference INS
No. 1672-94 on your correspondence. Comments are available for public
inspection at this location by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Leonard C. Loveless, Detention and
Deportation Officer, Immigration and Naturalization Service, 425 I
Street, NW., Washington, D.C. 20536, Telephone (202) 514-2865.
SUPPLEMENTARY INFORMATION: This proposed rule establishes an expedited
administrative deportation process. Section 130004 of the Violent Crime
Control and Law Enforcement Act of 1994, Public Law 103-322, amended
section 242A of the Immigration and Nationality Act (Act), effective
September 14, 1994, to authorize such a process. Amended section
242A(b) of the Act authorizes the Attorney General to implement a
deportation procedure that eliminates hearings before immigration
judges for certain aliens convicted of serious criminal offenses.
Limited judicial review is authorized upon the filing of a petition for
review within 30 days after the administrative deportation order is
issued. Also, the Immigration and Nationality Technical Corrections Act
of 1994, Public Law 103-416, enacted October 25, 1994, made minor
technical changes to the statutory administrative deportation
procedures.
Before enactment of Public Law 103-322, except in the case of
certain Visa Waiver Pilot Program and crewman violators, deportation
proceedings were required to be conducted before an immigration judge
pursuant to section 242(b) of the Act. By enactment of Public Law 103-
322, Congress provided for a more streamlined deportation process for
an alien who is convicted of an aggravated felony and who is not a
lawful permanent resident. The procedure is available only if the alien
is not eligible for any form of relief from deportation under the Act.
Section 242A(b)(4) requires the Attorney General to prescribe
regulations to conduct proceedings under the section. This proposed
rule authorizes a district director or chief patrol agent to issue a
final administrative order of deportation in accordance with section
242A(b) of the Act.
The proposed rule would require the Service to perform certain
functions to afford the alien procedural protection during the
administrative process:
a. The alien would be given reasonable notice of the charge of
deportability. The notice would set forth allegations of fact and
conclusions of law establishing that the alien is not a lawful
permanent resident, is deportable under section 241(a)(2)(A)(iii) of
the Act (relating to conviction for an aggravated felony), and is
ineligible for relief from deportation.
b. The charge of deportability would be supported by clear,
convincing, and unequivocal evidence, and a record would be maintained
for judicial review.
c. The alien would have an opportunity to be represented by counsel
in the deportation proceedings at no expense to the government.
d. The alien would have a reasonable opportunity to inspect the
evidence and rebut the allegations and/or charge within ten days, with
an extension granted by the district director or chief patrol agent for
good cause shown.
e. The person who renders the final decision would not be the same
person who issues the notice of the Service's intention to issue a
final order (i.e. the charge).
f. The alien would be able to seek review of the final order by
filing a petition for judicial review within 30 days.
During the administrative deportation process, the district direct
or chief patrol agent would determine the alien's custody status in
accordance with applicable provisions of section 242 of the Act. The
alien would be able to seek review of the custody determination in
habeas corpus proceedings.
Section 242(b) of the Act does not apply when the alien is eligible
for relief from deportation under the Act. If the Service finds that
the alien's response presents a prima facie claim of statutory
eligibility for relief, the rule proposes that the district director or
chief patrol agent (or their designee) shall terminate proceedings
under section 242A(b) of the Act, and shall, where appropriate, issue
an order to show cause for the purpose of initiating an immigration
judge proceeding under section 242(b) of the Act.
Limited judicial review of the final administrative deportation
order may be obtained by filing a petition for review in accordance
with section 106 of the Act. The review, however, is statutorily
limited to: (1) Whether the person is in fact the alien described in
the order; (2) whether the person was not lawfully admitted for
permanent residence at the time at which deportation proceedings
commenced; (3) whether the person is not eligible for any relief from
deportation; (4) whether the alien has been convicted of an aggravated
felony and such conviction has become final; and (5) whether the alien
was afforded [[Page 16387]] the procedures required by section
242A(b)(4) of the Act.
Sections 242(a) (2)(A) and (2)(B) of the at require the Service to
detain, until the order is executed, any aggravated felon who has not
been ``lawfully admitted.'' An alien who has been lawfully admitted may
be released from custody if the alien demonstrates to the satisfaction
of the Attorney General that the alien is not a threat to the community
and is likely to appear for any scheduled proceedings. An immigration
judge is not authorized to consider (or redetermine) custody issues
under the rule. The alien may seek review of the bond determination by
filing a writ of habeas corpus with the district court.
Regulatory Flexibility Act
The Attorney General, in accordance with 5 U.S.C. 605(b), certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities because the affected parties are
individual aliens who have been ordered deported from the United
States.
Executive Order No. 12866
This rule is not considered to be a ``significant regulatory
action'' within the meaning of section 3(f) of E.O. 12866, Regulatory
Planning and Review, and the Office of Management and Budget has waived
its review process under section 6(a)(3)(A).
Executive Order No. 12612
This rule is not considered to have Federalism implications
warranting the preparation of a Federalism Assessment in accordance
with section 6 of E.O. 12612.
Executive Order 12606
The Attorney General certifies that she has assessed this rule in
light of the criteria in E.O. 12606 and has determined that this rule
will not have an impact on family formation, maintenance, or general
well-being.
List of Subjects in 8 CFR Part 242
Administrative practice and procedure, Aliens, Deportation.
Accordingly, part 242 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
1. The authority citation for part 242 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252a, 1252b, 1254, 1362; 8 CFR part 2.
2. In part 242, a new Sec. 242.25 is added to read as follows:
Sec. 242.25 Proceedings under section 242A(b) of the Act.
(a) Definitions. As used in this section--
Deciding Service officer means a district director, chief patrol
agent, or his or her designated representative who is not the same
person as the issuing Service officer.
Issuing Service officer means any Service officer listed in
Sec. 242.1(a) as authorized to issue orders to show cause.
Prima facie claim means a claim that, on its face and consistent
with the evidence in the record of proceeding, demonstrates present
statutory eligibility for a specific form of relief from deportation
under the Immigration and Nationality Act (Act).
(b) Preliminary consideration and notice of intent to issue a final
administrative deportation order; commencement of proceedings. (1)
Basis of Service charge. An issuing Service officer shall cause to be
served upon the alien a notice of intent to issue a final
administrative deportation order (Notice of Intent, Form I-851) if he
or she is satisfied that there is evidence sufficient to support a
finding that the individual:
(i) Is an alien;
(ii) Has not been lawfully admitted for permanent residence;
(iii) Has been convicted (as demonstrated by one or more of the
sources listed in Sec. 3.41 of this chapter) of an aggravated felony
and such conviction has become final;
(iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and
(v) Does not appear statutorily eligible for any relief from
deportation under the Act.
(2) Notice. Deportation proceedings under section 242A(b) of the
Act shall commence upon personal service of the Notice of Intent upon
the alien, as prescribed by Sec. 103.5a(a)(2), 103.5a(b), and
103.5a(c)(2) of this chapter. The Notice of Intent shall set forth the
preliminary determinations and inform the alien of the Service's
intention to issue a final administrative order of deportation (Final
Administrative Deportation Order, Form I-851A) without a hearing before
an immigration judge. This notice shall constitute the charging
document. The Notice of Intent shall include allegations of fact and
conclusions of law. It shall advise that the alien:
(i) Has the privilege of being represented by counsel of the
alien's choosing, at no expense to the government, as long as counsel
is authorized to practice in deportation proceedings;
(ii) May inspect the evidence supporting the Notice of Intent; and
(iii) May rebut the charges within ten calendar days after service
of such notice (or thirteen (13) days if service of the Notice was by
mail). The Notice of Intent shall also advise the alien that he or she
may designate in writing, within ten calendar days of service of the
Notice of Intent (or thirteen calendar days if service is by mail), the
country to which he or she chooses to be deported in accordance with
section 243 of the Act, in the event that a Final Administrative
Deportation Order is issued, and that the Service will honor such
designation only to the extent permitted under the terms, limitations,
and conditions of section 243 of the Act.
(c) Alien's response. (1) Time for response. The alien will have
ten calendar days from service of the Notice of Intent, or 13 calendar
days if service is by mail,
(1) To designate his or her choice of country for deportation and
(ii) To submit a written response rebutting the allegations and/or
charge and/or requesting the opportunity to review the government's
evidence. The alien should send his or her designation of country for
deportation, and his or her written response to the charge, to the
deciding Service officer at the address provided in the Notice of
Intent. If the final date for filing falls on a Saturday, Sunday, or
legal holiday, the time shall be extended to the next business day. The
time for response may be extended by the deciding Service officer for
good cause shown in a written request for extension received within the
time to submit a written response. The request must explain
specifically why an extension is necessary. A request for extension of
time for response will not automatically toll the prescribed period
(e.g., ten days) for that response. The alien will be permitted to file
a response outside the prescribed period only if the deciding Service
officer permits it. The alien may, in writing, choose to accept
immediate issuance of a Final Administrative Deportation Order.
(2) Nature of response; request to review evidence. The alien's
written response must indicate which finding(s) are being challenged
and must be accompanied by affidavit(s), documentary information, or
other specific evidence supporting the challenge. if the written
response [[Page 16388]] requests the opportunity to review the
government's evidence, the alien will be served with a copy of the
evidence in the record of proceeding relied on by the government to
support the allegations and/or charge. The alien may, within ten days
following service of the government's evidence (thirteen days if
service is by mail), furnish a final response in accordance with
paragraph (c)(1) of this section. Either the alien's initial written
response or the alien's final response must be accompanied by an
affidavit and a completed and signed application designed for any
relief sought.
(d) Determination by deciding Service officer. (1) No response;
acceptance of Final Administrative Deportation Order. If
(i) A timely response is not received by the deciding Service
officer, or
(ii) The alien accepts immediate issuance of the Final
Administrative Deportation Order, then the deciding Service officer
shall issue and cause to be served upon the alien a Final
Administrative Deportation Order. The determination of deportability
must be supported by clear, convincing, and unequivocal evidence
contained in the record of proceeding.
(2) Response submitted. (i) Insufficient rebuttal; no prima facie
claim or genuine issue of material fact. If the deciding Service
officer finds that the response fails to rebut the allegations and
charge in the Notice of Intent, fails to present a prima facie claim of
relief from deportation under the Act, and fails to raise a genuine
issue of material fact, he or she shall issue and cause to be served
upon the alien a Final Administrative Deportation Order. The
determination of deportability must be supported by clear, convincing,
and unequivocal evidence contained in the record of proceeding.
(ii) Additional evidence required. If the deciding Service officer
finds that the alien's response raises a genuine issue of material fact
regarding the preliminary findings, he or she
(A) May request additional information from any source, including
the alien, as he or she may deem appropriate, or
(B) Issue an order to show cause to initiate deportation
proceedings under section 242(b) of the Act. If the deciding Service
officer considers additional information from a source other than the
alien, that evidence shall be provided to the alien, and the alien may,
within ten days of service thereof (thirteen days if service is by
mail) furnish a response to the deciding Service officer. If, after
considering all additional information, the deciding Service officer
finds that deportation is supported by the requisite proof, he or she
shall issue and cause to be served upon the alien a Final
Administrative Deportation Order.
(iii) Secretary eligibility for relief; conversion to proceedings
under section 242(b) of the Act. If the deciding Service officer finds
that the alien has presented a prima facie claim of present statutory
eligibility for a specific form of relief from deportation, the
deciding Service officer shall terminate the expedited proceedings
under section 242A(b) of the Act, and shall, where appropriate, issue
an order to show cause for the purpose of initiating an immigration
judge proceeding under section 242(b) of the Act.
(3) Termination of proceedings by deciding Service officer. Only
the deciding Service officer may terminate proceedings under section
242A(b) of the Act, in the exercise of his or her discretion.
(e) Proceedings commenced under section 242(b) of the Act. In any
proceeding commenced under section 242(b) of the Act, if it appears
that the respondent's case falls under the provisions of section
242A(b) of the Act, the immigration judge may, upon the Service's
request, terminate the case and, upon such termination, the Service may
commence administrative proceedings under section 242A(b) of the Act.
However, in the absence of any such request, the immigration judge
shall complete the pending proceeding commenced under section 242(b) of
the Act.
(f) Executing final order of deciding Service officer--
(1) Thirty (30) calendar days. Upon the issuance of a Final
Administrative Deportation Order, the Service shall issue a warrant of
deportation issued in accordance with 8 CFR part 243.2; such warrant
shall be executed no sooner than 30 calendar days after the date the
Final Administrative Deportation Order is issued, unless the 30-day
period is waived in writing by the alien. The 72-hour provisions of
Sec. 243.3(b) of this chapter shall not apply.
(2) Place to which deported. The deciding Service officer shall
designate the country of deportation, in the manner prescribed by
section 243(a) of the Act.
(g) Arrest and detention. At the time of issuance of a Notice of
Intent or at any time thereafter and up to the time the alien becomes
the subject of a warrant of deportation, the alien may be arrested and
taken into custody under the authority of a warrant of arrest issued by
an officer listed in Sec. 242.2(c)(1) of this chapter. Pursuant to
section 242(a)(2)(A) of the Act, pending proceedings under section
242A(b) of the Act, the deciding Service officer shall not release an
alien who has not been lawfully admitted. Pursuant to section
242(a)(2)(B) of the Act, the deciding Service officer may release an
alien who has been lawfully admitted based upon factors considered
under Sec. 242.2(h) of this chapter. The decision of the deciding
Service officer concerning custody or bond is not administratively
appealable during proceedings initiated under section 242A(b) of the
Act and this section.
(h) Record of proceeding. A record of proceeding shall be
maintained by the Service for judicial review of the Final
Administrative Deportation Order sought by any petition for review. The
record of proceeding shall include, but not necessarily be limited to,
the charging document (Notice of Intent); the Final Administrative
Deportation Order; the alien's response, if any; all evidence in
support of the charges; and any admissible evidence, briefs, or
documents submitted by either party respecting deportability or relief
from deportation.
Dated: March 16, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-7754 Filed 3-29-95; 8:45 am]
BILLING CODE 4410-01-M
