[Federal Register Volume 62, Number 44 (Thursday, March 6, 1997)]
[Rules and Regulations]
[Pages 10312-10395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5250]
[[Page 10311]]
_______________________________________________________________________
Part II
Department of Justice
_______________________________________________________________________
Immigration and Naturalization Service and Executve Office for
Immigration Review
_______________________________________________________________________
8 CFR Part 1, et al.
Inspection and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules
and Regulations
[[Page 10312]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
Executive Office for Immigration Review
8 CFR Parts 1, 3, 103, 204, 207, 208, 209, 211, 212, 213, 214, 216,
217, 221, 223, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241,
242, 243, 244, 245, 246, 248, 249, 251, 252, 253, 274a, 286, 287,
299, 316, 318, and 329
[INS No. 1788-96; AG ORDER No. 2071-97]
RIN 1115-AE47
Inspection and Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum Procedures
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the regulations of the Immigration
and Naturalization Service (Service) and the Executive Office for
Immigration Review (EOIR) to implement the provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
governing expedited and regular removal proceedings, handling of asylum
claims, and other activities involving the apprehension, detention,
hearing of claims and ultimately the removal of inadmissible and
deportable aliens. This rule incorporates a number of changes which are
a part of the Administration's reinvention and regulation streamlining
initiative.
DATES: Effective date: This interim rule is effective April 1, 1997.
Comment date: Written comments must be submitted on or before July
7, 1997.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS number 1788-96
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: For matters relating to the Executive
Office for Immigration Review--Peggy Philbin, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2400, Falls Church, VA 22041, telephone number (703) 305-0470; for
asylum issues--Michael Shaul, Field Manual Project Office, Immigration
and Naturalization Service, 425 I Street NW, ULLB--4th Floor,
Washington, DC 20536, telephone number (202) 616-7439; for inspections
issues--Linda Loveless, Office of Inspections, Immigration and
Naturalization Service, 425 I Street NW, Room 4064, Washington, DC
20536, telephone number (202) 616-7489; for detention and removal
issues--Len Loveless, Office of Detention and Deportation, Immigration
and Naturalization Service, 425 I Street NW, Room 3008, Washington, DC
20536, telephone number (202) 616-7799.
SUPPLEMENTARY INFORMATION:
Background
The Immigration and Naturalization Service and the Executive Office
for Immigration Review jointly published a proposed rule on January 3,
1997 (62 FR 443-517 (1997)), to implement sections of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
104-208, which was enacted on September 30, 1996. This legislation
significantly amended the Immigration and Nationality Act (Act) by
revising the asylum process and providing a mechanism for the
determination and review of certain applicants who demonstrate a
credible fear of persecution if returned to their own country;
expanding the grounds of inadmissibility; redefining applicants for
admission to include aliens who entered the United States without
inspection; creating new expedited removal procedures for aliens
attempting to enter the United States through fraud or
misrepresentation or without proper documents; consolidating the former
exclusion and deportation proceedings into one unified removal
proceeding; and reorganizing and renumbering numerous provisions of
existing law.
The effective date of most of the provisions affecting asylum,
inspection, and removal processes is April 1, 1997, and implementing
regulations must be in place by March 1, 1997. The proposed rule
allowed only a 30-day comment period. The limited comment period was
necessary, given the short statutory deadline and the time needed to
draft the rule, coordinate with interested agencies, and complete the
regulatory review process by the Office of Management and Budget. In
order to meet the statutory deadline for an implementing regulation and
yet provide adequate opportunity for public input on the issues
addressed in this rulemaking, this rule is being published as an
interim rule with an additional 120-day comment period.
The Department received 124 comments on the proposed rule. Most of
the commenters represented either attorney organizations or voluntary
organizations predominantly involved with refugees and asylum
claimants. Commenters addressed a variety of topics, with much of the
focus on asylum, expedited removal, and voluntary departure. The
Department also received comments from individual members of Congress
and Congressional subcommittees. Since many of the comments were
duplicative or endorsed the submissions of other commenters, they will
be addressed by topic, rather than referencing each specific comment
and commenter. Also, because many of the comments were complex and
dealt with issues that may be better addressed after the Department has
had a period of time to gain operational experience under the new law,
suggestions that were not adopted for the interim period will be
further considered when a final rule is prepared. A number of comments
were received concerning sections of the regulations that were not
specifically changed by the proposed rule, but were simply moved to new
sections. The Department has not addressed these comments at this time,
but will consider them either as part of separate rulemaking
initiatives or as part of the final rule rather than the interim rule,
after the Service and EOIR more closely study the proposals. This
supplementary information will identify significant changes made to the
proposed rule and briefly discuss reasons why many other major
suggestions were not adopted at this time.
Although the Department has addressed the major comments received,
there will be further detailed analysis of these comments, as well as
consideration of the additional comments received during the 120-day
comment period following publication of the interim regulation. This
will ensure every suggestion is more fully explored. Commenters
responding to the interim rule may choose to amend or expand on prior
comments or address other areas not raised by commenters during the
first comment period.
Definitions
Several sections of the statute, such as sections 212(a)(9), 240B,
and 241 of the Act, refer to arriving aliens, even though this term is
not defined in statute. After carefully considering these references,
the Department felt that the statute
[[Page 10313]]
seemed to differentiate more clearly between aliens at ports-of-entry
and those encountered elsewhere in the United States. For clarity,
``arriving alien'' was specifically defined in 8 CFR part 1, and the
Department invited commentary on the proper scope of the regulatory
definition.
One commenter suggested that aliens interdicted in United States
waters should not be included in the definition because persons
arriving in United States waters have already legally arrived in the
United States. The Board of Immigration Appeals (BIA) has consistently
held that the mere crossing into the territorial waters of the United
States has never satisfied the test of having entered the United
States. See Matter of G, 20 I&N Dec. 764 (BIA 1993). Aliens who have
not yet established physical presence on land in the United States
cannot be considered as anything other than arriving aliens. In
addition, the Department has for years relied on interdiction efforts
to stem the flow of inadmissible aliens and attempted illegal entries
by sea. The inclusion of aliens interdicted at sea in the definition of
arriving alien will support the Department's mandate to protect the
nation's borders against illegal immigration. These provisions in no
way alter the Department's current interdiction policy and should not
be construed as to require that all interdicted aliens be brought to
the United States. Only when an express decision is made, in accordance
with existing interdiction policies, to transport an interdicted alien
to the United States, will that alien be considered an arriving alien
for purposes of the Act.
Another commenter suggested that the definition be expanded to
include aliens who have been present for less than 24 hours in the
United States without inspection and admission. The Department
extensively considered this and similar options, such as a distance-
based distinction. For the reasons discussed below relating to the
decision not to apply the expedited removal provisions at this time to
certain aliens who entered without inspection, and considering the
difficulty not only in establishing that the alien entered without
inspection, but also in determining the exact time of the alien's
arrival, the Department continues to believe the position taken in the
proposed rule is correct and will not modify this definition in the
interim rule. The definition of ``arriving alien'' will be given
further consideration in the final rule, however, drawing upon the
experience of the early implementation of the interim rule.
One commenter objected to the inclusion of parolee in the
definition of arriving alien. The definition in the proposed rule
states ``An arriving alien remains such even if paroled pursuant to
section 212(d)(5) of the Act.'' The inclusion of paroled aliens was
based on the statutory language in section 212(d)(5) of the Act, which
states ``* * * but such parole of such alien shall not be regarded as
an admission of the alien and when the purposes of such parole shall,
in the opinion of the Attorney General, have been served the alien
shall forthwith return or be returned to the custody from which he or
she was paroled and thereafter his case shall continue to be dealt with
in the same manner as that of any other applicant for admission to the
United States.'' Existing regulations at Sec. 212.5(d) relating to
termination of parole echo this provision, stating ``* * * he or she
shall be restored to the status he or she had at the time of parole.''
The Department feels there is solid statutory basis for inclusion of
certain paroled aliens in the definition of arriving alien, and so will
retain this provision.
The Department has added two additional definitions for the sake of
clarity. The term ``Service counsel'' has been added to clarify that
although the term refers to any immigration officer designated to
represent the Service before the Immigration Court or the BIA. Existing
regulations interchangeably use this term and a variety of other terms,
including trial attorney, district counsel and assistant district
counsel. The term ``aggravated felony'' has also been defined by
reference to section 101(a)(43) of the Act as amended by IIRIRA. The
regulatory definition clarifies that the amended section 101(a)(43)
applies to any proceeding, application, custody determination or
adjudication.
Parole of Aliens
This interim rule modifies Sec. 212.5(a) to comport with the
statutory change made by IIRIRA to section 212(d)(5)(A) of the Act.
Withdrawal of Application for Admission
The proposed rule contains provisions to implement the longstanding
practice used by the Service to permit applicants for admission to
voluntarily withdraw their application for admission to the United
States in lieu of removal proceedings, now included in section
235(a)(4) of the Act. The withdrawal provisions in the proposed rule
were written to conform with rulings of the BIA on withdrawal and with
standard practice in many jurisdictions. Several commenters suggested
that every alien subject to the expedited removal provisions should
automatically be offered the opportunity to withdraw his or her
application for admission prior to the secondary inspection interview.
Permission to withdraw an application for admission is solely at the
discretion of the Attorney General and is not a right of the alien, a
premise that has been consistently upheld by the BIA. Only the Attorney
General may decide whether to pursue removal charges against an alien
who has violated the immigration laws. Withdrawal of application for
admission is only one of several discretionary options that may be
considered by the Service once the facts of the case are known, and so
will not automatically be offered to all aliens subject to expedited
removal.
The Department does, however, share the concern of several
commenters that aliens who may be inadvertently or unintentionally in
violation of the immigration laws or regulations should not be subject
to the harsh consequences of a formal removal order. The Department
also wishes to ensure that the expedited removal provisions and the
discretionary option to permit withdrawal are applied consistently and
fairly throughout the nation. Although not included in the regulations
at this time, the Department intends to formulate policy guidance and
criteria for determining the types of cases in which such permission
should or should not be considered.
Classes Subject to Expedited Removal
The Department requested public comment regarding the appropriate
use of the authority conferred by the statute upon the Attorney General
to expand the class of aliens subject to expedited removal. Most
commenters commended the Department on its decision not to apply at
this time the expedited removal provisions to aliens in the United
States who have not been admitted or paroled and who cannot establish
continuous physical presence in the United States for the previous two
years. At this time, the Department will apply the provisions only to
``arriving aliens,'' as defined in Sec. 1.1(q). The Department
acknowledges that application of the expedited removal provisions to
aliens already in the United States will involve more complex
determinations of fact and will be more difficult to manage, and
therefore wishes to gain insight and experience by initially applying
these new provisions on a more limited and controlled basis.
[[Page 10314]]
The Department does, however, reserve the right to apply the
expedited removal procedures to additional classes of aliens within the
limits set by the statute, if, in the Commissioner's discretion, such
action is operationally warranted. It is emphasized that a proposed
expansion of the expedited removal procedures may occur at any time and
may be driven either by specific situations such as a sudden influx of
illegal aliens motivated by political or economic unrest or other
events or by a general need to increase the effectiveness of
enforcement operations at one or more locations.
Although several commenters suggested that imposition of the
provisions should only occur after publication of a proposed rule
followed by a comment period, the statute does not impose any specific
notice requirement in connection with the Attorney General's
designation under section 235(b)(1)(A)(3), and certainly does not
impose the requirement of a full administrative rulemaking. Indeed,
such a requirement would defeat a major purpose of this provision: to
allow the Attorney General to respond rapidly, effectively, and
flexibly to situations of mass influx or other exigencies. The Attorney
General has elected to exercise this authority in connection with
publication of a notice in the Federal Register (in advance, where
practicable) simply as a matter of sound administration and policy. The
provisions contained in Sec. 235.3(b) of this interim rule will apply
for now only to arriving aliens.
Several commenters suggested that certain classes of individuals,
such as minors, certain nonimmigrant classifications, and aliens
claiming to be lawful permanent residents or U.S. citizens, should not
be subject to expedited removal, or that it should not be applied where
resources or location do not permit optimal inspection conditions. Some
stated that aliens in expedited removal should be entitled to a full
hearing before an immigration judge. The statute is clear that the
expedited removal provisions apply to all aliens inadmissible under
sections 212(a)(6)(C) or (7) of the Act, and that such aliens are not
entitled to further hearing or review with specific limited exceptions.
Although the statute does not require it, the Department has provided
for supervisory review and concurrence on all expedited removal orders.
The statute itself provides for review of a claim to lawful permanent
resident, refugee, or asylee status. In addition, the Department has a
certain amount of prosecutorial discretion provided by statute. It may,
in lieu of instituting removal proceedings, permit an alien to withdraw
his or her application for admission in those cases where there is no
fraudulent intent and the alien is inadmissible only through
inadvertent error or misinformation. There are also discretionary
waivers available in certain cases.
Reorganization of Sec. 235.3(b)(1) and (2)
In order to provide a more logical discussion of the applicability
of the expedited removal provisions and the procedures for applying
them, Sec. 235.3(b)(1) (determination of inadmissibility) and
Sec. 235.3(b)(2) (applicability) as they appeared in the proposed
regulation have been interchanged and revised as discussed below.
Expedited Removal Procedures
Many commenters stated that the provisions in Sec. 235.3(b) were
not sufficiently explicit to ensure that the expedited removal
provisions are fairly and consistently applied. Because most of these
commenters represented organizations primarily concerned with refugee
and asylum issues, we have addressed this topic in detail below in the
section relating to credible fear determinations and claims of asylum
or fear of persecution by aliens subject to expedited removal.
Review of Claim of Status as Lawful Permanent Resident, Asylee, or
Refugee
Several commenters suggested provisions of Sec. 235.3(b)(5) were
not sufficiently clear to provide adequate review of claims by
returning lawful permanent residents, asylees, or refugees who are
subject to expedited removal. Specifically, the commenters asserted
that Sec. 235.3(b)(5)(ii) could be interpreted to imply that an alien
whose claim to lawful permanent residence is verified and is not
granted a discretionary waiver or provided an opportunity through
deferred inspection to present the required documents could be ordered
removed under section 235(b) of the Act. These commenters requested
that Sec. 235.3(b)(5)(iv) of the proposed regulation be amended to
allow that claimed lawful permanent residents, asylees, or refugees
(who the Service has been unable to verify ever was admitted in such
status) be referred directly to removal proceedings under section 240
of the Act.
For the following reasons, these sections of the proposed
regulation will not be changed in the interim rule. Section
235.3(b)(5)(ii) of the proposed regulation relates to those arriving
aliens whose prior admission as a lawful permanent resident has been
verified by the immigration officer by referring to official Service
records. The Department intends that when such a prior admission is
verified, the individual will not be removed under the expedited
removal provisions of section 235(b) of the Act, regardless of the
officer's determination as to the individual's current admissibility
and/or retention of such lawful permanent status. For that reason the
first sentence of Sec. 235.3(b)(5)(ii) sets forth this prohibition.
Since the removal provisions under section 235(b) of the Act are not
available, the only actions left for the examining officer are to:
admit the individual (through the grant of a waiver if need be); defer
inspection to allow the individual to retrieve the appropriate
documents; or place the person in removal proceedings under section 240
of the Act. This process will allow those individuals verified as
having once been admitted as a lawful permanent resident, asylee, or
refugee a full evidentiary hearing in removal proceedings under section
240 of the Act before an immigration judge to address the heavily fact-
based issues of abandonment of status or other issues concerning loss
of status. The language ``may initiate proceedings'' was used here to
indicate that the officer is not required to initiate any proceedings
but may opt to admit the individual into the United States.
As for those individuals claiming to be returning lawful permanent
residents, asylees, or refugees, but who are not verified by the
Service as having ever been admitted in such status, the referral to
the immigration judge in Sec. 235.3(b)(5)(iv) is for the purpose of
allowing the individual to establish such a prior admission in such
status, nothing more. If the individual establishes such a prior
admission, the immigration judge will terminate the expedited removal
order and at that point that person will be in the same position as the
person whose prior admission was verified by the inspecting Service
officer: the Service can admit the individual or contest his or her
current retention of such status in the context of removal proceedings
under section 240 of the Act.
Another commenter contended that it is not appropriate to refer
aliens who are verified as having been admitted or establish that they
were once admitted as lawful permanent residents, asylees, or refugees
to proceedings under section 240 of the Act. Section 235(b)(1)(C) of
the Act states that the Attorney General shall provide regulations for
administrative review of an expedited removal order entered against
``an alien who claims under oath . . .'' to have
[[Page 10315]]
been lawfully admitted as a lawful permanent resident, asylee, or
refugee. The statute provides no further directive as to how aliens who
actually have been admitted in such status are to be processed if, in
fact, the Service believes that such status may no longer be valid. If
that claim is never verified or established before the inspecting
Service officer or an Immigration Judge, the expedited removal order
entered against the alien will be effected and the alien will be
removed from the United States. However, once an alien establishes
admission in such status, it is not inconsistent with the statute for
further proceedings against an alien known to have been lawfully
admitted as a permanent resident, asylee, or refugee to occur in the
context of proceedings under section 240 of the Act. Further, given the
greater interests and ties to the United States normally at stake for
such aliens compared to those arriving without any previous status, the
Department considers it appropriate that verified arriving permanent
residents, asylees, and refugees be accorded the protections inherent
in proceedings under section 240 of the Act.
Review of Claim to U.S. Citizenship
Several commenters stated that while the statute and regulations
provide for review of an expedited removal order of an alien claiming
to be a lawful permanent resident, refugee, or asylee, there is no such
provision for review of a claim to U.S. citizenship. While U.S.
citizens are not subject to the inadmissibility and removal provisions
of the Act and the Department makes every effort to prevent the
inadvertent removal of U.S. citizens, there are approximately 35,000
false claims to U.S. citizenship made every year at ports-of-entry.
Congress recognized this problem in IIRIRA by adding a new ground of
inadmissibility to section 212(a)(6)(C)(ii) of the Act specifically
designating such aliens as inadmissible and subject to the expedited
removal provisions. Existing regulations at Sec. 235.1(b), which have
been in place for many years, place the burden of establishing a claim
to U.S. citizenship on the person seeking entry. Otherwise, that person
is inspected as an alien. To provide an additional level of review and
safeguard against a mistaken determination, the Department will
institute the same procedures contained in Sec. 235.3(b)(5) for persons
who have not been able to establish U.S. citizenship, but who maintain
a claim under oath or under penalty of perjury to be U.S. citizens,
which are used for persons claiming to be lawfully admitted as
permanent residents, refugees, or asylees.
Several commenters stated that the regulations do not provide any
criteria for the detention or release of these individuals. The
provisions of Sec. 235.3(b)(2)(iii) requiring detention of all aliens
subject to the expedited removal provisions and issued a removal order
also apply to persons whose claim to lawful permanent resident,
refugee, asylee, or U.S. citizen status has not been verified. To
clarify that detention is required for these individuals, the interim
rule reiterates this requirement in Sec. 235.3(b)(5)(i).
Filing of an Application for a Refugee Travel Document While Outside
the United States
Several commenters remarked favorably on the proposal to revise 8
CFR part 223 to allow refugees and asylees to apply for refugee travel
documents from outside the United States, after departure from the
United States, under certain very limited circumstances. The Department
proposed this revision with full awareness of the provision in section
208(c)(1) of the Act under which the Attorney General may allow the
alien to travel abroad ``with the prior consent of the Attorney
General.'' Despite the implied language of the statute, the Department
felt that an exception was warranted for those cases where the alien
innocently departed in ignorance of the requirement or, although aware
of the requirement, departed without applying for the document due to
an urgent humanitarian need, such as the impending death of a close
relative. It should be noted that the current regulations only require
that an application be filed before departure, not that the applicant
delay travel until after the application is approved and the document
is received. The Service has always provided the option of allowing the
alien to pick up the document overseas at an American consular post.
A few commenters suggested that the decision whether to accept such
applications not be left to the discretion of the Service. This change
has been made. However, the regulation does not remove the general
requirement that the application be filed before departure, nor does it
intend that the new procedure be viewed as a routine method of
obtaining the document. Although not specifically stated in the
regulation, the Department intends that if it is apparent that the
alien knew of the general requirement and simply chose to ignore it
(e.g., if the alien had previously been issued a refugee travel
document through this ``overseas procedure'' and there was no emergency
necessitating the more recent departure), the director may determine
that favorable exercise of discretionary authority is not warranted.
Accordingly, the regulation provides that the district director having
jurisdiction over the overseas location, or over the inspection
facility in the case of an alien at a port-of-entry, may deny the
application as a matter of discretion.
A few commenters suggested that there be no limit on how long after
departure the application may be filed. Others suggested that the time
limit be shortened from 1 year to 6 months to coincide with the 6 month
time frame in section 101(a)(13)(C) of the Act, which is the period
during which a lawful permanent resident who meets certain other
requirements is not considered to be an applicant for admission.
Another commenter stated that the validity of a refugee travel document
approved under this process should not be limited to 1 year from the
date of the alien's departure from the United States, so long as the
application was filed within 1 year of that departure. The 1-year
limitation was chosen because it is the maximum validity period for
which a document would have been approved had the alien complied with
the requirement of filing prior to departure. Allowing an applicant to
file from outside the United States more than 1 year after departure
would effectively authorize a longer validity period for the person who
failed to comply with the requirement than for one who did. This would
not be appropriate. Likewise, the 6-month period during which a lawful
permanent resident (who meets the other criteria in section 101(a)(13)
of the Act) is not deemed to be seeking admission is not analogous to
that of the stranded refugee, since the refugee is clearly deemed to be
seeking admission. Additionally, 6 months might be too short a time for
the alien who realizes his or her error to file the application and for
the Service to verify eligibility and approve that application. The
Department feels that in those cases where it is proper to allow an
exception from the requirement to file before departure, it is
appropriate that the document be valid for the same length of time as
for the person who complied with that requirement.
Revision of Asylum Procedures
In general, many commenters requested that specific ``step-by-
step'' procedural instructions be placed in the regulations regarding
the interview process at both the secondary inspection stage and the
credible fear
[[Page 10316]]
determination stage. Although a number of these suggestions have been
adopted, others have not. While the Department appreciates both the
necessity for equal and proper treatment of all cases and the
advantages of standardization, it must also recognize that not all
situations are identical and the interviewing officer must be allowed a
certain amount of flexibility in conducting interviews to account for
differences in individual situations.
Convention Against Torture
Many commenters urged that there be express reference in several
parts of the regulation to the non-refoulement obligation under Article
3 of the Convention Against Torture. This article requires a state not
to ``expel, return (`refouler') or extradite a person to another state
where there are substantial grounds for believing that he or she would
be in danger of being subjected to torture.'' This article has been in
effect for the United States since November 1994. Although Article 3 of
the Torture Convention itself is not self-executing, the Attorney
General has sufficient administrative authority to ensure that the
United States observes the limitations on removal required by this
provision. In fact, the Service has received and considered individual
requests for relief under the Torture Convention since November 1994
and has arranged for relief where appropriate. For the present, the
Department intends to continue to carry out the non-refoulement
provision of the Torture Convention through its existing administrative
authority rather than by promulgating regulations. The Service is,
however, developing thorough guidelines to address Article 3 issues and
intends to issue those guidelines soon. These guidelines generally, and
the expedited removal process in particular, will be implemented in
accordance with Article 3.
Prohibitions on Filing Asylum Applications
There were numerous comments on the prohibitions on the filing of
asylum applications in section 208(a)(2) of the Act. Because of the
importance of a decision to deny an alien the right to apply for
asylum, the Department has chosen to adopt the suggestion that only
asylum officers, immigration judges, and the BIA be empowered to make
such determinations. The Department has also made clear that, while the
alien must establish by clear and convincing evidence that he or she
applied within one year of his or her arrival in the United States, the
alien's burden of establishing that one of the exceptions in section
208(a)(2)(D) applies must only be to the ``satisfaction of the Attorney
General.'' The rule also contemplates that the asylum officer or
immigration judge hearing such a case will explore the reasons for the
late filing. Finally, and importantly, the Department has decided to
follow the recommendation that the date of arrival used to determine
the one-year period in section 208(a)(2)(B), consistent with the
effective date of that section, be no earlier than April 1, 1997. Thus,
the first case to which this prohibition could apply would be one filed
on April 2, 1998.
Regarding the changed circumstances exception in section
208(a)(2)(D), the Department has followed the recommendation of
numerous commentators to drop the language limiting this exception, for
purposes of section 208(a)(2)(B), to circumstances that arise after the
one-year period. The Department has also decided to provide a better
definition of this exception by indicating that the definition may
include either changed conditions in the home country or changes in
objective circumstances relating to the applicant in the United States,
including changes in applicable U.S. law, that create a reasonable
possibility that the applicant may qualify for asylum. Because of
inconsistency between the formulation of changed circumstances in
section 208(a)(2)(D) and the formulation in section 240(c)(5)(ii) of
the Act, which permits an alien to file a motion to reopen beyond the
time limit normally applicable to such a motion, the Department has
decided to drop the requirement that, for purposes of the prohibition
in section 208(a)(2)C), such exception may only be raised through a
motion to reopen.
A large number of commenters requested that the Department list
examples of what is meant by extraordinary circumstances within the
meaning of section 208(a)(2)(D) of the Act, and several commenters
suggested examples that they believed were appropriate. Accordingly,
the Department has included such a list in the interim rule. It is
important to bear two points in mind when reviewing the list. First,
the list is not all-inclusive, and it is recognized that there are many
other circumstances that might apply if the applicant is able to show
that but for such circumstances the application would have been filed
within the first year of the alien's arrival in the United States.
Second, the alien still has the burden of establishing the existence of
the claimed circumstance and that but for that circumstance, the
application would have been filed within the year.
Some commenters requested that the Department clarify that failure
to establish changed circumstances or extraordinary circumstances might
bar an applicant from applying for asylum, it does not bar him or her
from applying for withholding of removal. The Department agrees and the
interim rule contains this clarification.
Some commenters objected to the requirement that an alien who meets
the extraordinary circumstances criteria, file the application ``as
soon after the deadline as practicable given those circumstances,''
preferring instead the phrase ``within a reasonable time period given
those circumstances.'' The Department has adopted this suggestion and a
similar formulation for the ``changed circumstances'' exception.
``Asylum-Only'' Hearings
The Department noted a conflict in the proposed rule between the
provisions of Sec. 208.2(b)(1)(i)(C) and Sec. 252.2(b) regarding
crewmembers who are granted landing permits prior to April 1, 1997, and
subsequently become deportable. The former provision would place such
alien in ``asylum-only'' proceedings before the immigration judge,
while the latter would place him or her in regular removal proceedings
under section 240 of the Act. The interim rule corrects this conflict
by specifying that the ``asylum-only'' process applies to those
crewmembers granted landing privileges on or after April 1, 1997. Also,
Sec. 208.2(b)(2) has been expanded to explain the consequences of
failure to appear for an asylum-only hearing and to set forth
conditions and limitations on reopening such proceedings.
Discovery and FOIA Issues
Some commenters expressed concern about the statement in 8 CFR
208.12 that ``[n]othing in this part shall be construed to entitle the
applicant to conduct discovery directed towards the records, officers,
agents, or employees of the Service, the Department of Justice or the
Department of States.'' Specifically, they feared that the provision
would preclude someone from seeking, or excuse the Service from
providing, information under the Freedom of Information Act (FOIA).
This fear is totally groundless. FOIA provisions are covered under
separate statutory and regulatory bases. The Service is guided by 5
U.S.C. 522 and 8 CFR 103 with regard to FOIA matters, neither of which
are in any way affected by this rulemaking.
[[Page 10317]]
Persecution for Illegal Departure or Applying for Asylum
Several commenters objected to the proposed elimination of
Sec. 208.13(b)(2)(ii) and Sec. 208.16(b)(4), which require asylum
officers and immigration judges to give ``due consideration'' to
evidence that the government of the applicant's country of nationality
or last habitual residence persecutes its nationals or residents if
they leave the country without authorization or seek asylum in another
country. These commenters interpreted this change to mean that the
Department does not wish to consider seriously such evidence or to
grant asylum or withholding to persons who are at risk of punishment
for illegal departure from their countries or for applying for asylum
abroad. This is not the case. The Department and the United States
Government continue to deplore and oppose certain countries' practice
of severely punishing their citizens for illegal departure or for
applying for asylum in another country. The Department also
acknowledges that persons who face severe punishment for such acts may
continue to qualify for asylum or withholding of removal. However, the
regulation at issue did not clearly implement this policy. First, it
requires only that asylum officers and immigration judges give ``due
consideration'' to evidence of such practices; this is a vague and
indefinite standard. Second, it obliges adjudicators to consider
evidence of whether a country ``persecutes'' its nationals for such
actions. Such language begs the very question that an adjudicator must
answer in deciding such a case: Does the alleged punishment amount to
persecution? It is well-established that not all punishment for illegal
departure constitutes persecution. See, e.g., Sovich v. Esperdy, 319 F.
2d 21 (2d Cir. 1963); Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978).
However, in some cases, it may. Such a question must be resolved on a
case-by-case basis. Thus, rather than continue to have an ambiguous
regulation on this issue, the Department believes its adjudicators
should apply the same standards to these cases as they would to any
other case in which the applicant claims a fear that derives from
governmental prosecution. This is best accomplished by removing the
provisions in question from the regulations.
Exception to the Prohibition on Withholding of Deportation in Certain
Cases
Several commenters objected to the proposed rule's limitation in
Sec. 208.16(c)(3) on those aliens who may be eligible for relief under
section 243(h)(3) of the Act, as amended by Pub. L. 104-132. In
particular, these commenters object to the notion that the United
States may summarily preclude from eligibility for withholding of
deportation aliens convicted of a particularly serious crime, including
an aggravated felony, without individually considering their cases.
However, it is well established in U.S. law that aliens who have been
convicted of an aggravated felony are mandatorily barred from obtaining
withholding of deportation. See, e.g., Kofa v. INS, 60 F. 3d 1084, 1090
(4th Cir. 1995) (en banc). In the proposed regulation implementing
section 243(h)(3) of the Act, the Department decided, consistent with
the revisions made to the withholding of deportation statute by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, to
make relief under this section available only to those persons
convicted of an aggravated felony who receive an aggregate sentence of
imprisonment of less than 5 years. This proposal is almost entirely
consistent with a recent precedent decision issued by the BIA on this
issue. See Matter of Q-T-M-T-, Int. Dec. 3300 (BIA 1996). Thus, the
Department intends to retain the basic approach in the proposed
regulation. We have only added a sentence providing that an alien
convicted of an aggravated felony shall be presumed to have been
convicted of a particularly serious crime. This minor change renders
the regulation fully consistent with the Board's decision in Matter of
Q-T-M-T-, supra.
Admission of the Spouse and Children of an Asylee
The proposed rule reserved Sec. 208.19 for regulations pertaining
to the admission of the spouse and children of an asylee. This matter
was the subject of a separate proposed rule published July 9, 1996, see
61 FR 35,984 (1996) and the Department had intended to incorporate the
revised regulations into this interim rule. However, because analysis
of the comments to that earlier proposed rule has not been completed,
the Department will instead redesignate the existing regulations at
Sec. 208.21 as Sec. 208.19. The revised regulations on the admission of
the spouse and children of an asylee will be incorporated into the
final regulations, which will be published after the expiration of the
comment period for this interim rule.
Credible Fear Standard
Several commenters urged that we adopt regulatory language
emphasizing that the credible fear standard is a low one and that cases
of certain types should necessarily meet that standard. Since the
statute expressly defines the term ``credible fear of persecution,'' we
have chosen not to provide in the rule a further refinement of this
definition. However, both INS and EOIR will give extensive training to
their officials on the purpose of the credible fear standard and how it
is to be applied to particular cases. The Department believes that such
training will ensure that the standard is implemented in a way which
will encourage flexibility and a broad application of the statutory
standard.
Employment Authorization for Asylum Applicants
Almost all who chose to comment on the Department's position
regarding work authorization for asylum applicants were pleased with
the decision to continue to allow the applicant to apply for an
employment authorization document once the asylum application has been
pending for 150 days. One commenter requested that the 150-day period
be abolished, but that suggestion was not deemed viable, especially in
light of the new statutorily-mandated 6-month minimum time before
granting such authorization contained in section 208(d)(2) of the Act.
The Department has also modified the regulations relating to
employment authorization at Secs. 208.7(a) and 274a.12(a)(8) to ensure
that applicants who appear to an asylum officer to be eligible for
asylum but have not yet received a grant of asylum are able to obtain
employment authorization. Section 208(d)(5)(A)(i) of the Act obliges
the Service, prior to granting asylum, to check the identity of the
applicant ``against all appropriate records or databases maintained by
the Attorney General and by the Secretary of State * * *.'' Such
databases include, among others, the Federal Bureau of Investigation's
(FBI) fingerprint database. At present, the Service initiates such a
fingerprint check at the time it grants asylum; if the check turns up
information that undercuts that decision, asylum is later revoked. The
Service's experience is that the FBI's fingerprint checks often take a
significant period of time to complete. The new statutory requirement
at section 208(d)(5)(A)(i) of the Act thus means that after April 1,
1997, an alien who would otherwise appear to be eligible for asylum may
have to wait for a long period of time before he or she can be granted
asylum or employment authorization. (A similar problem may
[[Page 10318]]
arise in the case of an alien who is determined to be a refugee under
the new language in section 101(a)(42) of the Act but is precluded from
being granted asylum because of the cap in section 207(a)(5) of the
Act.) Such a result is contrary to one of the chief purposes of the
asylum reforms brought about by the regulatory changes of January 1995:
to ensure that bona fide asylees are eligible to obtain employment
authorization as quickly as possible. Thus, consistent with the
authority in section 208(d)(2) of the Act, the Department has decided
to make employment authorization available to asylum applicants who are
recommended for a grant of asylum but have not yet received such grant
of asylum or withholding. An alien may apply for employment
authorization under these provisions as soon as he or she receives
notice of the grant recommendation.
Credible Fear Determinations and Claims of Asylum or Fear of
Persecution by Alien Subject to Expedited Removal
Under the new section 235(b)(1)(A)(ii) of the Act, an alien subject
to expedited removal who indicates an intention to apply for asylum or
who expresses a fear of persecution will be referred to an asylum
officer to determine if the alien has a credible fear of persecution.
Many commenters stated that the regulation in Sec. 235.3 was not
sufficiently detailed in delineating the following procedures for
recognizing and referring arriving aliens who may be genuine refugees
fleeing persecution: disclosures to arriving aliens; conditions of
secondary inspection; use of interpreters; representation during
secondary inspection; written record of proceeding; time and place of
credible fear interview; detention pending a determination of credible
fear; and detention following a determination of credible fear. We will
address these concerns individually.
Disclosures to Arriving Aliens
Many commenters expressed the opinion that all arriving aliens
should be provided with information concerning the credible fear
interview. This contention is based on the language of the statute in
section 235(b)(1)(B)(iv) that states: ``The Attorney General shall
provide information concerning the asylum interview described in this
subparagraph to aliens who may be eligible * * *.'' The commenters'
position is that this requirement is not limited only to aliens who
``are'' eligible, but that all aliens who are suspected of qualifying
for expedited removal ``may'' be eligible, and that the information
should be given before the secondary inspection pre-screening process.
To understand the Service position on this issue, one must
understand the general inspection process. All persons entering the
United States at ports-of-entry undergo primary inspection. U.S.
citizens are exempt from the inspection process, but must nevertheless
undergo an examination to determine entitlement to exemption from
inspection. In FY 96, the Service conducted more than 475 million
primary inspections. During the primary inspection stage, the
immigration officer literally has only a few seconds to examine
documents, run basic lookout queries, and ask pertinent questions to
determine admissibility and issue relevant entry documents. At most
land border ports-of-entry, primary inspection duties are shared with
U.S. Customs inspectors, who are cross-designated to perform primary
immigration inspections. If there appear to be discrepancies in
documents presented or answers given, or if there are any other
problems, questions, or suspicions that cannot be resolved within the
exceedingly brief period allowed for primary inspection, the person
must be referred to a secondary inspection procedure, where a more
thorough inquiry may be conducted. In addition, aliens are often
referred to secondary inspection for routine matters, such as
processing immigration documents and responding to inquiries. While
millions of aliens (almost 10 million in FY 96) are referred to
secondary inspection each year for many reasons, approximately 90
percent of these aliens are ultimately admitted to the United States in
a very short period of time once they have been interviewed and have
established their admissibility.
The secondary officer often does not know if an alien is likely to
be removed under the expedited removal process until he or she has
questioned the alien. Congress, in drafting the expedited removal
provisions, chose to include both section 212(a)(6)(C) and 212(a)(7) of
the Act as the applicable grounds of inadmissibility. The common
perception is that most expedited removal cases will involve obvious
fraudulent documents, or aliens arriving with no documents at all. This
is not necessarily the type of case that most frequently falls within
the provisions of sections 212(a)(6)(C) and (7) of the Act. Section
212(a)(6)(C) of the Act includes ``any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to
procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this Act * * *,'' as
well as aliens who falsely represent themselves to be citizens of the
United States. In addition to the presentation of fraudulent documents,
the falsity of which may not be verified until a thorough examination
has been conducted, the fraud and misrepresentation referenced in this
section may include falsehoods told by the alien concerning his or her
admission or other misrepresentations told to Government officials now
or in the past.
Section 212(a)(7) of the Act, in addition to covering a lack of
valid documents (including expired or incorrect visas or passports),
also encompasses the alien ``who is not in possession of a valid
unexpired immigrant visa.'' Under immigration law, aliens who cannot
establish entitlement to one of the nonimmigrant categories contained
in the Act are presumed to be immigrants, and, if not in possession of
a valid immigrant visa, are inadmissible under section 212(a)(7) of the
Act. The majority of the aliens currently found inadmissible to the
United States fall into this category and will now be subject to
expedited removal. Again, inadmissibility under this ground often
cannot be determined until the secondary inspector has thoroughly
questioned the alien.
To fully advise, prior to any secondary questioning, nearly all
aliens referred to secondary inspection of the expedited removal
procedures and of the possibility of requesting asylum would needlessly
delay the millions of aliens who are ultimately found admissible after
secondary questioning. For almost all of these people, asylum, fear of
persecution, or fear of return is not an issue.
The Service has very carefully considered how best to ensure that
bona fide asylum claimants are given every opportunity to assert their
claim, while at the same time not unnecessarily burdening the
inspections process or encouraging spurious asylum claims. Service
procedures require that all expedited removal cases will be documented
by creation of an official Service file, to include a complete sworn
statement taken from the alien recording all the facts of the case and
the reasons for a finding of inadmissibility. This sworn statement will
be taken on a new Form I-867AB, Record of Sworn Statement in
Proceedings under Section 235(b)(1) of the Act. The form will be used
in every case where it is determined that an alien
[[Page 10319]]
is subject to the expedited removal process, and contains a statement
of rights, purpose, and consequences of the process. Among other
things, it clearly advises the alien that this may be the only
opportunity to present information concerning any fears or concerns
about being removed from the United States, and that any information
concerning that fear will be heard confidentially by another officer.
The final page of the form contains a standard question asking if the
alien has any fear or concern of being removed or of being sent home.
If, during the course of the sworn statement, or at any time in the
process, the alien indicates a fear or concern of being removed, he or
she will be given a more detailed written explanation of the credible
fear interview process prior to being placed in detention pending the
credible fear interview. The Inspector's Field Manual will contain
detailed instructions and guidance to officers to assist them in
recognizing potential asylum claims, and this topic will also be
covered in officer training. Every expedited removal case also
undergoes supervisory review before the alien is removed from the
United States. The Service is confident that these safeguards will
adequately protect potential asylum claimants. To ensure that these
procedures are followed in every expedited removal case, language has
been added to Sec. 235.3(b)(4) outlining the procedures.
Conditions of Secondary Inspection
Numerous commenters indicated that the secondary inspection should
be conducted in private, comfortable rooms, and that no secondary
inspection should take place before an alien has had time to rest (some
commenters suggested 24 hours), eat, and consult with family, friends,
counsel, or other representatives. The commenters also suggest that
aliens should have access to interpreters before and during the
screening process.
At airports, the inspection facilities for the Federal Inspection
Services (FIS), which includes the Service, U.S. Customs Service, the
U.S. Department of Agriculture, and the U.S. Public Health Service, are
provided by the airport authorities. While the Government has input
when new facilities are constructed, the inspection areas, especially
in older airports, simply do not allow for the amenities suggested by
the commenters. The same is true for land border ports, where the
facility is usually provided by the General Services Administration and
overall space is often extremely limited. The Service has always made
every effort to afford as much privacy during sensitive or complex
interviews as conditions allow, and will continue to do so.
As for delaying the secondary interview to allow every alien time
to rest prior to being questioned, the Service again points out that it
conducts more than ten million secondary inspections each year. Most of
those questioned are eager to have their inspection completed as
quickly as possible. The Department has neither the resources nor the
authority to detain all secondary referrals without first conducting a
prompt interview to determine inadmissibility.
Use of Interpreters
The issue of language barriers and the use of interpreters is not
new to the Service. The Service makes use of interpreters whenever
necessary and will continue to do so to ensure that all aliens are
fully apprised of the proceedings against them. The Service currently
uses its own officers, many of whom are bilingual or multilingual,
airport personnel, or telephonic interpretive services when in-person
interpreters are not available. Occasionally, family members or persons
waiting to meet the arriving alien may be allowed to assist in
translation of the interview. The Service will use appropriate means to
ensure that aliens being removed are advised of and understand the
reasons for the removal and the consequences of such removal.
Representation During Secondary Inspection
Several commenters stated that an alien subject to expedited
removal should be able to obtain representation or counsel prior to any
secondary inspection interview. As discussed in the section on
disclosures to aliens in expedited removal, the secondary inspection
officer often does not know that an alien will be subject to expedited
removal until such questioning has taken place, nor will all
determinations of inadmissibility under section 212(a)(6)(C) or (7) of
the Act result in an expedited removal order. Section 292 of the Act
provides that in any removal proceeding before an immigration judge,
the person concerned shall have the privilege of being represented by
counsel, at no expense to the Government. Congress did not amend this
section to include proceedings before an immigration officer. In
addition, while Congress specifically provided for consultation prior
to the credible fear interview, it did not provide for consultation
prior to the immigration inspection and issuance of the order.
Therefore, the Department will retain its interpretation that an alien
in primary or secondary inspection is not entitled to representation,
except where the person has become the focus of a criminal
investigation and has been taken into custody for that purpose.
Written Record of Proceeding
Several commenters expressed concern that there be a complete
record of proceeding to ensure that Service officers are making proper
decisions. As previously explained, an official Service file will be
created on every expedited removal case. The file will include
photographs, fingerprints, copies of any documentary or other evidence
presented or discovered, and a complete written sworn statement. The
sworn statement will record all facts of the case and the alien's
statements. As with all sworn statements taken by the Service, the
alien is required to initial each page and any corrections, and sign
the statement certifying that he or she has read (or had read to him or
her), the statement and that it is true and correct. When necessary,
interpreters will be used. The language added to the regulation at
Sec. 235.3(b)(2) requires that such sworn statement be taken in every
case. Procedures developed for the Inspector's Field Manual also
contain very specific instructions regarding the record of proceeding.
Time and Place of Credible Fear Interview
Several commenters requested that the regulations state where and
when the credible fear interviews will take place. The statute provides
that credible fear interviews may take place either at a port-of-entry
or at other locations that the Attorney General may designate. The
Service intends that most interviews will be conducted at Service
detention facilities, but prefers the flexibility to make adjustments
to this arrangement as the need arises. Therefore, this operational
concern will not be addressed in the regulation. The Service maintains
detention facilities near several major airports such as JFK, Miami,
and Los Angeles, as well as many locations along the southern border
and other sites like Denver, Seattle, and Houston. In circumstances
where the port of arrival is not near a Service detention facility and
it is impractical to transport the alien to a Service facility, the
alien may be detained in other Service-approved detention sites, such
as local or county jails. In these instances an asylum
[[Page 10320]]
officer will travel to the detention site to conduct the interview.
Several commenters suggest that the Service should conduct credible
fear interviews at its local asylum offices whenever possible. The
Service declines to be bound by this suggestion because of the
prohibitive costs involved in transporting aliens, under escort, to and
from detention facilities. However, the Service retains the option to
conduct interviews at places designated for asylum officers.
Similarly, the Service intends that aliens will normally be given
48 hours from the time of arrival at the detention facility, in which
to contact family members, friends, attorneys, or representatives.
During the referral process from the port-of-entry, they will be given
a list of pro bono representatives. This list is provided for the
purpose of consultation prior to the interview, and does not entitle
the alien to formal counsel or representation during the credible fear
interview. The aliens will be given access to a telephone to make such
contacts. Commenters suggest that aliens be given petty cash or be
permitted to make telephone calls at Government expense; however, the
statute that provides for such consultation specifically states that
the consultation shall be at no expense to the Government.
Detention Pending a Determination of Credible Fear
A few commenters stated that the provisions of Sec. 235.3(b)(4) for
detention of aliens awaiting a credible fear determination are too
harsh, and asked that the rule be amended to allow for parole of such
aliens. However, because section 235(b)(1)(B)(iii)(IV) of the Act
requires that an alien in expedited removal proceedings ``shall be
detained pending a final determination of credible fear of persecution
and, if found not to have such a fear, until removed,'' the Department
feels that parole is appropriate only in the very limited circumstances
specified in Sec. 235.3(b)(4). The interim rule has been amended,
however, to clarify that aliens found to have a credible fear will be
subject to the generally applicable detention and parole standards
contained in the Act. Although parole authority is specifically limited
while a credible fear determination is pending under Sec. 235.3(b)(4),
those found to have a credible fear and referred for a hearing under
section 240 of the Act will be subject to the rule generally applicable
to arriving aliens in Sec. 235.3(c). In addition, Sec. 235.3(c) has
been amended to retain detention authority for aliens whose
admissibility will be determined in exclusion proceedings after April
1, 1997.
Review of Credible Fear Determinations
The proposed regulation provides that an alien may receive, upon
request, review by an immigration judge of an asylum officer's finding
of no credible fear. A number of commenters requested that language be
inserted in the interim regulation which presumes that an asylum
officer's finding of no credible fear will be reviewed by an
immigration judge unless the alien desires to abandon the review and
return to his or her home country. If such a suggestion is not adopted,
these commenters request that, at a minimum, language be inserted
requiring that the asylum officer advise the alien of his or her right
to request review of the negative decision and requiring the officer to
ask the alien whether he or she desires such review. The language of
section 235(b)(1)(B)(iii)(III) of the Act clearly provides that the
alien has the obligation to request review of a negative credible fear
determination. The Department notes that Sec. 208.30(e) of the proposed
regulation requires the asylum officer to inquire whether the alien
wishes review of the negative credible fear determination. This
provision is appropriated into Form I-589.
A number of commenters asked that the regulation provide that,
whenever practicable, the credible fear review be conducted in person;
that the alien may be assisted by an attorney or other representative;
and that an interpreter be provided when necessary. Another commenter
stated, however, that no counsel should be allowed in the review of
credible fear determinations; rather, a representative should be
allowed to submit a written statement. The Department recognizes the
concerns raised by these commenters. However, because the proposed
regulation sets forth a procedure for credible fear review that is
consistent with the language of section 235(b)(1)(B)(iii)(III) of the
Act and provides the Attorney General the flexibility to administer
such a procedure, the rule was not changed.
One commenter asserted that the proposed regulation that provides
for an alien who demonstrates a credible fear of persecution to be
placed in removal proceedings under section 240 of the Act is
incorrect. The commenter maintains that IIRIRA contemplates that such
aliens will be limited to an ``asylum only'' hearing with an appeal to
the Board. This portion of the regulation will not be changed in the
interim rule. Section 235(b)(1)(B)(ii) of the Act provides that if an
asylum officer determines that an alien has a credible fear of
persecution, the alien ``shall be detained for further consideration of
the application for asylum. The remainder of section 235(b) of the Act
is very specific as to what procedures should be followed if an alien
does not establish a credible fear. However, the statute is silent as
to the procedures for those who do demonstrate a credible fear of
persecution. Once an alien establishes a credible fear of persecution,
the purpose behind the expedited removal provisions of section 235 of
the Act to screen out arriving aliens with fraudulent documents or no
documents and with no significant possibility of establishing a claim
to asylum has been satisfied. Therefore, the further consideration of
the application for asylum by an alien who has established a credible
fear of persecution will be provided for in the context of removal
proceedings under section 240 of the Act.
Detention Following a Determination of Credible Fear
Numerous commenters stated that aliens who have established a
credible fear of persecution are presumptively eligible for release and
should not be detained unless the government can demonstrate that the
alien poses a danger to the community or a risk of flight. Some stated
that the burden should be on the government to prove that custody is
necessary. Again, the clear language of the statute states that such
aliens shall be detained. The parole provisions of section 212(d)(5) of
the Act provide discretionary authority to the Attorney General to
parole into the United States or from custody only on a case-by-case
basis. The credible fear standard sets a low threshold of proof of
potential entitlement to asylum; many aliens who have passed the
credible fear standard will not ultimately be granted asylum. It should
also be noted, as stated by one commenter, that these aliens are prima
facie inadmissible to the United States. However, the Department
intends, as part of the credible fear interview process, to assess the
eligibility for parole of aliens who have been determined to have a
credible fear. The discretion to release from custody will remain with
the district director on a case-by-case basis.
Effect of Initiation of Removal Proceedings
Several commenters objected to the language in section 239.3
providing that the filing of a notice to appear has no
[[Page 10321]]
effect in determining periods of unlawful presence. These commenters
noted that this section of the regulation could be interpreted to mean
that the period of time a respondent is in removal proceedings is not a
period ``authorized by the Attorney General,'' which would mean that
removal proceedings would not toll the running of time periods for
purposes of the bars to admission in section 212(a)(9)(B) of the Act.
The result, the commenters assert, would be that people would be
compelled to abandon their legitimate claims for relief from removal
because, by pursuing such relief before an immigration judge or on
appeal to the Board, an individual would risk accruing over 180 days in
``unlawful status'' and thereby becoming inadmissible under section
212(a)(9)(B)(i)(I) of the Act. The commenters recommended that either
this language in section 239.2 be deleted or that it be replaced by a
statement that the filing of a notice to appear tolls the period of
unlawful presence.
Upon review, the Department has concluded that the regulation will
be retained without change in the interim rule. Section
212(a)(9)(B)(iv) of the statute is clear that any period of illegal
presence may tolled only in very limited circumstances. This section of
the statute does not include issuance of a charging document among
those circumstances. The Department does not agree that application of
this section will deter aliens from pursuing valid claims for relief in
removal proceedings. The same forms of relief, including asylum and
adjustment of status, remain available in such cases, even after
passage of the 180 day and one year time limits. Similarly,
availability of voluntary departure is unchanged. Further clarification
of the applicability of section 212(a)(9) will be included in a
separate proposed rule which the Service is currently drafting.
Motions to Reopen After Departure From United States
A few commenters recommended that motions to reopen be permitted
after departure and that the Department delete the language in
Sec. 3.2(d) of the proposed rule providing that motions to reopen or
reconsider cannot be made by or on behalf of a person after that
person's departure from the United States. These commenters contend
that this regulation is no longer valid because IIRIRA substituted
former section 106(c) of the Act with new section 242. New section 242
of the Act does not contain the provision of former section 106(c)
barring judicial review of a final order of deportation or exclusion if
the alien departed the United States after issuance of that order. The
commenters assert that if a petition for review of habeas corpus is
successful, the petitioner should be lawfully entitled to reopen his or
her removal case, even though he or she departed from the United
States. They argue that such motions will promote judicial efficiency
and economy.
The Department has decided not to adopt this suggestion and the
interim regulations will not be changed. No provision of the new
section 242 of the Act supports reversing the long established rule
that a motion to reopen or reconsider cannot be made in immigration
proceedings by or on behalf of a person after that person's departure
from the United States.
Departure Constituting Withdrawal of Motion
In the proposed regulation, Sec. 3.2(d) did not provide that
departure from the United States after the filing of a motion to reopen
or a motion to reconsider constitutes a withdrawal of such motion. The
Department has reconsidered the advisability of adjudicating motions to
reopen and reconsider subsequent to an alien's departure from the
United States. The interim regulation retains the long established
principal that any departure subsequent to moving to reopen or
reconsider constitutes a withdrawal of that motion. The Department
believes that the burdens associated with the adjudication of motions
to reopen and reconsider on behalf of deported or departed aliens would
greatly outweigh any advantages this system might render. Further, the
Department is confident that the immigration judge's discretionary
authority to stay the deportation or removal of an alien who has filed
a motion to reopen or reconsider will safeguard an alien from being
inappropriately deported before he is heard on his motion to reopen or
motion to reconsider.
Time and Numerical Limitations on Filing Motions
A number of commenters pointed out that Secs. 3.2(d) and 3.23(b)
subject all parties to time and numerical limits for motions to reopen
in deportation and exclusion proceedings, but apply those limits only
to aliens in removal proceedings. These commenters argue that the same
limitations should apply to all parties in all proceedings.
IIRIRA specifically mandates that ``[a]n alien may only file one
motion to reopen'' in removal proceedings. Congress has imposed limits
on motions to reopen, where none existed by statute before, and
specifically imposed those limits on the alien only. The interim
regulations will not be changed.
One commenter suggested that the time and numerical limitations for
motions to reopen should be broader than changed country conditions, as
provided in Sec. 3.23(b)(4). The commenter asserted that IIRIRA
contains a much broader exception for individuals to apply for asylum
beyond the one year deadline and that it is inconsistent for the
statute to provide these broader exceptions if eligible applicants will
be barred from applying for asylum because of the stricter motion to
reopen standard. As noted earlier, the Department has decided to drop
the requirement that the changed circumstances exception to the one
year filing deadline in section 208(a)(2) of the Act be raised only
through a motion to reopen. The Department also notes that the standard
for reopening an asylum case provided in 8 CFR 3.23(b)(4) is entirely
consistent with the asylum reopening standard provided in IIRIRA.
Retention of September 30, 1996 Cut-Off Date on Filing Certain
Motions
Some commenters indicated that Sec. 3.2(c)(2) does not retain the
September 30, 1996 cut-off date for earlier motions to reopen, while
the proposed section 3.2(b)(2) does retain the July 31, 1996 cut-off
date for earlier motions to reconsider. The commenters point out that
although these dates have passed, they should be retained to ensure the
rights of respondents who submitted timely motions that have not yet
been adjudicated. Since the commenters demonstrate that the cut-off
date in Secs. 3.2(c)(2) and 3.23(b)(1) are not necessarily obsolete
references, those sections are revised in the interim regulation to
retain the appropriate cut-off dates.
Immigration Court Rules of Procedure
One commenter noted that Sec. 3.12 omitted disciplinary proceedings
under Sec. 292.3 from the scope of the rules of Immigration Court
procedure. The commenter correctly noted that no explanation had been
given as to why disciplinary proceedings were omitted from the scope of
the rules. Section 292.3 is currently being revised by EOIR and will
ultimately be moved into 8 CFR 3. It was thought that the disciplinary
proceedings regulations would have been revised and moved into part 3
prior to publication of this interim regulation and that a reference to
Sec. 292.3 would not be necessary. The disciplinary proceedings
regulation, however, is still in progress. The interim
[[Page 10322]]
rule will therefore place the reference to disciplinary proceedings
pursuant to Sec. 292.3 back into Sec. 3.12.
One commenter claimed that Sec. 3.25(b), which allows the
immigration judge to waive a hearing and enter a decision upon a
stipulated request for that order, raises due process concerns because
the provision requiring an immigration judge to determine that the
alien's waiver is voluntary, knowing and intelligent is not an adequate
safeguard. The interim rule does not change this provision. The
requirement that the immigration judge determine if an unrepresented
alien's waiver is voluntary, knowing and intelligent before granting a
stipulated request for an order safeguards against an imprudent waiver
of a formal adjudication on the part of an unrepresented alien.
Further, the request for the order and waiver of the hearing must not
only be stipulated to by both the alien and the Service, but must also
be approved by the immigration judge. If an immigration judge is
confronted with a stipulated request raising due process concerns, he
or she may examine that request in the context of a hearing.
Comments Relating to Removal Hearings Under Section 240 of the Act
Several commenters were concerned with various aspects of the
ordinary removal hearing process. One aspect of the removal process
that received several comments was the method of service of Form I-862,
Notice to Appear. Specifically, commenters were concerned that service
of the notice to appear by regular mail would be inadequate. A few
commenters have assumed that because service by certified mail is not
required in all cases, it will not be used in any case. Both the
statute and the regulations, however, allow for service by regular mail
only when personal service is ``not practicable.'' Moreover, because
the regulatory provisions at issue follow exactly the requirements of
the Act, these provisions have not been changed in the interim rule.
Commenters expressed concern over the provision at Sec. 240.8(d)
that states that it is the alien's burden to establish that mandatory
grounds for denial of any application for relief do not apply. It is
well-settled that an alien bears the burden of establishing eligibility
for relief or a benefit. This provision merely reflects this well-
settled rule. Also, an alien is only required to establish eligibility
by a preponderance of the evidence. This provision has not been changed
in the interim rule.
One commenter expressed concern that Sec. 240.10 of the proposed
regulation does not cross-reference Sec. 236.1(e). Section 236.1(e)
requires that every detained alien be notified that he or she has the
privilege of communication with consular authorities. The commenter
proposed that Sec. 240.10 require the Service to determine whether the
alien is covered by Sec. 236.1(e) and therefore must have an
opportunity to contact the consular officer before a responsive
pleading. The Service is required to comply with this requirement
before commencement of removal proceedings. In the unlikely event that
the Service failed to comply with this requirement, such a procedure
could unduly delay an otherwise routine removal case. Contact with a
consular officer is unlikely to have any bearing on a respondent's
inadmissibility or deportability. The delay in the proceedings and its
attendant cost would generate little substantive benefit for the alien
as a result.
One commenter expressed concern over provisions in Sec. 240.10(g)
implementing section 241(b) of the Act. Those provisions allow the
Attorney General to remove an alien to a country other than as
designated by the alien under certain circumstances. The commenter
suggests a 30-day waiting period for removal from the time the alien is
given notice of the new country of removal. The Service has considered
this suggestion and has decided not to change this provision in the
interim rule. This procedure is not required by the Act, and would
place a significant strain on detention resources.
Another commenter argued that provisions in Sec. 240.7(a) relating
to the admissibility of prior statements in removal proceedings were
unnecessary. Specifically, the commenter was concerned about criminal
pleas resulting in less than a criminal conviction and their effect on
removal proceedings. It is always within the authority of the
immigration judge to assign the statement a proper weight. Moreover,
this provision was carried over from the prior regulations where it
formerly existed at Sec. 242.14(c). Thus, this section has not been
changed in the interim rule.
Several commenters requested that Sec. 240.12(a) of the proposed
regulation include language that was in former Sec. 242.18(a) requiring
that the decision of an immigration judge ``shall include a discussion
of the evidence and findings as to deportability [inadmissibility].''
The commenters assert that such findings and discussion of the evidence
is necessary for the respondent to properly determine whether to file a
motion for reconsideration of that decision or to prepare a notice of
appeal with sufficient specificity to prevent a summary dismissal by
the Board under Sec. 3.1(d)(1)(1-a) of the regulations. The Department
disagrees. The proposed regulation allows for an adequate articulation
of the immigration judge's basis for his or her decision as well as the
underlying reasons for granting or denying the request. The rule
provides sufficient information for the respondent to prepare a notice
of appeal with sufficient specificity to prevent a summary dismissal of
appeal. For these reasons this section has not been changed in the
interim rule.
Other comments regarding procedures are not discussed individually
and have not been adopted in this interim rule. Most recommended
changes to existing procedures or commented on matters which directly
resulted from changes to the law itself. These comments will be
reviewed and considered in greater detail when the final rule is
prepared.
Guardian Ad Litem
In the proposed rulemaking, the Department solicited comments on
the advisability of procedures for appointment of guardians ad litem.
Several thorough and detailed comments were received. Because the issue
is a complex and sensitive one, the Department has decided to further
examine the issue and prepare a separate rulemaking at a later date.
Cancellation of Removal
A number of commenters expressed concern with section 240.20(b) of
the proposed regulation, which states that an application for
cancellation of removal may be filed only with the Immigration Court
after jurisdiction has vested pursuant to section 8 CFR 3.14. Section
3.14(a) provides that jurisdiction vests when a charging document is
filed with the Immigration Court by the Service. The practical concern
raised by the commenters arise if the Service serves Form I-862, Notice
to Appear, on a respondent but does not file it with the Immigration
Court. If the Service does not file a notice to appear which has been
served, a respondent would not have access to the Immigration Court to
obtain forms of relief such as cancellation of removal or adjustment of
status. Moreover, the service of the notice to appear will cut off the
accrual of time in continuous residence or continuous physical presence
for that respondent under new section 240A(d)(1) of the Act. The
commenters proposed that language be added to Sec. 3.14(a) of the
regulation allowing for jurisdiction to vest and
[[Page 10323]]
proceedings to commence when a charging document is filed by the
Service or by a respondent. The commenters added that Sec. 3.14(a)
already permits immigration judges to conduct bond proceedings and
credible fear determinations without a charging document being filed
with the court. Thus, they assert, there is no rational basis to permit
the initiation of those two types of proceedings and not permit an
immigration judge to consider an application for cancellation of
removal after a respondent files a charging document that previously
has been served on the respondent by the Service. The ability to file a
charging document has rested exclusively with the Service for a number
of years, without problem. This portion of the proposed regulation will
not be changed in the interim rule. The issue of the initiation of
removal proceedings lies within the prosecutorial discretion of the
Service. The Service needs to have control over when charging documents
are filed with the Immigration Courts in order to best manage its
administrative resources.
Apprehension, Custody, and Detention of Aliens
The IIRIRA extended the mandatory detention provisions to
additional classes of inadmissible and deportable aliens but provided
an exception for certain witnesses. It also allowed the Attorney
General the option of a transition period for implementation of
mandatory detention. The Service exercised this discretion and
implemented the transition period custody rules on October 9, 1996,
effective for 1 year. This interim rule amends the regulations to
comply with the amended Act by removing the release from custody
provisions for aliens who may no longer be released. These amendments
to the regulations will take effect upon the termination of the
transition period. As for non-criminal aliens, the rule reflects the
new $1,500 minimum bond amount specified by IIRIRA. Despite being
applicants for admission, aliens who are present without having been
admitted or paroled (formerly referred to as aliens who entered without
inspection) will be eligible for bond and bond redetermination.
Several commenters complained that the Service has no national
standards of detention. They stated that policies, practices, and
decisions regarding outside communication are bewildering, arbitrary,
and inconsistent. Consistent with its focus on providing safe, secure,
and humane detention environments, the Service has implemented
detention facility improvements and has set as a goal the accreditation
of each of its facilities. The Krome Service Processing Center (SPC)
has received accreditation with commendation from the Joint Commission
of Healthcare Organizations (JCHO), the most prestigious medical
accreditation that can be awarded. Currently, six SPCs are accredited
by the National Commission on Correctional Health Care (NCCHC), and
accreditation is pending at the remaining three SPCs. The Denver
contract facility is also NCCHC accredited. Six contract facilities
have American Correctional Association (ACA) accreditation and two
others have begun the accreditation process.
Several commenters stated that the Service should require ACA
standards in local detention facilities used. Approximately 46 percent
of the detention space used by the Service is with state and local
facilities. Formal ACA accreditation of a state or local facility is a
matter for the state or local government. The Service could not meet
its detention requirements by using only facilities that have been
formally accredited. The Service has established its own rigorous
inspection program that uses ACA standards for evaluation of a
facility. The Service will not use a facility that fails to pass our
inspection.
Several commenters stated that Sec. 236 of the proposed rule as
written is a reversal of long established procedure that provides that
a noncriminal alien is presumptively eligible for release. The Service
has been strongly criticized for its failure to remove aliens who are
not detained. A recent report by the Department of Justice Inspector
General shows that when aliens are released from custody, nearly 90
percent abscond and are not removed from the United States. The mandate
of Congress, as evidenced by budget enhancements and other legislation,
is increased detention to ensure removal. Accordingly, because the
Service believes that the regulation as written is consistent with the
intent of Congress, the interim rule has not modified the proposed rule
in this regard.
Several commenters noticed a discrepancy between the discussion in
the supplementary information and the substance of Sec. 236.1(c)(5) of
the proposed regulation. The supplementary information stated the
Department's intended approach, and clause (i) of the proposed
regulation was in error. Accordingly, the interim rule removes
paragraph (c)(5)(i) of Sec. 236.1 and renumbers the remaining
paragraphs (c)(5)(ii), (iii), and (iv). The effect of this change is
that inadmissible aliens, except for arriving aliens, have available to
them bond redetermination hearings before an immigration judge, while
arriving aliens do not. This procedure maintains the status quo
regarding release decisions for aliens in proceedings, as discussed in
the supplementary information of the proposed regulation.
One commenter stated that no criminal alien may be released
pursuant to the Transition Period Custody Rules in section 303(b)(3) of
IIRIRA where there is sufficient space to detain the individual alien.
The same commenter stated that it was not the intention of Congress
that EOIR continue to exercise bond redetermination authority under the
Transition Rules. Aside from the classes of aliens covered by the
Transition Rules, however, the basic structure of the Rules is
essentially that of section 242(a)(2) of the Act as it stood prior to
AEDPA, providing for the release of ``lawfully admitted'' criminal
aliens (as well as unremovable criminal aliens), in the exercise of the
Attorney General's discretion, when such aliens can demonstrate the
absence of a danger to the community or a flight risk upon release. The
Department intends to issue a separate proposed rule in the near future
establishing both substantive limitations and procedural safeguards
concerning the release of criminal aliens eligible to be considered for
release under the Transition Rules. Accordingly, the interim rule has
not been modified.
Expedited Deportation Procedures for Aliens Convicted of Aggravated
Felonies Who Are Not Lawful Permanent Residents
The interim rule amends the Service's regulations to comply with
the Act, as amended, by: including aliens who have lawful permanent
residence on a conditional basis under section 216 of the Act as being
subject to expedited administrative deportation procedures; removing
references to prima facie eligibility for relief; and eliminating
references to release from custody, since aliens subject to these
proceedings are now statutorily ineligible for release as a result of
changes to other sections of the Act.
Several commenters addressed the time period for response, the role
of the deciding Service officer, the risk of deporting U.S. citizens or
permanent residents, and other aspects of the procedure. These
procedures were not changed from the regulation as it was written at
Sec. 242.25. These comments were previously addressed when the
regulation was published on August 24, 1995.
[[Page 10324]]
Voluntary Departure and Employment Authorization
The proposed rule outlined how voluntary departure would be handled
at various stages of proceedings. Since new section 240B of the Act and
the corresponding proposed regulations represented a significant
departure from the predecessor provisions for voluntary departure,
public comments regarding the Department's approach to implementation
of this provision were particularly welcomed.
Several commenters wrote in opposition to the language in
Sec. 240.25 providing that ``[t[he Service may attach to the granting
of voluntary departure any conditions it deems necessary to ensure the
alien's timely departure from the United States.'' Many based their
opposition on their contention that the language was ``beyond the scope
of the legislation.'' However, a similar provision already exists in
regulation. The present Sec. 242.5(b) states that ``officers * * * may
deny or grant the application and determine the conditions under which
the alien's departure shall be effected.'' Similarly, current
Sec. 244.1 states that voluntary departure may be authorized ``under
such conditions as the district director shall direct.'' Basically, the
language of the proposed rule merely stated what was already in
regulation. In addition, it is noted that voluntary departure is a
privilege granted by the Service and is not an entitlement to be
claimed by the alien. An alien must establish both that he or she is
statutorily eligible for voluntary departure and that he or she merits
voluntary departure in the exercise of discretion. See Matter of Seda,
17 I&N Dec. 550 (BIA 1980). The ability to attach conditions to a grant
of voluntary departure is necessary to the Service's ability to
consider the request and is fully consistent with the intent of
Congress in enacting section 240B of the Act, which tightens the
previously applicable voluntary departure provisions in order better to
assure actual departure. Therefore, the language will not be changed
for the interim rule.
Several commenters objected to the maximum time limits for
voluntary departure of 120 days prior to completion of removal
proceedings, and 60 days at the completion of removal proceedings.
Those commenters indicated that the statutory language limiting
voluntary departure to 120 and 60 days did not preclude an
interpretation authorizing additional extensions of voluntary departure
in increments of 120 or 60 days. Several commenters, however, wrote in
support of the voluntary departure provisions contained in the proposed
rule. One commenter stated that ``it would be unlawful to extend or
renew voluntary departure beyond the single period of 60 or 120 days
specified in that section.'' Another commenter stated that ``These
changes represent nothing more or less than what has been mandated by
Congress, and there is no basis on which they can be substantively
altered or amended in the promulgation of the interim rule.''
In its proper form, voluntary departure serves several functions.
First, it allows the Service to allocate its enforcement resources more
efficiently through case management. Second, it saves resources by
allowing aliens to depart at their own expense rather than at the
expense of the government. Finally, it benefits the aliens involved by
allowing them to avoid the harsh consequences of a formal order of
removal. Too often, however, voluntary departure has been sought and
obtained by persons who have no real intention to depart. The IIRIRA
was intended as a comprehensive reform of the immigration system and
was specifically designed to curb abuses of voluntary departure. A
reading of the voluntary departure provisions allowing for extensions
of voluntary departure in multiple increments of 120 or 60 days
inconsistent with the purpose of the statute and would be at best
difficult to reconcile with the language of section 240B of the Act.
Prior to IIRIRA, the authority for voluntary departure was found in
section 244(e) of the Act, which contained no time limitation. Now, for
the first time, there are statutory restrictions limiting the time for
which voluntary departure may be authorized. The Conference Report on
H.R. 2202 stated that under section 240B(a) of the Act, ``[p]ermission
to depart voluntarily under this subsection shall not be valid for a
period exceeding 120 days * * *.'' Similarly, the Conference Report
stated that under section 240B(b) of the Act, ``[t]he period for
voluntary departure cannot exceed 60 days * * *. The Department
concludes that the total period, including all extensions, may not
exceed 120 days for voluntary departure granted prior to completion of
proceedings or 60 days for voluntary departure granted at the
conclusion of proceedings.
Several commenters objected to the elimination of employment
authorization for aliens who have been granted voluntary departure.
Several other commenters wrote in favor of the elimination. Prior to
April 1, 1997, voluntary departure was often granted by EOIR and the
Service for extended periods of time. With grants and extensions of
voluntary departure for extended periods of time, it was reasonable to
allow for employment authorization. Now, voluntary departure is limited
to a maximum of 120 days. Moreover, it has long been recognized that
employment provides a magnet that draws aliens to this country.
Voluntary departure provides an opportunity for an alien to complete
the process of departure from the United States and should not be seen
as a new opportunity for employment authorization. Although the
granting of voluntary departure will not, in and of itself, cause any
previously approved employment authorization to be terminated, neither
will the granting of voluntary departure provide a new opportunity to
apply for employment authorization. Therefore, the interim rule will
eliminate the general provision found at Sec. 274a.12(c)(12) for
employment authorization for aliens who have been granted voluntary
departure. Employment authorization will be retained only for
beneficiaries of the Family Unity Program (section 301 of the
Immigration Act of 1990, Pub. L. 101-649).
Several commenters expressed concern about the consequences for
certain abused immigrant spouses and children of lawful permanent
residents with properly filed self-petitions who were granted voluntary
departure and work authorization pending availability of an immigrant
visa. The Department shares the concerns of the commenters and is
looking at how best to address them outside the context of voluntary
departure.
Several commenters objected to the provisions for appeals,
generally stating that the Service could appeal approvals, yet aliens
cannot appeal denials. In Sec. 240.25 (voluntary departure by the
Service), the appeal procedure at paragraph (e) states that a denial of
an application for voluntary departure may not be appealed, but such
denial shall be without prejudice to the alien's right to apply to the
immigration judge in accordance with Sec. 240.26. Section 240.26(g)(1)
(voluntary departure by EOIR) places limitations for appeals only on
the Service, and places none on the alien. Section 240.26(g)(2)
discusses an appeal of a grant or denial of voluntary departure.
Therefore, the appeal procedures in Secs. 240.25(e) and 240.26(g)(1)
and (2) do not allow the Service to appeal approvals while precluding
aliens from appealing denials. In reviewing the comments, however, it
became apparent that the language of 240.26(g) appeared to
[[Page 10325]]
prohibit the Service from appealing a grant of voluntary departure on
the ground that the alien was not eligible for the relief. Any such
implication was unintended, and the language has been corrected to
reflect that both the alien and the Government may appeal issues of
both eligibility and discretion, but that neither may appeal the length
of the voluntary departure period granted by the immigration judge.
One commenter expressed concern about the dangerous intersection
between the voluntary departure time limits and new section
212(a)(9)(B) of the Act, which imposes a 3- to 10-year bar to admission
upon any alien unlawfully present in the United States from 180 days to
more than 1 year. The commenter pointed out that individuals now
granted voluntary departure for extended periods of time for
humanitarian reasons will become unlawfully present after 120 days of
voluntary departure. The commenter stated that if deferred action is to
be the sole avenue of relief, the Service needs to develop policy
guidelines so that district directors will not be afraid to use it to
enable the sick and the dying to receive treatment and to enable their
parents to work for health insurance. The Department acknowledges that
there will be some compelling humanitarian cases for which voluntary
departure cannot be extended. A district director will be able to give
individual consideration for a recommendation for deferred action to
the regional director. If approved by the regional director, employment
authorization may be granted under the provisions of
Sec. 274a.12(c)(14).
Several commenters objected to the provision for revocation found
in Sec. 240.25(f), and stated that revocation of voluntary departure
should require notice and the opportunity to be heard. However, this
provision already exists in the current Sec. 242.5(c), which provides
for revocation of a grant of voluntary departure without notice. The
revocation is an adverse action initiated by the Service; therefore,
personal service of the decision is required in accordance with
Sec. 103.5a(c). However, a notice of intent to revoke will not be
issued. The interim rule will be amended to point out that the
revocation shall be communicated in writing, and shall cite the
statutory basis for revocation.
Several commenters objected to the limits in Sec. 240.26(b)(1) on
grants of voluntary departure under section 240B(a) of the Act,
particularly the requirement that a request for such relief be made at
or before a master calendar hearing, and decided by the immigration
judge within 30 days thereafter. Other commenters stated that these
provisions were confusing.
The regulation has not been changed substantively based on these
comments but has been revised to clarify the applicable time periods.
The revisions make it clear that in order to obtain voluntary departure
from an immigration judge under section 240B(a) of the Act, an alien
must request it prior to or at the master calendar hearing at which the
case is initially calendared for a merits hearing, which is not
necessarily the first master calendar hearing. This ensures that the
alien is not obligated to request voluntary departure at preliminary
stages of the process, before the case is ready to be scheduled for a
merits hearing. The Department believes that this allows sufficient
time for the alien to consider voluntary departure and other options
and to discuss them with counsel. If such requests cannot be resolved
at the master calendar hearing the immigration judge may take an
additional 30 day period in case he or she desires additional time to
consider the voluntary departure request or to complete the processing.
In the event that the alien decides only after the specified master
calendar hearing that he or she wishes to request voluntary departure,
such a request can still be made later, but requires the concurrence of
the Service under Sec. 240.26(b)(2). Finally, even without Service
concurrence, the immigration judge may grant voluntary departure under
section 240B(b) of the Act upon conclusion of the proceeding.
Several commenters objected to the language at
Sec. 240.26(b)(1)(iv) authorizing the grant of voluntary departure by
immigration judges pursuant to section 240B(a) of the Act only if the
alien waives appeal of all issues. The Department believes that
voluntary departure authorized by immigration judges prior to
completion of proceedings should be for the purpose of settling cases
in the interests of economy and justice. If an alien wishes to contest
any issues, the proper forum will be a merits hearing. Once a case
proceeds to a merits hearing and contested issues are settled,
voluntary departure remains a form of relief; however, it may be
authorized only pursuant to the provisions of section 240B(b) of the
Act for voluntary departure granted at the completion of removal
proceedings.
Several commenters wrote that the regulation should provide an
exemption for an alien who would otherwise have a removal order issued
against him or her for failing to depart when the alien, through no
fault of his own, has not obtained travel documents. The regulation
already provides, at Sec. 240.26(b)(3)(ii), that the Service in its
discretion may extend the period within which the alien must provide
such documentation. However, the provision for extension is
discretionary and not an entitlement. The alien in removal proceedings
bears the responsibility to demonstrate eligibility for any relief
requested. The alien is encouraged to work with the government of his
or her home country to obtain a valid passport or other travel
authorization if a travel document is necessary for return to that
country. Failure to obtain necessary travel documentation will leave
the Department no option but to enforce the alternate order of removal.
Several commenters pointed out that in a case involving an alien
who was previously granted voluntary departure and failed to depart,
the proposed regulation correctly reflects the statutory language that
such an alien is not eligible for voluntary departure or relief under
sections 240A, 245, 248, and 249 of the Act. The commenters pointed
out, however, that the proposed regulation fails to include the
statutory requirement that the alien must receive notice of the penalty
for failing to depart. The Department agrees with the commenters, and
will change the language in the interim rule to reflect the requirement
that a voluntary departure order permitting an alien to depart
voluntarily shall inform the alien of the penalties under section
240B(d) of the Act.
Sections 240B(a)(1) and 240B(b)(1)(C) of the statute bar aliens
deportable under section 237(a)(2)(A)(iii) of the Act from voluntary
departure. Because aliens entering without inspection are no longer
considered deportable, however, the statutory bar might be read as
allowing such aliens to obtain voluntary departure despite an
aggravated felony conviction. The statute would thus create the anomaly
of more favorable treatment for aggravated felons who enter without
inspection. The Department does not believe that Congress intended such
an anomaly. In any event, having become aware of the problem, the
Department now exercises its discretion to bar such aliens from
receiving this form of relief.
Finally, several commenters requested clarification regarding the
effect of a motion or appeal to the Immigration Court, BIA, or a
federal court on any period of voluntary departure already granted.
Since an alien granted voluntary departure prior to completion of
proceedings must concede removeability and agree to waive
[[Page 10326]]
pursuit of any alternative form of relief, no such appeal or motion
would be possible in this situation. Regarding post-hearing voluntary
departure, the Department considered several options, but has not
adopted any position or modified the interim rule. The Department has
identified three possible options: no tolling of any period of
voluntary departure; tolling the voluntary departure period for any
period that an appeal or motion is pending; or setting a brief, fixed
period of voluntary departure (for example, 10 days) after any appeal
or motion is resolved. The Department wishes to solicit additional
public comments on these or other possible approaches to this issue so
that it can be resolved when a final rule is promulgated.
Detention and Removal of Aliens Ordered Removed
This rule provides for the assumption of custody during the removal
period, allows detention beyond the period, and provides conditions for
discretionary release and supervision of aliens who cannot be removed
during the period.
Several commenters stated that the wording of the statute provides
for release of noncriminal aliens during the removal period and
suggested that the Service adopt a policy of allowing the alien to
remain at liberty during the 90-day removal period. One commenter
stated that the proposed rule is consistent with the language and
intent of IIRIRA and should be retained in the interim rule. The plain
language of the statute requires that an alien be held in custody
during the 90-day removal period and not be released. Accordingly, the
proposed language is retained in the interim rule.
Several commenters stated that the statute requires release on an
order of supervision after the expiration of the 90-day removal period.
One commenter stated that the proposed rule is consistent with the
language and intent of IIRIRA and should be retained in the interim
rule. Taken together, sections 241(a)(3) and (a)(6) of the Act provide
that any alien who is inadmissible or who is deportable on the grounds
enumerated in paragraph (a)(6) may be detained beyond the removal
period. Additionally, any alien who is a risk to the community or is
unlikely to appear for removal may be detained regardless of the charge
of inadmissibility or deportability. Accordingly, the proposed language
is retained in the interim rule.
Reinstatement of Removal Orders Against Aliens Illegally Reentering
Several commenters suggested that aliens caught illegally
reentering the United States after removal should be provided a hearing
before an immigration judge. They expressed concern that issues such as
identity and the propriety of the earlier removal order would not be
addressed. One commenter argued that new section 241(a)(5) of the Act
was not intended to be a substantive revision of former section 242(f)
of the Act, which also dealt with reinstatement of deportation orders,
but was merely taken from a bill proposing to recodify the Act without
substantive change. One commenter wrote in support of these provisions,
stating that they were consistent with the language and intent of
IIRIRA.
A review of the relevant statutory provisions reveals that a
substantive change was in fact effected in the transition from section
242(f) of the Act to section 241(a)(5) of the Act. Section 242(f) of
the Act provided only that the deportation order was to be reinstated
upon illegal entry. New section 241(a)(5) of the Act provides that the
removal order is reinstated from its original date, but adds the
provision ``and is not subject to being reopened or reviewed.''
The Service has taken steps to ensure the positive identification
of an alien apprehended and removed under this section. In
Sec. 241.8(a)(2), the regulation requires fingerprint identification
before an alien can be removed under section 241(a)(5) of the Act. In
cases where no fingerprints are available and the alien disputes that
he or she was previously removed, the alien will not be removed under
section 241(a)(5) of the Act. Because the process mandated by the
proposed rule adequately addresses the concerns expressed by the
commenters, this provision remains unchanged in the interim rule.
Detention and Removal of Stowaways
Section 241.11 implements section 305 of IIRIRA, defining the
responsibilities for stowaways and costs of detention in the new
section 241 of the Act. All stowaways are deemed to be inadmissible
under the Act and are not entitled to a hearing on admissibility. Those
with a credible fear of persecution may seek asylum in accordance with
8 CFR part 208 in special proceedings before an immigration judge. The
statute is very specific regarding most detention and removal
responsibilities of the carriers.
Several commenters stated that the regulations do not contain a
definition of stowaway. Since IIRIRA added a clear definition of
stowaway in section 101(a)(49) of the Act, the Department saw no need
to repeat the definition in the regulations. One commenter objected to
the 15-day detention period for asylum-seeking stowaways, for which the
owner of the vessel or aircraft bringing the stowaway is obligated for
the costs of detention. As this time frame is mandated by statute in
section 241(c)(3)(A)(ii)(III) of the Act, the Department is bound by
it.
One commenter suggested that the regulation clearly define the
situations where the Service should allow the carrier to remove, by
aircraft, a stowaway who arrived by vessel. The regulation at
Sec. 241.11(c)(1) has been amended to include general circumstances
where the Service might favorably consider such request. These
circumstances will also be more thoroughly addressed in the Inspector's
Field Manual.
One commenter stated that the regulations should define how the
Service will make a determination that the necessary travel documents
for the stowaway cannot be obtained, so as to shift the costs of the
stowaway's detention from the carrier to the Service, as stated in
section 241(c)(3)(A)(ii)(II) of the Act. The Department has not had
sufficient time to consider this issue and so will address it in the
final rule.
Adjustment of Status
Some commenters objected to the policy statement contained in the
proposed rule that amended Sec. 245.1(c)(8) and indicated that, as an
exercise of discretion, the Attorney General would not adjust the
status of arriving aliens ordered removed under section 235(b)(1) of
the Act or in proceedings under section 240 of the Act. Those
commenters believed that such a statement exceeded the Attorney
General's authority by eliminating an immigration benefit that has not
been eliminated by an act of Congress. Other commenters suggested that
the policy statement did not go far enough and that the policy should
be expanded to include all inadmissible aliens in section 240
proceedings, not just arriving aliens. In this interim rule, the
Department will maintain the position taken in the proposed rule. This
position promotes the Department's objective of taking steps to
preserve the integrity of the visa issuance process while preserving
the current additional avenue for review of discretionary denials of
adjustment applications filed by aliens present without inspection and
admission. The Department continues to believe this position is
[[Page 10327]]
consistent with the intent of Congress when it passed IIRIRA.
In response to the commenters who suggested this policy exceeded
the Attorney General's statutory authority, it is noted that section
245 of the Act clearly and unambiguously states that adjustment of
status is a discretionary decision, subject to such regulatory
limitations as the Attorney General may prescribe. The same commenters
stated that aliens who depart using an advance parole authorization and
whose applications are subsequently denied would no longer be able to
renew their adjustment application before an immigration judge.
However, the revisions to Sec. 245.2(a)(5)(ii) contained in the
proposed rule preserved this procedure.
Rescission of Adjustment of Status
The interim rule includes several changes to 8 CFR part 246 that
update obsolete references and bring the regulation into agreement with
the statute. References to special inquiry officer were updated to
refer to immigration judges. References to status of permanent
residence acquired through outdated sections of law, and any related
procedures for special report to Congress, were eliminated. In
Sec. 246.2, the provision that limited the rescission authority of the
district director to cases that had been adjusted under section 245 of
249 or the Act was expanded to include all types of adjustment, thereby
bringing the regulation into accord with the statute. In Sec. 246.6,
the requirements for immigration judges' decisions were changed to
comport with the requirements of immigration judges' decisions found in
Sec. 240.12. The reference to Form I-151 in Sec. 246.9 was removed
because Form I-151 is no longer a valid document.
Elimination of Mexican Border Visitor's Permit
The proposed rule eliminated the Form I-444, Mexican Border
Visitor's Permit, which is issued at land border ports-of-entry along
the United States/Mexico border to Mexican nationals traveling for more
than 72 hours but less than 30 days in duration or for more than 25
miles from the United States/Mexico border but within the five states
of Arizona, California, Nevada, New Mexico, or Texas. The elimination
was proposed because the Form I-444 does not have adequate security
features to deter counterfeiting, and provides no tracking or
enforcement benefits.
One commenter suggested that since the elimination of the Form I-
444 was not mandated by IIRIRA and represented a significant departure
from past procedure, it should be removed from this rule and proposed
in a separate rulemaking. The commenter specifically objected to the
elimination of the time and distance controls imposed on Mexican
nationals inherent in the issuance of the Form I-444. As stated in the
proposed rule, the Service has been unable to demonstrate that there is
any connection between the limits on travel by persons issued Forms I-
444 and immigration violations. Mexican nationals must undergo the same
interview process to obtain a Border Crossing Card (BCC) or
nonimmigrant visa as any other applicant from any other country. New
validity periods have been imposed in recent years on the BCC,
requiring periodic renewal. A Mexican national entering with a BCC
undergoes the same inspection process as any other applicant for
admission and must establish eligibility as a visitor for business or
pleasure upon each entry to the United States. Presently, Mexican
nationals who request entry at a Mexican land border port-of-entry to
travel more than 30 days or beyond the five-state area, and who
establish admissibility as a visitor, are issued Form I-94, Arrival/
Departure Record, and allowed to proceed anywhere in the United States
with no additional restrictions. Mexican BCC holders entering the
United States by air or via the Canadian land border are also admitted
with no restrictions. The elimination of the Form I-444 does not expand
the possible use of the BCC in any way; it merely standardizes the
entry documentation issued. The Department can see no reason to
continue to impose specific controls on Mexican nationals seeking
admission only at Mexican border ports-of-entry, and so accordingly
will retain in the interim rule the elimination of Form I-444 in favor
of more thoroughly documenting entry with Form I-94.
Visa Waiver Pilot Program (VWPP)
The provisions relating to the VWPP in 8 CFR part 217 were included
in the proposed rule primarily as part of the review intended to
streamline and eliminate duplication in Department regulations. In
addition, several changes were made to conform to new statutory
terminology and to include certain new procedures created as a result
of IIRIRA. One commenter expressed concern that there could be
confusion in Sec. 217.4 as to what constitutes fraudulent or
counterfeit documents and that aliens could be removed without the
opportunity for review by an immigration judge. The language in this
section was not changed from what has existed in the regulations for
years. Moreover, aliens applying under the VWPP are, by statute, not
entitled to a hearing before an immigration judge, except on the basis
of an asylum claim. The only change that the proposed rule made to this
provision was that the hearing provided for VWPP asylum claimants is
now more clearly limited to asylum issues only. In addition,
inadmissible VWPP applicants may be temporarily refused permission to
enter the United States, but are not subject to the formal expedited
removal provisions of section 235(b)(1) of the Act.
One commenter objected to several aspects of the amended language
in Sec. 217.6 relating to carrier agreements. Since most of the
language in this section is already contained on the Form I-775, Visa
Waiver Pilot Program Agreement, which is signed by all carriers
participating in the VWPP, much of this section has been removed from
the interim rule. The commenter objected to the elimination of due
process safeguards in allowing termination of agreements by the
Commissioner, with 5 days notice to the carrier, for failure to meet
the terms of the agreement. This is not a new provision. The exact
language has existed in the regulations since at least 1991 and has
also been part of the existing Form I-775 for years, and will be
retained. The definition of round (return) trip ticket has been revised
to conform with terminology used elsewhere in the regulation and
carrier agreement, and to provide for electronic ticketing technology.
Miscellaneous Changes
The proposed rule contemplated removing 8 CFR part 215, Controls of
Aliens Departing from the United States, because it was also contained
in the Department of State regulations. The Department has decided to
retain 8 CFR part 215.
The proposed rule contained Sec. 240.39, which retained material
previously found in Sec. 242.22, and Sec. 240.54, which preserved the
former Sec. 242.23. These sections have been removed from the interim
rule since the subjects are encompassed by Secs. 3.23 and 241.8,
respectively.
One commenter correctly noted that Sec. 216.5(e)(3)(ii) had been
amended to allow an alien in exclusion, deportation, or removal
proceedings to file a petition for waiver only until such time as there
is a final order of deportation or removal. In Sec. 216.5(e)(3),
adjudication of a waiver is based upon the alien's claim of having been
battered or subjected to extreme mental cruelty. The commenter stated
that there is no reason to shorten
[[Page 10328]]
the period allotted for a battered woman and child to file a battered
spouse waiver. The proposed rule change was meant to apply generally to
all aliens filing a petition for a waiver, and was intended to add a
point of finality to the time when the petition could be filed.
Therefore, the interim rule has been amended to clarify the general
applicability to all petitions for waiver. The regulation will permit
filing of a petition for waiver at any time prior to the second
anniversary of obtaining permanent resident status and up to the point
of receiving a final order in exclusion, deportation, or removal
proceedings, which includes any possible Federal court review.
Several commenters were concerned about removing language at
Sec. 204.2(a)(1)(iii)(A) through (C), which dealt with commencement and
termination of proceedings, and exemptions from the general prohibition
against approval of visa petitions filed on the basis of marriages
during proceedings. The language was removed as part of the Service's
streamlining initiative because it was duplicative of language in
Sec. 245.1(c)(8). The interim rule does clarify that in visa petition
proceedings the burden of proof remains on the petitioner to establish
eligibility for the exemption found at section 204(g) of the Act. In
addition, Sec. 204.2(a)(1)(iii) introductory text has been amended
reflecting that Sec. 245.1(c)(8) has been renumbered as
Sec. 245.1(c)(9).
Streamlining, Updating, and Reorganization
Several commenters expressed concern about sections of the
regulation that were identified in the Supplementary Information of the
proposed regulation as being revised solely for the purpose of
streamlining: elimination of unnecessary recitation of statutory
provisions; discussion of procedural matters; elimination of
duplication; or general updating. It is emphasized that these
streamlining changes neither created new requirements nor abolished any
existing ones. Similarly, several comments concerned regulatory
provisions that were simply carried over from the existing regulation,
but relocated to new sections in order to conform with the general
regulatory outline for the affected sections. Although the Department
reviewed these comments, none resulted in further amendments to the
streamlined or reorganized paragraphs. Other commenters proposed
changes to current regulations that are beyond the scope of this
rulemaking. These suggestions will be considered for inclusion in
separate regulations after implementation of IIRIRA.
The Department solicited comments on the general organization and
restructuring contained in the proposed regulation. No comments were
received on this topic. Accordingly, the organizational structure has
not been revised in the interim rule.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that the rule will not have a significant adverse
economic impact on a substantial number of small entities because of
the following factors. This rule affects only federal government
operations by codifying statutory amendments to the Immigration and
Nationality Act primarily regarding the examination, detention, and
removal of aliens from the United States. It affects only individuals
and does not impose any reporting or compliance requirements on small
entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), because it will have a significant economic impact on the federal
government in excess of $100 million. No economic impact is anticipated
for state and local governments. The Service projects significant
increases in detention-related costs due to the provisions of IIRIRA
that mandate the custody of criminal aliens who have committed two or
more crimes involving moral turpitude, aliens convicted of firearms
offenses, and aliens who have been convicted of an aggravated felony.
The type of crime that will qualify as an ``aggravated felony'' has
been greatly expanded under IIRIRA. In addition, all aliens, even non-
criminal aliens, who are subject to a final administrative order of
removal must be held in custody until the alien can be removed from the
United States. If the person is not removed within 90 days he or she
may be released from custody.
The Commissioner has notified Congress pursuant to section 303(b)
of IIRIRA that the Service lacks sufficient space to immediately
implement the mandatory custody provisions. This notification will
delay for 1-year full implementation of the new mandatory custody
provisions. Section 303(b) also provides for an additional 1-year delay
in implementation of the mandatory custody provisions upon a second
certification that space and personnel are inadequate to comply with
the requirement. The Service estimates that the cost to enforce the
requirement to detain all criminal aliens will be at least
$205,000,000. Of that total, personnel costs account for $65,284,000
and include detention and deportation officers ($32,873,000),
investigators ($25,501,000), legal proceedings personnel ($4,968,000),
and administrative support ($1,942,000). Non-personnel requirements are
projected to be at least $139,732,000 and includes increases in bed
space and related alien custody requirements ($82,782,000--funds 3,600
beds @ $63.00 per day), increases in alien travel expenses
($36,000,000--3,600 removals @ $1,000 each), and detention vehicle
expenses ($20,950,000). The Service is currently in the process of
projecting the costs of the IIRIRA requirement that we detain all
aliens with administratively final orders of deportation pending their
removal.
In addition to these detention related costs, the Service estimates
that the expenses for training employees on the provisions of the new
law and the regulations will be $2,977,500. The cost to the Service
related to additional forms or changes needed to current forms is
estimated to be $2,000,000 (until the final list of form requirements
is completed it is not possible to more accurately assess this cost).
Finally, the Department believes there may be some increases needed for
immigration judges to review credible fear determinations made under
section 235(b) of the Act.
The EOIR estimates increases in its costs related to IIRIRA-
mandated immigration judge review of credible fear determinations
(which must be made under stringent time frames) and the prompt
immigration judge review that IIRIRA requires of certain expedited
removal orders entered against aliens claiming to be, lawful permanent
residents, asylees, or refugees. Further, EOIR projects costs
associated with the possible need for an Immigration Court presence at
certain ports-of-entry and additional detention centers, which will
result from the above-mentioned
[[Page 10329]]
credible fear review and expedited removal review process. Also, there
will be costs related to the overall need for an increased Immigration
Court presence at existing Service detention centers to support the
processing of the additional detainees that will result from the
implementation of this rule. Similarly, EOIR anticipates a need for
construction of new Immigration Courts at new detention facilities the
Service may open as a result of this rule's implementation.
Although there are still a number of unknown variables which could
effect the total costs to EOIR to implement its part of the new
expedited removal process and to respond to the increased number of
detained individuals in proceedings under this rule, EOIR estimates
that the total annual cost for EOIR could be as high as $25,000,000. Of
that total, the cost for hiring new immigration judges and legal
support staff is projected to be $21,300,000. The cost for new video
and audio teleconferencing equipment is estimated at $3,000,000.
Training costs are expected to be approximately $400,000. Finally,
forms and other support requirements are estimated to cost $300,000.
Small Business Regulatory Enforcement Fairness Act of 1996
The Department of Justice considers this rule to be a ``major''
rule under the Small Business Regulatory Enforcement Fairness Act of
1996 in view of the projected expenditures for the federal government
as discussed in the preceding section. The Department finds good cause
to make this rule effective on April 1, 1997, in order to meet the
statutory deadline. These rules are essential for the implementation of
the provisions of Title III-A of IIRIRA, which become effective on that
date pursuant to Section 309(a) of IIRIRA.
Executive Order 12612
The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988
This interim rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5, Display of control
numbers.
List of Subjects
8 CFR Part 1
Administrative practice and procedure, Immigration.
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and recordkeeping requirements.
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 207
Administrative practice and procedure, Refugees, Reporting and
recordkeeping requirements.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 209
Aliens, Immigration, Refugees.
8 CFR Part 211
Immigration, Passports and visas, Reporting and recordkeeping
requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 213
Immigration, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens.
8 CFR Part 216
Administrative practice and procedure, Aliens.
8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
8 CFR Part 221
Aliens, Surety bonds.
8 CFR Part 223
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 232
Aliens, Public health.
8 CFR Part 233
Administrative practice and procedure, Air carriers, Government
contracts, Travel.
8 CFR Part 234
Air carriers, Aircraft, Airports, Aliens.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 237
Aliens.
8 CFR Part 238
Administrative practice and procedure, Aliens.
8 CFR Part 239
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 243
Administrative practice and procedure, Aliens.
8 CFR Part 244
Administrative practice and procedure, Aliens.
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 246
Administrative practice and procedure, Aliens, Immigration.
[[Page 10330]]
8 CFR Part 248
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 249
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 251
Air carriers, Aliens, Crewmen, Maritime carriers, Reporting and
recordkeeping requirements.
8 CFR Part 252
Air carriers, Airmen, Aliens, Crewmen, Maritime carriers, Reporting
and recordkeeping requirements.
8 CFR Part 253
Air carriers, Airmen, Aliens, Maritime carriers, Reporting and
recordkeeping requirements, Seamen.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 286
Air carriers, Immigration, Reporting and recordkeeping
requirements.
8 CFR Part 287
Immigration, Law enforcement officers.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 316
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 318
Citizenship and naturalization.
8 CFR Part 329
Citizenship and naturalization, Military Personnel, Veterans.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 1--DEFINITIONS
1. The authority citation for part 1 is revised to read as follows:
Authority: 8 U.S.C. 1101; 8 CFR part 2.
2. Section 1.1 is amended by revising paragraph (l), and by adding
new paragraphs (q) through (t) to read as follows:
Sec. 1.1 Definitions.
* * * * *
(l) The term immigration judge means an attorney whom the Attorney
General appoints as an administrative judge within the Executive Office
for Immigration Review, qualified to conduct specified classes of
proceedings, including a hearing under section 240 of the Act. An
immigration judge shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe, but shall
not be employed by the Immigration and Naturalization Service.
* * * * *
(q) The term arriving alien means an alien who seeks admission to
or transit through the United States, as provided in 8 CFR part 235, at
a port-of-entry, or an alien who is interdicted in international or
United States waters and brought into the United States by any means,
whether or not to a designated port-of-entry, and regardless of the
means of transport. An arriving alien remains such even if paroled
pursuant to section 212(d)(5) of the Act.
(r) The term respondent means a person named in a Notice to Appear
issued in accordance with section 239(a) of the Act, or in an Order to
Show Cause issued in accordance with Sec. 242.1 of this chapter as it
existed prior to April 1, 1997.
(s) The term Service counsel means any immigration officer assigned
to represent the Service in any proceeding before an immigration judge
or the Board of Immigration Appeals.
(t) The term aggravated felony means a crime (or a conspiracy or
attempt to commit a crime) described in section 101(a)(43) of the Act.
This definition is applicable to any proceeding, application, custody
determination, or adjudication pending on or after September 30, 1996,
but shall apply under section 276(b) of the Act only to violations of
section 276(a) of the Act occurring on or after that date.
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
3. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3
CFR, 1949-1953 Comp., p. 1002.
4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),
(b)(3), (b)(7), (b)(9), and (b)(10) to read as follows:
Sec. 3.1 General authorities.
* * * * *
(b) * * *
(1) Decisions of Immigration Judges in exclusion cases, as provided
in 8 CFR part 240, Subpart D.
(2) Decisions of Immigration Judges in deportation cases, as
provided in 8 CFR part 240, Subpart E, except that no appeal shall lie
seeking review of a length of a period of voluntary departure granted
by an Immigration Judge under section 244E of the Act as it existed
prior to April 1, 1997.
(3) Decisions of Immigration Judges in removal proceedings, as
provided in 8 CFR part 240, except that no appeal shall lie seeking
review of the length of a period of voluntary departure granted by an
immigration judge under section 240B of the Act or part 240 of this
chapter.
* * * * *
(7) Determinations relating to bond, parole, or detention of an
alien as provided in 8 CFR part 236, Subpart A and 8 CFR part 240,
Subpart E.
* * * * *
(9) Decisions of Immigration Judges in asylum proceedings pursuant
to Sec. 208.2(b) of this chapter.
(10) Decisions of Immigration Judges relating to Temporary
Protected Status as provided in 8 CFR part 244.
* * * * *
5. Section 3.2 is amended by:
a. Revising the section heading;
b. Revising paragraph (b)(2);
c. Revising paragraph (c)(2) and (c)(3), and by
d. Revising paragraphs (d) through (g)(1), to read as follows:
Sec. 3.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(b) * * *
(2) A motion to reconsider a decision must be filed with the Board
within 30 days after the mailing of the Board decision or on or before
July 31, 1996, whichever is later. A party may file only one motion to
reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider. In removal
proceedings pursuant to section 240 of the Act, an alien may file only
one motion to reconsider a decision that the alien is removable from
the United States.
(c) * * *
(2) Except as provided in paragraph (c)(3) of this section, a party
may file only one motion to reopen deportation or exclusion proceedings
(whether before the Board or the Immigration Judge) and that motion
must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be
reopened, or on or before September 30, 1996, whichever is later.
Except as provided in paragraph (c)(3)
[[Page 10331]]
of this section, an alien may file only one motion to reopen removal
proceedings (whether before the Board or the Immigration Judge) and
that motion must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the proceeding sought
to be reopened.
(3) In removal proceedings pursuant to section 240 of the Act, the
time limitation set forth in paragraph (c)(2) of this section shall not
apply to a motion to reopen filed pursuant to the provisions of
Sec. 3.23(b)(4)(ii). The time and numerical limitations set forth in
paragraph (c)(2) of this section shall not apply to a motion to reopen
proceedings:
(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1)
or Sec. 3.23(b)(4)(iii)(A)(2);
(ii) To apply or reapply for asylum or withholding of deportation
based on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered, if such evidence
is material and was not available and could not have been discovered or
presented at the previous hearing;
(iii) Agreed upon by all parties and jointly filed. Notwithstanding
such agreement, the parties may contest the issues in a reopened
proceeding; or
(iv) Filed by the Service in exclusion or deportation proceedings
when the basis of the motion is fraud in the original proceeding or a
crime that would support termination of asylum in accordance with
Sec. 208.22(f) of this chapter.
* * * * *
(d) Departure, deportation, or removal. A motion to reopen or a
motion to reconsider shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or removal proceedings
subsequent to his or her departure from the United States. Any
departure from the United States, including the deportation or removal
of a person who is the subject of exclusion, deportation, or removal
proceedings, occurring after the filing of a motion to reopen or a
motion to reconsider, shall constitute a withdrawal of such motion.
(e) Judicial proceedings. Motions to reopen or reconsider shall
state whether the validity of the exclusion, deportation, or removal
order has been or is the subject of any judicial proceeding and, if so,
the nature and date thereof, the court in which such proceeding took
place or is pending, and its result or status. In any case in which an
exclusion, deportation, or removal order is in effect, any motion to
reopen or reconsider such order shall include a statement by or on
behalf of the moving party declaring whether the subject of the order
is also the subject of any pending criminal proceeding under the Act,
and, if so, the current status of that proceeding. If a motion to
reopen or reconsider seeks discretionary relief, the motion shall
include a statement by or on behalf of the moving party declaring
whether the alien for whose relief the motion is being filed is subject
to any pending criminal prosecution and, if so, the nature and current
status of that prosecution.
(f) Stay of deportation. Except where a motion is filed pursuant to
the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the
filing of a motion to reopen or a motion to reconsider shall not stay
the execution of any decision made in the case. Execution of such
decision shall proceed unless a stay of execution is specifically
granted by the Board, the Immigration Judge, or an authorized officer
of the Service.
(g) Filing procedures. (1) English language, entry of appearance,
and proof of service requirements. A motion and any submission made in
conjunction with a motion must be in English or accompanied by a
certified English translation. If the moving party, other than the
Service, is represented, Form EOIR-27, Notice of Entry of Appearance as
Attorney or Representative Before the Board, must be filed with the
motion. In all cases, the motion shall include proof of service on the
opposing party of the motion and all attachments. If the moving party
is not the Service, service of the motion shall be made upon the Office
of the District Counsel for the district in which the case was
completed before the Immigration Judge.
* * * * *
6. The following sentence is added to the end of Sec. 3.4:
Sec. 3.4 Withdrawal of appeal.
* * * Departure from the United States of a person who is the
subject of deportation or removal proceedings, except for arriving
aliens as defined in Sec. 1.1(q) of this chapter, subsequent to the
taking of an appeal, but prior to a decision thereon, shall constitute
a withdrawal of the appeal, and the initial decision in the case shall
be final to the same extent as though no appeal had been taken.
Subpart B--Immigration Court
7. In Part 3, the heading of Subpart B is revised as set forth
above.
8. Section 3.9 is revised to read as follows:
Sec. 3.9 Chief Immigration Judge.
The Chief Immigration Judge shall be responsible for the general
supervision, direction, and scheduling of the Immigration Judges in the
conduct of the various programs assigned to them. The Chief Immigration
Judge shall be assisted by Deputy Chief Immigration Judges and
Assistant Chief Immigration Judges in the performance of his or her
duties. These shall include, but are not limited to:
(a) Establishment of operational policies; and
(b) Evaluation of the performance of Immigration Courts, making
appropriate reports and inspections, and taking corrective action where
indicated.
9. Section 3.10 is revised to read as follows:
Sec. 3.10 Immigration Judges.
Immigration Judges, as defined in 8 CFR part 1, shall exercise the
powers and duties in this chapter regarding the conduct of exclusion,
deportation, removal, and asylum proceedings and such other proceedings
which the Attorney General may assign them to conduct.
10. Section 3.11 is revised to read as follows:
Sec. 3.11 Administrative control Immigration Courts.
An administrative control Immigration Court is one that creates and
maintains Records of Proceedings for Immigration Courts within an
assigned geographical area. All documents and correspondence pertaining
to a Record of Proceeding shall be filed with the Immigration Court
having administrative control over that Record of Proceeding and shall
not be filed with any other Immigration Court. A list of the
administrative control Immigration Courts with their assigned
geographical areas will be made available to the public at any
Immigration Court.
Subpart C--Immigration Court--Rules of Procedure
11. In part 3, the heading of Subpart C is revised as set forth
above.
12. Section 3.12 is amended by revising the last sentence, and
adding a new sentence at the end of the section, to read as follows:
Sec. 3.12 Scope of rules.
* * * Except where specifically stated, the rules in this subpart
apply to matters before Immigration Judges, including, but not limited
to, deportation, exclusion, removal, bond, rescission, departure
control, asylum proceedings, and disciplinary
[[Page 10332]]
proceedings under Sec. 292.3 of this chapter. The sole procedures for
review of credible fear determinations by Immigration Judges are
provided for in Sec. 3.42.
13. Section 3.13 is revised to read as follows:
Sec. 3.13 Definitions.
As used in this subpart:
Administrative control means custodial responsibility for the
Record of Proceeding as specified in Sec. 3.11.
Charging document means the written instrument which initiates a
proceeding before an Immigration Judge. For proceedings initiated prior
to April 1, 1997, these documents include an Order to Show Cause, a
Notice to Applicant for Admission Detained for Hearing before
Immigration Judge, and a Notice of Intention to Rescind and Request for
Hearing by Alien. For proceedings initiated after April 1, 1997, these
documents include a Notice to Appear, a Notice of Referral to
Immigration Judge, and a Notice of Intention to Rescind and Request for
Hearing by Alien.
Filing means the actual receipt of a document by the appropriate
Immigration Court.
Service means physically presenting or mailing a document to the
appropriate party or parties; except that an Order to Show Cause or
Notice of Deportation Hearing shall be served in person to the alien,
or by certified mail to the alien or the alien's attorney and a Notice
to Appear or Notice of Removal Hearing shall be served to the alien in
person, or if personal service is not practicable, shall be served by
regular mail to the alien or the alien's attorney of record.
14. Section Sec. 3.14 is amended by:
a. Revising paragraph (a), and by
b. Adding a new paragraph (c) to read as follows:
Sec. 3.14 Jurisdiction and commencement of proceedings.
(a) Jurisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration Court
by the Service. The charging document must include a certificate
showing service on the opposing party pursuant to Sec. 3.32 which
indicates the Immigration Court in which the charging document is
filed. However, no charging document is required to be filed with the
Immigration Court to commence bond proceedings pursuant to Secs. 3.19,
236.1(d) and 240.2(b) of this chapter.
* * * * *
(c) Immigration Judges have jurisdiction to administer the oath of
allegiance in administrative naturalization ceremonies conducted by the
Service in accordance with Sec. 337.2(b) of this chapter.
15. Section 3.15 is amended by:
a. Revising the section heading;
b. Amending paragraph (b) introductory text and paragraph (b)(6),
by adding the phrase ``and Notice to Appear'' immediately after the
phrase ``Order to Show Cause'';
c. Redesignating paragraph (c) as (d);
d. Adding a new paragraph (c); and by
e. Revising newly redesignated paragraph (d), to read as follows:
Sec. 3.15 Contents of the order to show cause and notice to appear and
notification of change of address.
* * * * *
(c) Contents of the Notice to Appear for Removal Proceedings. In
the Notice to Appear for removal proceedings, the Service shall provide
the following administrative information to the Immigration Court.
Failure to provide any of these items shall not be construed as
affording the alien any substantive or procedural rights.
(1) The alien's names and any known aliases;
(2) The alien's address;
(3) The alien's registration number, with any lead alien
registration number with which the alien is associated;
(4) The alien's alleged nationality and citizenship; and
(5) The language that the alien understands.
(d) Address and telephone number. (1) If the alien's address is not
provided on the Order to Show Cause or Notice to Appear, or if the
address on the Order to Show Cause or Notice to Appear is incorrect,
the alien must provide to the Immigration Court where the charging
document has been filed, within five days of service of that document,
a written notice of an address and telephone number at which the alien
can be contacted. The alien may satisfy this requirement by completing
and filing Form EOIR-33.
(2) Within five days of any change of address, the alien must
provide written notice of the change of address on Form EOIR-33 to the
Immigration Court where the charging document has been filed, or if
venue has been changed, to the Immigration Court to which venue has
been changed.
Sec. 3.16 [Amended]
16. Section 3.16(b) is amended by revising the term ``respondent/
applicant'' to read ``alien''.
Sec. 3.17 [Amended]
17. Section 3.17(a) is amended in the first sentence by revising
the term ``respondent/applicant'' to read ``alien'', and by revising
the phrase ``the appropriate EOIR form'' to read ``Form EOIR-28''.
18. Section 3.18 is revised to read as follows:
Sec. 3.18 Scheduling of cases.
(a) The Immigration Court shall be responsible for scheduling cases
and providing notice to the government and the alien of the time,
place, and date of hearings.
(b) In removal proceedings pursuant to section 240 of the Act, the
Service shall provide in the Notice to Appear, the time, place and date
of the initial removal hearing, where practicable. If that information
is not contained in the Notice to Appear, the Immigration Court shall
be responsible for scheduling the initial removal hearing and providing
notice to the government and the alien of the time, place, and date of
hearing. In the case of any change or postponement in the time and
place of such proceeding, the Immigration Court shall provide written
notice to the alien specifying the new time and place of the proceeding
and the consequences under section 240(b)(5) of the Act of failing,
except under exceptional circumstances as defined in section 240(e)(1)
of the Act, to attend such proceeding. No such notice shall be required
for an alien not in detention if the alien has failed to provide the
address required in section 239(a)(1)(F) of the Act.
Sec. 3.19 [Amended]
19. Section 3.19(a) is amended by revising the reference to ``part
242 of this chapter'' to read ``8 CFR part 236'' wherever it appears in
the paragraph.
20. Section 3.19(d) is amended in the first sentence by adding the
term ``or removal'' immediately after the word ``deportation''.
21. Section 3.19 is amended by removing paragraph (h).
22. In Sec. 3.20, paragraph (a) is revised to read as follows:
Sec. 3.20 Change of venue.
(a) Venue shall lie at the Immigration Court where jurisdiction
vests pursuant to Sec. 3.14.
* * * * *
23. Section 3.23 is amended by revising the section heading and
paragraph (b) to read as follows:
Sec. 3.23 Reopening or Reconsideration before the Immigration Court.
(a) * * *
(b) Before the Immigration Court. (1) In general. An Immigration
Judge may upon his or her own motion at any time, or upon motion of the
Service or the
[[Page 10333]]
alien, reopen or reconsider any case in which he or she has made a
decision, unless jurisdiction is vested with the Board of Immigration
Appeals. Subject to the exceptions in this paragraph and paragraph
(b)(4), a party may file only one motion to reconsider and one motion
to reopen proceedings. A motion to reconsider must be filed within 30
days of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before July 31, 1996, whichever is
later. A motion to reopen must be filed within 90 days of the date of
entry of a final administrative order of removal, deportation, or
exclusion, or on or before September 30, 1996, whichever is later. A
motion to reopen or to reconsider shall not be made by or on behalf of
a person who is the subject of removal, deportation, or exclusion
proceedings subsequent to his or her departure from the United States.
Any departure from the United States, including the deportation or
removal of a person who is the subject of exclusion, deportation, or
removal proceedings, occurring after the filing of a motion to reopen
or a motion to reconsider shall constitute a withdrawal of such motion.
The time and numerical limitations set forth in this paragraph do not
apply to motions by the Service in removal proceedings pursuant to
section 240 of the Act. Nor shall such limitations apply to motions by
the Service in exclusion or deportation proceedings, when the basis of
the motion is fraud in the original proceeding or a crime that would
support termination of asylum in accordance with Sec. 208.22(f) of this
chapter.
(i) Form and contents of the motion. The motion shall be in writing
and signed by the affected party or the attorney or representative of
record, if any. The motion and any submission made in conjunction with
it must be in English or accompanied by a certified English
translation. Motions to reopen or reconsider shall state whether the
validity of the exclusion, deportation, or removal order has been or is
the subject of any judicial proceeding and, if so, the nature and date
thereof, the court in which such proceeding took place or is pending,
and its result or status. In any case in which an exclusion,
deportation, or removal order is in effect, any motion to reopen or
reconsider such order shall include a statement by or on behalf of the
moving party declaring whether the subject of the order is also the
subject of any pending criminal proceeding under the Act, and, if so,
the current status of that proceeding.
(ii) Filing. Motions to reopen or reconsider a decision of an
Immigration Judge must be filed with the Immigration Court having
administrative control over the Record of Proceeding. A motion to
reopen or a motion to reconsider shall include a certificate showing
service on the opposing party of the motion and all attachments. If the
moving party is not the Service, service of the motion shall be made
upon the Office of the District Counsel for the district in which the
case was completed. If the moving party, other than the Service, is
represented, a Form EOIR-28, Notice of Appearance as Attorney or
Representative Before an Immigration Judge must be filed with the
motion. The motion must be filed in duplicate with the Immigration
Court, accompanied by a fee receipt.
(iii) Assignment to an Immigration Judge. If the Immigration Judge
is unavailable or unable to adjudicate the motion to reopen or
reconsider, the Chief Immigration Judge or his or her delegate shall
reassign such motion to another Immigration Judge.
(iv) Replies to motions; decision. The Immigration Judge may set
and extend time limits for replies to motions to reopen or reconsider.
A motion shall be deemed unopposed unless timely response is made. The
decision to grant or deny a motion to reopen or a motion to reconsider
is within the discretion of the Immigration Judge.
(v) Stays. Except in cases involving in absentia orders, the filing
of a motion to reopen or a motion to reconsider shall not stay the
execution of any decision made in the case. Execution of such decision
shall proceed unless a stay of execution is specifically granted by the
Immigration Judge, the Board, or an authorized officer of the Service.
(2) Motion to reconsider. A motion to reconsider shall state the
reasons for the motion by specifying the errors of fact or law in the
Immigration Judge's prior decision and shall be supported by pertinent
authority. Such motion may not seek reconsideration of a decision
denying previous motion to reconsider.
(3) Motion to reopen. A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits and other evidentiary
material. Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents. A motion to reopen
will not be granted unless the Immigration Judge is satisfied that
evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing. A
motion to reopen for the purpose of providing the alien an opportunity
to apply for any form of discretionary relief will not be granted if it
appears that the alien's right to apply for such relief was fully
explained to him or her by the Immigration Judge and an opportunity to
apply therefore was afforded at the hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the
hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen
proceedings for consideration or further consideration of an
application for relief under section 240A(a) (cancellation of removal
for certain permanent residents) or 240A(b) (cancellation of removal
and adjustment of status for certain nonpermanent residents) may be
granted only if the alien demonstrates that he or she was statutorily
eligible for such relief prior to the service of a notice to appear, or
prior to the commission of an offense referred to in section 212(a)(2)
of the Act that renders the alien inadmissible or removable under
sections 237(a)(2) of the Act or (a)(4), whichever is earliest. The
Immigration Judge has discretion to deny a motion to reopen even if the
moving party has established a prima facie case for relief.
(4) Exceptions to filing deadlines.--(i) Asylum. The time and
numerical limitations set forth in paragraph (b)(1) of this section
shall not apply if the basis of the motion is to apply for relief under
section 208 or 241(b)(3) of the Act and is based on changed country
conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and was
not available and could not have been discovered or presented at the
previous proceeding. The filing of a motion to reopen under this
section shall not automatically stay the removal of the alien. However,
the alien may request a stay and, if granted by the Immigration Judge,
the alien shall not be removed pending disposition of the motion by the
Immigration Judge. If the original asylum application was denied based
upon a finding that it was frivolous, then the alien is ineligible to
file either a motion to reopen or reconsider, or for a stay of removal.
(ii) Order entered in absentia in asylum proceedings or removal
proceedings. An order of removal entered in absentia in asylum
proceedings pursuant to Sec. 208.2(b) of this chapter or in removal
proceedings pursuant to section 240(b)(5) of the Act may be rescinded
only upon a motion to reopen filed within 180 days after the date of
the order of removal, if the alien
[[Page 10334]]
demonstrates that the failure to appear was because of exceptional
circumstances as defined in section 240(e)(1) of the Act. An order
entered in absentia pursuant to Sec. 208.2(b) of this chapter or
pursuant to section 240(b)(5) may be rescinded upon a motion to reopen
filed at any time if the alien demonstrates that he or she did not
receive notice in accordance with sections 239(a)(1) or (2) of the Act,
or the alien demonstrates that he or she was in Federal or state
custody and the failure to appear was through no fault of the alien.
However, in accordance with section 240(b)(5)(B) of the Act, no written
notice of a change in time or place of proceeding shall be required if
the alien has failed to provide the address required under section
239(a)(1)(F) of the Act. The filing of a motion under this paragraph
shall stay the removal of the alien pending disposition of the motion
by the Immigration Judge. An alien may file only one motion pursuant to
this paragraph.
(iii) Order entered in absentia in deportation or exclusion
proceedings. (A) An order entered in absentia in deportation
proceedings may be rescinded only upon a motion to reopen filed:
(1) Within 180 days after the date of the order of deportation if
the alien demonstrates that the failure to appear was because of
exceptional circumstances beyond the control of the alien (e.g.,
serious illness of the alien or serious illness or death of an
immediate relative of the alien, but not including less compelling
circumstances); or
(2) At any time if the alien demonstrates that he or she did not
receive notice or if the alien demonstrates that he or she was in
federal or state custody and the failure to appear was through no fault
of the alien.
(B) A motion to reopen exclusion hearings on the basis that the
Immigration Judge improperly entered an order of exclusion in absentia
must be supported by evidence that the alien had reasonable cause for
his failure to appear.
(C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A)
of this section shall stay the deportation of the alien pending
decision on the motion and the adjudication of any properly filed
administrative appeal.
(D) The time and numerical limitations set forth in paragraph
(b)(1) of this section shall not apply to a motion to reopen filed
pursuant to the provisions of paragraph (b)(4)(iii)(A) of this section.
(iv) Jointly filed motions. The time and numerical limitations set
forth in paragraph (b)(1) of this section shall not apply to a motion
to reopen agreed upon by all parties and jointly filed.
24. Section 3.25 is revised to read as follows:
Sec. 3.25 Form of the proceeding.
(a) Waiver of presence of the parties. The Immigration Judge may,
for good cause, and consistent with section 240(b) of the Act, waive
the presence of the alien at a hearing when the alien is represented or
when the alien is a minor child at least one of whose parents or whose
legal guardian is present. When it is impracticable by reason of an
alien's mental incompetency for the alien to be present, the presence
of the alien may be waived provided that the alien is represented at
the hearing by an attorney or legal representative, a near relative,
legal guardian, or friend.
(b) Stipulated request for order; waiver of hearing. An Immigration
Judge may enter an order of deportation, exclusion or removal
stipulated to by the alien (or the alien's representative) and the
Service. The Immigration Judge may enter such an order without a
hearing and in the absence of the parties based on a review of the
charging document, the written stipulation, and supporting documents,
if any. If the alien is unrepresented, the Immigration Judge must
determine that the alien's waiver is voluntary, knowing, and
intelligent. The stipulated request and required waivers shall be
signed on behalf of the government and by the alien and his or her
attorney or representative, if any. The attorney or representative
shall file a Notice of Appearance in accordance with Sec. 3.16(b). A
stipulated order shall constitute a conclusive determination of the
alien's deportability or removability from the United States. The
stipulation shall include:
(1) An admission that all factual allegations contained in the
charging document are true and correct as written;
(2) A concession of deportability or inadmissibility as charged;
(3) A statement that the alien makes no application for relief
under the Act;
(4) A designation of a country for deportation or removal under
section 241(b)(2)(A)(i) of the Act;
(5) A concession to the introduction of the written stipulation of
the alien as an exhibit to the Record of Proceeding;
(6) A statement that the alien understands the consequences of the
stipulated request and that the alien enters the request voluntarily,
knowingly, and intelligently;
(7) A statement that the alien will accept a written order for his
or her deportation, exclusion or removal as a final disposition of the
proceedings; and
(8) A waiver of appeal of the written order of deportation or
removal.
(c) Telephonic or video hearings. An Immigration Judge may conduct
hearings through video conference to the same extent as he or she may
conduct hearings in person. An Immigration Judge may also conduct a
hearing through a telephone conference, but an evidentiary hearing on
the merits may only be conducted through a telephone conference with
the consent of the alien involved after the alien has been advised of
the right to proceed in person or, where available, through a video
conference, except that credible fear determinations may be reviewed by
the Immigration Judge through a telephone conference without the
consent of the alien.
25. Section 3.26 is amended by revising paragraph (c) and adding a
new paragraph (d) to read as follows:
Sec. 3.26 In absentia hearings.
* * * * *
(c) In any removal proceeding before an Immigration Judge in which
the alien fails to appear, the Immigration Judge shall order the alien
removed in absentia if:
(1) The Service establishes by clear, unequivocal, and convincing
evidence that the alien is removable; and
(2) The Service establishes by clear, unequivocal, and convincing
evidence that written notice of the time and place of proceedings and
written notice of the consequences of failure to appear were provided
to the alien.
(d) Written notice to the alien shall be considered sufficient for
purposes of this section if it was provided at the most recent address
provided by the alien. If the respondent fails to provide his or her
address as required under Sec. 3.15(d), no written notice shall be
required for an Immigration Judge to proceed with an in absentia
hearing. This paragraph shall not apply in the event that the
Immigration Judge waives the appearance of an alien under Sec. 3.25.
26. Section 3.27 is amended by revising paragraph (c) to read as
follows:
Sec. 3.27 Public access to hearings.
* * * * *
(c) In any proceeding before an Immigration Judge concerning an
abused alien spouse, the hearing and the Record of Proceeding shall be
closed to the public unless the abused spouse agrees that the hearing
and the Record of Proceeding shall be open to the public. In any
proceeding before an
[[Page 10335]]
Immigration Judge concerning an abused alien child, the hearing and the
Record of Proceeding shall be closed to the public.
27. Section 3.30 is revised to read as follows:
Sec. 3.30 Additional charges in deportation or removal hearings.
At any time during deportation or removal proceedings, additional
or substituted charges of deportability and/or factual allegations may
be lodged by the Service in writing. The alien shall be served with a
copy of these additional charges and/or allegations and the Immigration
Judge shall read them to the alien. The Immigration Judge shall advise
the alien, if he or she is not represented by counsel, that the alien
may be so represented. The alien may be given a reasonable continuance
to respond to the additional factual allegations and charges.
Thereafter, the provision of Sec. 240.10(b) of this chapter relating to
pleading shall apply to the additional factual allegations and charges.
28. Section 3.35 is revised to read as follows:
Sec. 3.35 Depositions and subpoenas.
(a) Depositions. If an Immigration Judge is satisfied that a
witness is not reasonably available at the place of hearing and that
said witness' testimony or other evidence is essential, the Immigration
Judge may order the taking of deposition either at his or her own
instance or upon application of a party. Such order shall designate the
official by whom the deposition shall be taken, may prescribe and limit
the content, scope, or manner of taking the deposition, and may direct
the production of documentary evidence.
(b) Subpoenas issued subsequent to commencement of proceedings. (1)
General. In any proceeding before an Immigration Judge, other than
under 8 CFR part 335, the Immigration Judge shall have exclusive
jurisdiction to issue subpoenas requiring the attendance of witnesses
or for the production of books, papers and other documentary evidence,
or both. An Immigration Judge may issue a subpoena upon his or her own
volition or upon application of the Service or the alien.
(2) Application for subpoena. A party applying for a subpoena shall
be required, as a condition precedent to its issuance, to state in
writing or at the proceeding, what he or she expects to prove by such
witnesses or documentary evidence, and to show affirmatively that he or
she has made diligent effort, without success, to produce the same.
(3) Issuance of subpoena. Upon being satisfied that a witness will
not appear and testify or produce documentary evidence and that the
witness' evidence is essential, the Immigration Judge shall issue a
subpoena. The subpoena shall state the title of the proceeding and
shall command the person to whom it is directed to attend and to give
testimony at a time and place specified. The subpoena may also command
the person to whom it is directed to produce the books, papers, or
documents specified in the subpoena.
(4) Appearance of witness. If the witness is at a distance of more
than 100 miles from the place of the proceeding, the subpoena shall
provide for the witness' appearance at the Immigration Court nearest to
the witness to respond to oral or written interrogatories, unless there
is no objection by any party to the witness' appearance at the
proceeding.
(5) Service. A subpoena issued under this section may be served by
any person over 18 years of age not a party to the case.
(6) Invoking aid of court. If a witness neglects or refuses to
appear and testify as directed by the subpoena served upon him or her
in accordance with the provisions of this section, the Immigration
Judge issuing the subpoena shall request the United States Attorney for
the district in which the subpoena was issued to report such neglect or
refusal to the United States District Court and to request such court
to issue an order requiring the witness to appear and testify and to
produce the books, papers or documents designated in the subpoena.
29. In Subpart C, a new Sec. 3.42 is added to read as follows:
Sec. 3.42 Review of credible fear determination.
(a) Referral. Jurisdiction for an Immigration Judge to review an
adverse credible fear finding by an asylum officer pursuant to section
235(b)(1)(B) of the Act shall commence with the filing by the Service
of Form I-863, Notice of Referral to Immigration Judge. The Service
shall also file with the notice of referral a copy of the written
record of determination as defined in section 235(b)(1)(B)(iii)(II) of
the Act, including a copy of the alien's written request for review, if
any.
(b) Record of proceeding. The Immigration Court shall create a
Record of Proceeding for a review of an adverse credible fear
determination. This record shall not be merged with any later
proceeding pursuant to section 240 of the Act involving the same alien.
(c) Procedures and evidence. The Immigration Judge may receive into
evidence any oral or written statement which is material and relevant
to any issue in the review. The testimony of the alien shall be under
oath or affirmation administered by the Immigration Judge. If an
interpreter is necessary, one will be provided by the Immigration
Court. The Immigration Judge shall determine whether the review shall
be in person, or through telephonic or video connection (where
available). The alien may consult with a person or persons of the
alien's choosing prior to the review.
(d) Standard of review. The Immigration Judge shall make a de novo
determination as to whether there is a significant possibility, taking
into account the credibility of the statements made by the alien in
support of the alien's claim and such other facts as are known to the
Immigration Judge, that the alien could establish eligibility for
asylum under section 208 of the Act.
(e) Timing. The Immigration Judge shall conclude the review to the
maximum extent practicable within 24 hours, but in no case later than 7
days after the date the supervisory asylum officer has approved the
asylum officer's negative credible fear determination issued on Form I-
869, Record of Negative Credible Fear Finding and Request for Review.
(f) Decision. If an Immigration Judge determines that an alien has
a credible fear of persecution, the Immigration Judge shall vacate the
order entered pursuant to section 235(b)(1)(B)(iii)(I) of the Act.
Subsequent to the order being vacated, the Service shall issue and file
Form I-862, Notice to Appear, with the Immigration Court to commence
removal proceedings. The alien shall have the opportunity to apply for
asylum in the course of removal proceedings pursuant to section 240 of
the Act. If an Immigration Judge determines that an alien does not have
a credible fear of persecution, the Immigration Judge shall affirm the
asylum officer's determination and remand the case to the Service for
execution of the removal order entered pursuant to section
235(b)(1)(B)(iii)(I) of the Act. No appeal shall lie from a review of
an adverse credible fear determination made by an Immigration Judge.
(g) Custody. An Immigration Judge shall have no authority to review
an alien's custody status in the course of a review of an adverse
credible fear determination made by the Service.
[[Page 10336]]
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
30. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874,
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
31. In Sec. 103.1, paragraph (g)(3)(ii) is revised to read as
follows:
Sec. 103.1 Delegations of authority.
* * * * *
(g) * * *
(3) * * *
(ii) Asylum officers. Asylum officers constitute a professional
corps of officers who serve under the supervision and direction of the
Director of International Affairs and shall be specially trained as
required in Sec. 208.1(b) of this chapter. Asylum officers are
delegated the authority to hear and adjudicate credible fear of
persecution determinations under section 235(b)(1)(B) of the Act and
applications for asylum and for withholding of removal, as provided
under 8 CFR part 208.
* * * * *
Sec. 103.5 [Amended]
32. Section 103.5 is amended by:
a. Removing paragraph (a)(1)(iii)(B);
b. Redesignating paragraphs (a)(1)(iii)(C) through (F) as
paragraphs (a)(1)(iii)(B) through (E), respectively; and
c. Removing paragraph (a)(5)(iii).
33. In Sec. 103.5a, paragraph (c)(1) is revised to read as follows:
Sec. 103.5a Service of notification, decisions, and other papers by
the Service.
* * * * *
(c) * * *
(1) Generally. In any proceeding which is initiated by the Service,
with proposed adverse effect, service of the initiating notice and of
notice of any decision by a Service officer shall be accomplished by
personal service, except as provided in section 239 of the Act.
* * * * *
34. In Sec. 103.6, paragraph (a) is revised to read as follows:
Sec. 103.6 Surety bonds.
(a) Posting of surety bonds.--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, Immigration Bond, a copy of
which, and any rider attached thereto, shall be furnished the obligor.
A district director is authorized to approve a bond, a formal agreement
to extension of liability of surety, a request for delivery of
collateral security to a duly appointed and undischarged administrator
or executor of the estate of a deceased depositor, and a power of
attorney executed on Form I-312, Designation of Attorney in Fact. All
other matters relating to bonds, including a power of attorney not
executed on Form I-312 and a request for delivery of collateral
security to other than the depositor or his or her approved attorney in
fact, shall be forwarded to the regional director for approval.
(2) Bond riders.--(i) General. Bond riders shall be prepared on
Form I-351, Bond Riders, and attached to Form I-352. If a condition to
be included in a bond is not on Form I-351, a rider containing the
condition shall be executed.
* * * * *
35. Section 103.7(b)(1) is amended by:
a. Removing the entry to ``Form I-444'', and by
b. Adding the entry for ``Form EOIR-42'' to the listing of forms,
in proper numerical sequence, to read as follows:
Sec. 103.7 Fees
* * * * *
(b) * * *
(1) * * *
* * * * *
Form EOIR-42. For filing application for cancellation of removal
under section 240A of the Act--$100.00. (A single fee of $100.00
will be charged whenever cancellation of removal applications are
filed by two or more aliens in the same proceedings).
* * * * *
PART 204--IMMIGRANT PETITIONS
36. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
37. Section 204.2 is amended by:
a. Revising paragraph (a)(1)(iii) introductory text;
b. Removing paragraphs (a)(1)(iii)(A) through (C); and
c. Redesignating paragraphs (a)(1)(iii)(D) through (I) as
paragraphs (a)(1)(iii)(A) through (F) respectively, to read as follows:
Sec. 204.2 Petitions for relatives, widows, and widowers, and abused
spouses and children.
(a) * * *
(1) * * *
(iii) Marriage during proceedings--general prohibition against
approval of visa petition. A visa petition filed on behalf of an alien
by a United States citizen or a lawful permanent resident spouse shall
not be approved if the marriage creating the relationship occurred on
or after November 10, 1986, and while the alien was in exclusion,
deportation, or removal proceedings, or judicial proceedings relating
thereto. Determination of commencement and termination of proceedings
and exemptions shall be in accordance with Sec. 245.1(c)(9) of this
chapter, except that the burden in visa petition proceedings to
establish eligibility for the exemption in Sec. 245.1(c)(9)(iii)(F) of
this chapter shall rest with the petitioner.
* * * * *
PART 207--ADMISSION OF REFUGEES
38. The authority citation for part 207 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR
part 2.
39. Section 207.1 is amended by removing paragraph (e), and by
revising paragraph (a) to read as follows:
Sec. 207.1 Eligibility.
(a) Filing jurisdiction. Any alien who believes he or she is a
refugee as defined in section 101(a)(42) of the Act, and is included in
a refugee group identified in section 207(a) of the Act, may apply for
admission to the United States by filing an application in accordance
with Sec. 207.2 with the Service office having jurisdiction over the
area where the applicant is located. In those areas too distant from a
Service office, the application may be filed at a designated United
States consular office.
* * * * *
40. Section 207.3 is revised to read as follows:
Sec. 207.3 Waivers of inadmissibility.
(a) Authority. Section 207(c)(3) of the Act sets forth grounds of
inadmissibility under section 212(a) of the Act which are not
applicable and those which may be waived in the case of an otherwise
qualified refugee and the conditions under which such waivers may be
approved. Officers in charge of overseas offices are delegated
authority to initiate the necessary investigations to establish the
facts in each waiver application pending before them and to approve or
deny such waivers.
(b) Filing requirements. The applicant for a waiver must submit
Form I-602, Application by Refugee for Waiver of Grounds of
Inadmissibility, with the Service office processing his or her case.
The burden is on the applicant to show that the waiver should be
granted based upon humanitarian grounds, family
[[Page 10337]]
unity, or the public interest. The applicant shall be notified in
writing of the decision, including the reasons for denial, if the
application is denied. There is no appeal from such decision.
Sec. 207.8 [Amended]
41. Section 207.8 is amended in the last sentence by revising the
reference to ``sections 235, 236, and 237'' to read ``sections 235,
240, and 241''.
42. Part 208 is revised to read as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
Subpart A--Asylum and Withholding of Removal
Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Procedure for interview before an asylum officer.
208.10 Failure to appear at an interview before an asylum officer.
208.11 Comments from the Department of State.
208.12 Reliance on information compiled by other sources.
208.13 Establishing asylum eligibility.
208.14 Approval, denial, or referral of application.
208.15 Definition of ``firm resettlement.''
208.16 Withholding of removal.
208.17 Decisions.
208.18 Determining if an asylum application is frivolous.
208.19 Admission of the asylee's spouse and children.
208.20 Effect on exclusion, deportation, and removal proceedings.
208.21 Restoration of status.
208.22 Termination of asylum or withholding of removal or
deportation.
208.23--29 [Reserved]
Subpart B--Credible Fear of Persecution
208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
Subpart A--Asylum and Withholding or Removal
Sec. 208.1 General.
(a) Applicability. Unless otherwise provided in this chapter, this
subpart shall apply to all applications for asylum under section 208 of
the Act or for withholding of deportation or withholding of removal
under section 241(b)(3) of the Act, whether before an asylum officer or
an immigration judge, regardless of the date of filing. For purposes of
this chapter, withholding of removal shall also mean withholding of
deportation under section 243(h) of the Act, as it appeared prior to
April 1, 1997, except as provided in Sec. 208.16(c). Such applications
are hereinafter referred to generically as asylum applications. The
provisions of this part shall not affect the finality or validity of
any decision made by a district director, an immigration judge, or the
Board of Immigration Appeals in any such case prior to April 1, 1997.
No asylum application that was filed with a district director, asylum
officer or immigration judge prior to April 1, 1997, may be reopened or
otherwise reconsidered under the provisions of this part except by
motion granted in the exercise of discretion by the Board of
Immigration Appeals, an immigration judge, or an asylum officer for
proper cause shown. Motions to reopen or reconsider must meet the
requirements of sections 240(c)(5) and (c)(6) of the Act, and 8 CFR
parts 3 and 103, where applicable.
(b) Training of asylum officers. The Director of International
Affairs shall ensure that asylum officers receive special training in
international human rights law, nonadversarial interview techniques,
and other relevant national and international refugee laws and
principles. The Director of International Affairs shall also, in
cooperation with the Department of State and other appropriate sources,
compile and disseminate to asylum officers information concerning the
persecution of persons in other countries on account of race, religion,
nationality, membership in a particular social group, or political
opinion, as well as other information relevant to asylum
determinations, and shall maintain a documentation center with
information on human rights conditions.
Sec. 208.2 Jurisdiction.
(a) Office of International Affairs. Except as provided in
paragraph (b) of this section, the Office of International Affairs
shall have initial jurisdiction over an asylum application filed by, or
a credible fear determination pertaining to, an alien physically
present in the United States or seeking admission at a port-of-entry.
An application that is complete within the meaning of Sec. 208.3(c)(3)
shall be either adjudicated or referred by asylum officers under this
part in accordance with Sec. 208.14. An application that is incomplete
within the meaning of Sec. 208.3(c)(3) shall be returned to the
applicant. Except as provided in Sec. 208.16(a), an asylum officer
shall not decide whether an alien is entitled to withholding of removal
under section 241(b)(3) of the Act.
(b) Immigration Court--(1) Certain aliens not entitled to
proceedings under section 240 of the Act. After Form I-863, Notice of
Referral to Immigration Judge, has been filed with the Immigration
Court, an immigration judge shall have exclusive jurisdiction over any
asylum application filed on or after April 1, 1997, by:
(i) An alien crewmember who:
(A) Is an applicant for a landing permit;
(B) Has been refused permission to land under section 252 of the
Act; or
(C) On or after April 1, 1997, was granted permission to land under
section 252 of the Act, regardless of whether the alien has remained in
the United States longer than authorized;
(ii) An alien stowaway who has been found to have a credible fear
of persecution pursuant to the procedure set forth in subpart B of this
part;
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver Pilot Program under section 217 of the Act;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Pilot Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status;
(v) An alien who has been ordered removed under section 235(c) of
the Act; or
(vi) An alien who is an applicant for admission, or has been
admitted, as an alien classified under section 101(a)(15)(S) of the
Act.
(2) Rules of procedure. (i) General. Proceedings falling under the
jurisdiction of the immigration judge pursuant to paragraph (b)(1) of
this section shall be conducted in accordance with the same rules of
procedure as proceedings conducted under 8 CFR part 240, except the
scope of review shall be limited to a determination of whether the
alien is eligible for asylum or withholding of removal and whether
asylum shall be granted in the exercise of discretion. During such
proceedings all parties are prohibited from raising or considering any
other issues, including but not limited to issues of admissibility,
removability, eligibility for waivers, and eligibility for any form of
relief other than asylum or withholding of removal.
(ii) Notice of hearing procedures and in-absentia decisions. The
alien will be provided with notice of the time and place of the
proceeding. The request for asylum and withholding of removal
[[Page 10338]]
submitted by an alien who fails to appear for the hearing shall be
denied. The denial of asylum and withholding of removal for failure to
appear may be reopened only upon a motion filed with the immigration
judge with jurisdiction over the case. Only one motion to reopen may be
filed, and it must be filed within 90 days, unless the alien
establishes that he or she did not receive notice of the hearing date
or was in Federal or State custody on the date directed to appear. The
motion must include documentary evidence which demonstrates that:
(A) The alien did not receive the notice;
(B) The alien was in Federal or State custody and the failure to
appear was through no fault of the alien; or
(C) ``Exceptional circumstances,'' as defined in section 240(e)(1)
of the Act, caused the failure to appear.
(iii) Relief. The filing of a motion to reopen shall not stay
removal of the alien unless the immigration judge grants a written
request for a stay pending disposition of the motion. An alien who
fails to appear for a proceeding under this section shall not be
eligible for relief under section 208, 212(h), 212(i), 240A, 240B, 245,
248, or 249 for a period of 10 years after the date of the denial.
(3) Other aliens. Immigration judges shall have exclusive
jurisdiction over asylum applications filed by an alien who has been
served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant
for Admission Detained for a Hearing before an Immigration Judge; or
Form I-862, Notice to Appear, after a copy of the charging document has
been filed with the Immigration Court. Immigration judges shall also
have jurisdiction over any asylum applications filed prior to April 1,
1997, by alien crewmembers who have remained in the United States
longer than authorized, by applicants for admission under the Visa
Waiver Pilot Program, and by aliens who have been admitted to the
United States under the Visa Waiver Pilot Program.
Sec. 208.3 Form of application.
(a) An asylum applicant must file Form I-589, Application for
Asylum or Withholding of Removal, together with any additional
supporting evidence in accordance with the instructions on the form.
The applicant's spouse and children shall be listed on the application
and may be included in the request for asylum if they are in the United
States. One additional copy of the principal applicant's Form I-589
must be submitted for each dependent included in the principal's
application.
(b) An asylum application shall be deemed to constitute at the same
time an application for withholding of removal, unless adjudicated in
deportation or exclusion proceedings commenced prior to April 1, 1997.
In such instances, the asylum application shall be deemed to constitute
an application for withholding of deportation under section 243(h) of
the Act, as that section existed prior to April 1, 1997. Where a
determination is made that an applicant is ineligible to apply for
asylum under section 208(a)(2) of the Act, an asylum application shall
be construed as an application for withholding of removal.
(c) Form I-589 shall be filed under the following conditions and
shall have the following consequences:
(1) If the application was filed on or after January 4, 1995,
information provided in the application may be used as a basis for the
initiation of removal proceedings, or to satisfy any burden of proof in
exclusion, deportation, or removal proceedings;
(2) The applicant and anyone other than a spouse, parent, son, or
daughter of the applicant who assists the applicant in preparing the
application must sign the application under penalty of perjury. The
applicant's signature establishes a presumption that the applicant is
aware of the contents of the application. A person other than a
relative specified in this paragraph who assists the applicant in
preparing the application also must provide his or her full mailing
address;
(3) An asylum application that does not include a response to each
of the questions contained in the Form I-589, is unsigned, or is
unaccompanied by the required materials specified in paragraph (a) of
this section is incomplete. The filing of an incomplete application
shall not commence the 150-day period after which the applicant may
file an application for employment authorization in accordance with
Sec. 208.7. An application that is incomplete shall be returned by mail
to the applicant within 30 days of the receipt of the application by
the Service. If the Service has not mailed the incomplete application
back to the applicant within 30 days, it shall be deemed complete. An
application returned to the applicant as incomplete shall be
resubmitted by the applicant with the additional information if he or
she wishes to have the application considered;
(4) Knowing placement of false information on the application may
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to
civil penalties under section 274C of the Act; and
(5) Knowingly filing a frivolous application on or after April 1,
1997, so long as the applicant has received the notice required by
section 208(d)(4) of the Act, shall render the applicant permanently
ineligible for any benefits under the Act pursuant to Sec. 208.18.
Sec. 208.4 Filing the application.
Except as prohibited in paragraph (a) of this section, asylum
applications shall be filed in accordance with paragraph (b) of this
section.
(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits
certain aliens from filing for asylum on or after April 1, 1997, unless
the alien can demonstrate to the satisfaction of the Attorney General
that one of the exceptions in section 208(a)(2)(D) of the Act applies.
Such prohibition applies only to asylum applications under section 208
of the Act and not to applications for withholding of removal under
section 241 of the Act. If an applicant submits an asylum application
and it appears that one or more of the prohibitions contained in
section 208(a)(2) of the Act apply, an asylum officer or an immigration
judge shall review the application to determine if the application
should be rejected or denied. For the purpose of making determinations
under section 208(a)(2) of the Act, the following rules shall apply:
(1) Authority. Only an asylum officer, an immigration judge, or the
Board of Immigration Appeals is authorized to make determinations
regarding the prohibitions contained in section 208(a)(2)(B) or (C) of
the Act;
(2) One-year filing deadline. (i) For purposes of section
208(a)(2)(B) of the Act, an applicant has the burden of proving
(A) By clear and convincing evidence that he or she applied within
one year of the alien's arrival in the United States or
(B) To the satisfaction of the asylum officer, immigration judge,
or Board of Immigration Appeals that he or she qualifies for an
exception to the one-year deadline.
(ii) The one-year period shall be calculated from the date of the
alien's last arrival in the United States or April 1, 1997, whichever
is later. In the case of an application that appears to have been filed
more than a year after the applicant arrived in the United States, an
asylum officer or immigration judge will determine whether the
applicant qualifies under one of the exceptions to the deadline;
[[Page 10339]]
(3) Prior denial of application. For purposes of section
208(a)(2)(C) of the Act, an asylum application has not been denied
unless denied by an immigration judge or the Board of Immigration
Appeals;
(4) Changed circumstances. (i) The term ``changed circumstances''
in section 208(a)(2)(D) of the Act shall refer to circumstances
materially affecting the applicant's eligibility for asylum. They may
include:
(A) Changes in conditions in the applicant's country of nationality
or, if the person is stateless, country of last habitual residence or
(B) Changes in objective circumstances relating to the applicant in
the United States, including changes in applicable U.S. law, that
create a reasonable possibility that applicant may qualify for asylum.
(ii) The applicant shall apply for asylum within a reasonable
period given those ``changed circumstances.''
(5) The term extraordinary circumstances in section 208(a)(2)(D) of
the Act shall refer to events or factors beyond the alien's control
that caused the failure to meet the 1-year deadline. Such circumstances
shall excuse the failure to file within the 1-year period so long as
the alien filed the application within a reasonable period given those
circumstances. The burden of proof is on the applicant to establish to
the satisfaction of the asylum officer or immigration judge that the
circumstances were both beyond his or her control and that, but for
those circumstances, he or she would have filed within the 1-year
period. These circumstances may include:
(i) Serious illness or mental or physical disability of significant
duration, including any effects of persecution or violent harm suffered
in the past, during the 1-year period after arrival;
(ii) Legal disability (e.g., the applicant was an unaccompanied
minor or suffered from a mental impairment) during the first year after
arrival;
(iii) Ineffective assistance of counsel, provided that:
(A) The alien files an affidavit setting forth in detail the
agreement that was entered into with counsel with respect to the
actions to be taken and what representations counsel did or did not
make to the respondent in this regard;
(B) The counsel whose integrity or competence is being impugned has
been informed of the allegations leveled against him or her and given
an opportunity to respond; and
(C) The alien indicates whether a complaint has been filed with
appropriate disciplinary authorities with respect to any violation of
counsel's ethical or legal responsibilities, and if not, why not;
(iv) The applicant maintained Temporary Protected Status until a
reasonable period before the filing of the asylum application; and
(v) The applicant submitted an asylum application prior to the
expiration of the 1-year deadline, but that application was rejected by
the Service as not properly filed, was returned to the applicant for
corrections, and was refiled within a reasonable period thereafter.
(b) Filing location--(1) With the service center by mail. Except as
provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this
section, asylum applications shall be filed directly by mail with the
service center servicing the asylum office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without
a United States residence, the applicant's current lodging or the land
border port-of-entry through which the alien seeks admission to the
United States.
(2) With the asylum office. Asylum applications shall be filed
directly with the asylum office having jurisdiction over the matter in
the case of an alien who has received the express consent of the
Director of Asylum to do so.
(3) With the immigration judge. Asylum applications shall be filed
directly with the Immigration Court having jurisdiction over the case
in the following circumstances:
(i) During exclusion, deportation, or removal proceedings, with the
Immigration Court having jurisdiction over the port, district office,
or sector after service and filing of the appropriate charging
document.
(ii) After completion of exclusion, deportation, or removal
proceedings, and in conjunction with a motion to reopen pursuant to 8
CFR part 3 where applicable, with the Immigration Court having
jurisdiction over the prior proceeding. Any such motion must reasonably
explain the failure to request asylum prior to the completion of the
proceedings.
(iii) In asylum proceedings pursuant to Sec. 208.2(b)(1) and after
the Notice of Referral to Immigration Judge has been served on the
alien and filed with the Immigration Court having jurisdiction over the
case.
(4) With the Board of Immigration Appeals. In conjunction with a
motion to remand or reopen pursuant to Secs. 3.2 and 3.8 of this
chapter where applicable, an initial asylum application shall be filed
with the Board of Immigration Appeals if jurisdiction over the
proceedings is vested in the Board of Immigration Appeals under 8 CFR
part 3. Any such motion must reasonably explain the failure to request
asylum prior to the completion of the proceedings.
(5) With the district director. In the case of any alien described
in Sec. 208.2(b)(1) and prior to the service on the alien of Form I-
863, any asylum application shall be submitted to the district director
having jurisdiction pursuant to 8 CFR part 103. The district director
shall forward such asylum application to the appropriate Immigration
Court with the Form I-863 being filed with that Immigration Court.
(c) Amending an application after filing. Upon request of the alien
and as a matter of discretion, the asylum officer or immigration judge
having jurisdiction may permit an asylum applicant to amend or
supplement the application, but any delay caused by such request shall
extend the period within which the applicant may not apply for
employment authorization in accordance with Sec. 208.7(a).
Sec. 208.5 Special duties toward aliens in custody of the Service.
(a) General. When an alien in the custody of the Service requests
asylum or withholding of removal or expresses a fear of persecution or
harm upon return to his or her country of origin or to agents thereof,
the Service shall make available the appropriate application forms and
shall provide the applicant with the information required by section
208(d)(4) of the Act, except in the case of an alien who is in custody
pending a credible fear of persecution determination under section
235(b)(1)(B) of the Act. Where possible, expedited consideration shall
be given to applications of detained aliens. Except as provided in
paragraph (c) of this section, such alien shall not be excluded,
deported, or removed before a decision is rendered on his or her asylum
application.
(b) Certain aliens aboard vessels. (1) If an alien crewmember or
alien stowaway on board a vessel or other conveyance alleges, claims,
or otherwise makes known to an immigration inspector or other official
making an examination on the conveyance that he or she is unable or
unwilling to return to his or her country of nationality or last
habitual residence (if not a national of any country) because of
persecution or a fear of persecution in that country on account of
race, religion, nationality, membership in a particular social group,
or political opinion, the alien shall be promptly removed from the
conveyance. If the alien makes such fear known to an official while off
such conveyance, the
[[Page 10340]]
alien shall not be returned to the conveyance but shall be retained in
or transferred to the custody of the Service.
(i) An alien stowaway will be referred to an asylum officer for a
credible fear determination under Sec. 208.30.
(ii) An alien crewmember shall be provided the appropriate
application forms and information required by section 208(d)(4) of the
Act and may then have 10 days within which to submit an asylum
application to the district director having jurisdiction over the port
of entry. The district director, pursuant to Sec. 208.4(b), shall serve
Form I-863 on the alien and immediately forward any such application to
the appropriate Immigration Court with a copy of the Form I-863 being
filed with that court.
(2) Pending adjudication of the application, and, in the case of a
stowaway the credible fear determination and any review thereof, the
alien may be detained by the Service or otherwise paroled in accordance
with Sec. 212.5 of this chapter. However, pending the credible fear
determination, parole of an alien stowaway may be permitted only when
the Attorney General determines, in the exercise of discretion, that
parole is required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.
(c) Exception to prohibition on removal. A motion to reopen or an
order to remand accompanied by an asylum application pursuant to
Sec. 208.4(b)(3)(iii) shall not stay execution of a final exclusion,
deportation, or removal order unless such stay is specifically granted
by the Board of Immigration Appeals or the immigration judge having
jurisdiction over the motion.
Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any asylum
application shall not be disclosed without the written consent of the
applicant, except as permitted by this section or at the discretion of
the Attorney General.
(b) The confidentiality of other records kept by the Service that
indicate that a specific alien has applied for asylum shall also be
protected from disclosure. The Service will coordinate with the
Department of State to ensure that the confidentiality of these records
is maintained if they are transmitted to Department of State offices in
other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a
need to examine information in connection with:
(i) The adjudication of asylum applications;
(ii) The defense of any legal action arising from the adjudication
of or failure to adjudicate the asylum application;
(iii) The defense of any legal action of which the asylum
application is a part; or
(iv) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, state, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of or failure to adjudicate the
asylum application; or
(ii) Arising from the proceedings of which the asylum application
is a part.
Sec. 208.7 Employment authorization.
(a) Application and approval. (1) Subject to the restrictions
contained in sections 208(d) and 236(a) of the Act, an applicant for
asylum who is not an aggravated felon shall be eligible pursuant to
Secs. 274a.12(c)(8) and 274a.13(a) of this chapter to submit a Form I-
765, Application for Employment Authorization. Except in the case of an
alien whose asylum application has been recommended for approval, or in
the case of an alien who filed an asylum application prior to January
4, 1995, the application shall be submitted no earlier than 150 days
after the date on which a complete asylum application submitted in
accordance with Secs. 208.3 and 208.4 has been received. In the case of
an applicant whose asylum application has been recommended for
approval, the applicant may apply for employment authorization when he
or she receives notice of the recommended approval. If an asylum
application has been returned as incomplete in accordance with
Sec. 208.3(c)(3), the 150-day period will commence upon receipt by the
Service of a complete asylum application. An applicant whose asylum
application has been denied by an asylum officer or by an immigration
judge within the 150-day period shall not be eligible to apply for
employment authorization. If an asylum application is denied prior to a
decision on the application for employment authorization, the
application for employment authorization shall be denied. If the asylum
application is not so denied, the Service shall have 30 days from the
date of filing of the Form I-765 to grant or deny that application,
except that no employment authorization shall be issued to an asylum
applicant prior to the expiration of the 180-day period following the
filing of the asylum application filed on or after April 1, 1997.
(2) The time periods within which the alien may not apply for
employment authorization and within which the Service must respond to
any such application and within which the asylum application must be
adjudicated pursuant to section 208(d)(5)(A)(iii) of the Act shall
begin when the alien has filed a complete asylum application in
accordance with Secs. 208.3 and 208.4. Any delay requested or caused by
the applicant shall not be counted as part of these time periods. Such
time periods also shall be extended by the equivalent of the time
between issuance of a request for evidence under Sec. 103.2(b)(8) of
this chapter and the receipt of the applicant's response to such
request.
(3) The provisions of paragraphs (a)(1) and (a)(2) of this section
apply to applications for asylum filed on or after January 4, 1995.
(4) Employment authorization pursuant to Sec. 274a.12(c)(8) of this
chapter may not be granted to an alien who fails to appear for a
scheduled interview before an asylum officer or a hearing before an
immigration judge, unless the applicant demonstrates that the failure
to appear was the result of exceptional circumstances.
(b) Renewal and termination. Employment authorization shall be
renewable, in increments to be determined by the Commissioner, for the
continuous period of time necessary for the asylum officer or
immigration judge to decide the asylum application and, if necessary,
for completion of any administrative or judicial review.
(1) If the asylum application is denied by the asylum officer, the
employment authorization shall terminate at the expiration of the
employment authorization document or 60 days after the denial of
asylum, whichever is longer.
(2) If the application is denied by the immigration judge, the
Board of Immigration Appeals, or a Federal court, the employment
authorization terminates upon the expiration of the employment
authorization document, unless the applicant has filed an appropriate
request for administrative or judicial review.
(c) Supporting evidence for renewal of employment authorization. In
order for employment authorization to be renewed under this section,
the alien must provide the Service (in accordance with the instructions
on or attached to the employment authorization application) with a Form
I-765, the required fee (unless waived in accordance with Sec. 103.7(c)
of this chapter), and (if applicable) proof that
[[Page 10341]]
he or she has continued to pursue his or her asylum application before
an immigration judge or sought administrative or judicial review. For
purposes of employment authorization, pursuit of an asylum application
is established by presenting to the Service one of the following,
depending on the stage of the alien's immigration proceedings:
(1) If the alien's case is pending in proceedings before the
immigration judge, and the alien wishes to continue to pursue his or
her asylum application, a copy of any asylum denial, referral notice,
or charging document placing the alien in such proceedings;
(2) If the immigration judge has denied asylum, a copy of the
document issued by the Board of Immigration Appeals to show that a
timely appeal has been filed from a denial of the asylum application by
the immigration judge; or
(3) If the Board of Immigration Appeals has dismissed the alien's
appeal of a denial of asylum, or sustained an appeal by the Service of
a grant of asylum, a copy of the petition for judicial review or for
habeas corpus pursuant to section 242 of the Act, date stamped by the
appropriate court.
(d) In order for employment authorization to be renewed before its
expiration, the application for renewal must be received by the Service
90 days prior to expiration of the employment authorization.
Sec. 208.8 Limitations on travel outside the United States.
(a) An applicant who leaves the United States without first
obtaining advance parole under Sec. 212.5(e) of this chapter shall be
presumed to have abandoned his or her application under this section.
(b) An applicant who leaves the United States pursuant to advance
parole under Sec. 212.5(e) of this chapter and returns to the country
of claimed persecution shall be presumed to have abandoned his or her
application, unless the applicant is able to establish compelling
reasons for such return.
Sec. 208.9 Procedure for interview before an asylum officer.
(a) The Service shall adjudicate the claim of each asylum applicant
whose application is complete within the meaning of Sec. 208.3(c)(3)
and is within the jurisdiction of the Service.
(b) The asylum officer shall conduct the interview in a
nonadversarial manner and, except at the request of the applicant,
separate and apart from the general public. The purpose of the
interview shall be to elicit all relevant and useful information
bearing on the applicant's eligibility for asylum. At the time of the
interview, the applicant must provide complete information regarding
his or her identity, including name, date and place of birth, and
nationality, and may be required to register this identity
electronically or through any other means designated by the Attorney
General. The applicant may have counsel or a representative present,
may present witnesses, and may submit affidavits of witnesses and other
evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or the
applicant's representative shall have an opportunity to make a
statement or comment on the evidence presented. The asylum officer may,
in his or her discretion, limit the length of such statement or comment
and may require its submission in writing. Upon completion of the
interview, the applicant shall be informed that he or she must appear
in person to receive and to acknowledge receipt of the decision of the
asylum officer and any other accompanying material at a time and place
designated by the asylum officer, except as otherwise provided by the
asylum officer. An applicant's failure to appear to receive and
acknowledge receipt of the decision shall be treated as delay caused by
the applicant for purposes of Sec. 208.7(a)(3) and shall extend the
period within which the applicant may not apply for employment
authorization by the number of days until the applicant does appear to
receive and acknowledge receipt of the decision or until the applicant
appears before an immigration judge in response to the issuance of a
charging document under Sec. 208.14(b).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a
brief extension of time following an interview during which the
applicant may submit additional evidence. Any such extension shall
extend by an equivalent time the periods specified by Sec. 208.7 for
the filing and adjudication of any employment authorization
application.
(f) The asylum application, all supporting information provided by
the applicant, any comments submitted by the Department of State or by
the Service, and any other information specific to the applicant's case
and considered by the asylum officer shall comprise the record.
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the Service, a competent interpreter
fluent in both English and the applicant's native language or any other
language in which the applicant is fluent. The interpreter must be at
least 18 years of age. Neither the applicant's attorney or
representative of record, a witness testifying on the applicant's
behalf, nor a representative or employee of the applicant's country of
nationality, or if stateless, country of last habitual residence, may
serve as the applicant's interpreter. Failure without good cause to
comply with this paragraph may be considered a failure to appear for
the interview for purposes of Sec. 208.10.
Sec. 208.10 Failure to appear at an interview before an asylum
officer.
Failure to appear for a scheduled interview without prior
authorization may result in dismissal of the application or waiver of
the right to an interview. Failure to appear shall be excused if the
notice of the interview was not mailed to the applicant's current
address and such address had been provided to the Office of
International Affairs by the applicant prior to the date of mailing in
accordance with section 265 of the Act and regulations promulgated
thereunder, unless the asylum officer determines that the applicant
received reasonable notice of the interview. Failure to appear will be
excused if the applicant demonstrates that such failure was the result
of exceptional circumstances.
Sec. 208.11 Comments from the Department of State.
(a) The Service shall forward to the Department of State a copy of
each completed application it receives. At its option, the Department
of State may provide detailed country conditions information relevant
to eligibility for asylum or withholding of removal.
(b) At its option, the Department of State may also provide:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her particular situation;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted in his or her country of nationality or
habitual
[[Page 10342]]
residence and the frequency of such persecution; or
(3) Such other information as it deems relevant.
(c) Asylum officers and immigration judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate.
(d) Any such comments received pursuant to paragraphs (b) and (c)
of this section shall be made part of the record. Unless the comments
are classified under the applicable Executive Order, the applicant
shall be provided an opportunity to review and respond to such comments
prior to the issuance of any decision to deny the application.
Sec. 208.12 Reliance on information compiled by other sources.
(a) In deciding an asylum application, or whether the alien has a
credible fear of persecution pursuant to section 235(b)(1)(B) of the
Act, the asylum officer may rely on material provided by the Department
of State, the Office of International Affairs, other Service offices,
or other credible sources, such as international organizations, private
voluntary agencies, news organizations, or academic institutions.
(b) Nothing in this part shall be construed to entitle the
applicant to conduct discovery directed toward the records, officers,
agents, or employees of the Service, the Department of Justice, or the
Department of State.
Sec. 208.13 Establishing asylum eligibility.
(a) Burden of proof. The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section
101(a)(42) of the Act. The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without corroboration. The
fact that the applicant previously established a credible fear of
persecution for purposes of section 235(b)(1)(B) of the Act does not
relieve the alien of the additional burden of establishing eligibility
for asylum.
(b) Persecution. The applicant may qualify as a refugee either
because he or she has suffered past persecution or because he or she
has a well-founded fear of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee
on the basis of past persecution if he or she can establish that he or
she has suffered persecution in the past in his or her country of
nationality or last habitual residence on account of race, religion,
nationality, membership in a particular social group, or political
opinion, and that he or she is unable or unwilling to return to or
avail himself or herself of the protection of that country owing to
such persecution.
(i) If it is determined that the applicant has established past
persecution, he or she shall be presumed also to have a well-founded
fear of persecution unless a preponderance of the evidence establishes
that since the time the persecution occurred conditions in the
applicant's country of nationality or last habitual residence have
changed to such an extent that the applicant no longer has a well-
founded fear of being persecuted if he or she were to return.
(ii) An application for asylum shall be denied if the applicant
establishes past persecution under this paragraph but it is also
determined that he or she does not have a well-founded fear of future
persecution under paragraph (b)(2) of this section, unless it is
determined that the applicant has demonstrated compelling reasons for
being unwilling to return to his or her country of nationality or last
habitual residence arising out of the severity of the past persecution.
If the applicant demonstrates such compelling reasons, he or she may be
granted asylum unless such a grant is barred by paragraph (c) of this
section .
(2) Well-founded fear of persecution. An applicant shall be found
to have a well-founded fear of persecution if he or she can establish
first, that he or she has a fear of persecution in his or her country
of nationality or last habitual residence on account of race, religion,
nationality, membership in a particular social group, or political
opinion; second, that there is a reasonable possibility of suffering
such persecution if he or she were to return to that country; and
third, that he or she is unable or unwilling to return to or avail
himself or herself of the protection of that country because of such
fear. In evaluating whether the applicant has sustained his or her
burden of proving that he or she has a well-founded fear of
persecution, the asylum officer or immigration judge shall not require
the applicant to provide evidence that he or she would be singled out
individually for persecution if:
(i) The applicant establishes that there is a pattern or practice
in his or her country of nationality or last habitual residence of
persecution of a group of persons similarly situated to the applicant
on account of race, religion, nationality, membership in a particular
social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that his or her fear of
persecution upon return is reasonable.
(c) Mandatory denials. (1) Applications filed on or after April 1,
1997. For applications filed on or after April 1, 1997, an applicant
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the
Act applies to the applicant. If the applicant is found to be
ineligible for asylum under either section 208(a)(2) or 208(b)(2) of
the Act, the applicant shall be considered for eligibility for
withholding of removal under section 241(b)(3) of the Act.
(2) Applications filed before April 1, 1997. (i) An immigration
judge or asylum officer shall not grant asylum to any applicant who
filed his or her application before April 1, 1997, if the alien:
(A) Having been convicted by a final judgment of a particularly
serious crime in the United States, constitutes a danger to the
community;
(B) Has been firmly resettled within the meaning of Sec. 208.15;
(C) Can reasonably be regarded as a danger to the security of the
United States;
(D) Has been convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act; or
(E) Ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.
(ii) If the evidence indicates that one of the above grounds apply
to the applicant, he or she shall have the burden of proving by a
preponderance of the evidence that he or she did not so act.
(d) Discretionary denial. An asylum application may be denied in
the discretion of the Attorney General if the alien can be removed to a
third country which has offered resettlement and in which the alien
would not face harm or persecution.
Sec. 208.14 Approval, denial, or referral of application.
(a) By an immigration judge. Unless otherwise prohibited in
Sec. 208.13(c), an immigration judge may grant or deny asylum in the
exercise of discretion to an applicant who qualifies as a refugee under
section 101(a)(42) of the Act.
(b) By an asylum officer. Unless otherwise prohibited in
Sec. 208.13(c):
(1) An asylum officer may grant asylum in the exercise of
discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act.
(2) If the alien appears to be deportable, excludable or removable
under section 240 of the Act, the asylum
[[Page 10343]]
officer shall either grant asylum or refer the application to an
immigration judge for adjudication in deportation, exclusion, or
removal proceedings. An asylum officer may refer such an application
after an interview conducted in accordance with Sec. 208.9 or if, in
accordance with Sec. 208.10, the applicant is deemed to have waived his
or her right to an interview.
(3) If the applicant is maintaining valid nonimmigrant status at
the time the application is decided, the asylum officer may grant or
deny asylum, except in the case of an applicant described in
Sec. 208.2(b)(1).
(c) Applicability of Sec. 103.2(b) of this chapter. No application
for asylum or withholding of deportation shall be subject to denial
pursuant to Sec. 103.2(b) of this chapter.
(d) Duration. If the alien's asylum application is granted, the
grant will be effective for an indefinite period, subject to
termination as provided in Sec. 208.22.
(e) Effect of denial of principal's application on separate
applications by dependents. The denial of an asylum application filed
by a principal applicant for asylum shall also result in the denial of
asylum status to any dependents of that principal applicant who are
included in that same application. Such denial shall not preclude a
grant of asylum for an otherwise eligible dependent who has filed a
separate asylum application, nor shall such denial result in an
otherwise eligible dependent becoming ineligible to apply for asylum
due to the provisions of section 208(a)(2)(C) of the Act.
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he or she entered into another nation with, or
while in that nation received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he or
she establishes:
(a) That his or her entry into that nation was a necessary
consequence of his or her flight from persecution, that he or she
remained in that nation only as long as was necessary to arrange onward
travel, and that he or she did not establish significant ties in that
nation; or
(b) That the conditions of his or her residence in that nation were
so substantially and consciously restricted by the authority of the
country of refuge that he or she was not in fact resettled. In making
his or her determination, the Asylum Officer or Immigration Judge shall
consider the conditions under which other residents of the country
live, the type of housing made available to the refugee, whether
permanent or temporary, the types and extent of employment available to
the refugee, and the extent to which the refugee received permission to
hold property and to enjoy other rights and privileges, such as travel
documentation including a right of entry or reentry, education, public
relief, or naturalization, ordinarily available to others resident in
the country.
Sec. 208.16 Withholding of removal.
(a) Consideration of application for withholding of removal. An
asylum officer shall not decide whether the exclusion, deportation, or
removal of an alien to a country where the alien's life or freedom
would be threatened must be withheld, except in the case of an alien
who is otherwise eligible for asylum but is precluded from being
granted such status due solely to section 207(a)(5) of the Act. In
exclusion, deportation, or removal proceedings, an immigration judge
may adjudicate both an asylum claim and a request for withholding of
removal whether or not asylum is granted.
(b) Eligibility for withholding of removal; burden of proof. The
burden of proof is on the applicant for withholding of removal to
establish that his or her life or freedom would be threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion. The
testimony of the applicant, if credible, may be sufficient to sustain
the burden of proof without corroboration. The evidence shall be
evaluated as follows:
(1) The applicant's life or freedom shall be found to be threatened
if it is more likely than not that he or she would be persecuted on
account of race, religion, nationality, membership in a particular
social group, or political opinion.
(2) If the applicant is determined to have suffered persecution in
the past such that his or her life or freedom was threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion, it shall
be presumed that his or her life or freedom would be threatened on
return to that country unless a preponderance of the evidence
establishes that conditions in the country have changed to such an
extent that it is no longer more likely than not that the applicant
would be so persecuted there.
(3) In evaluating whether the applicant has sustained the burden of
proving that his or her life or freedom would be threatened in a
particular country on account of race, religion, nationality,
membership in a particular social group, or political opinion, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that he or she would be singled out individually for
such persecution if:
(i) The applicant establishes that there is a pattern or practice
in the country of proposed removal of persecution of a group of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon
return.
(c) Approval or denial of application. (1) General. Subject to
paragraphs (c)(2) and (c)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraph (b) of this section.
(2) Mandatory denials. Except as provided in paragraph (c)(3) of
this section, an application for withholding of removal shall be denied
if the applicant falls within section 241(b)(3)(B) of the Act or, for
applications for withholding of deportation adjudicated in proceedings
commenced prior to April 1, 1997, within section 243(h)(2) of the Act
as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger
to the community. If the evidence indicates the applicability of one or
more of the grounds for denial enumerated in the Act, the applicant
shall have the burden of proving by a preponderance of the evidence
that such grounds do not apply.
(3) Exception to the prohibition on withholding of deportation in
certain cases. Section 243(h)(3) of the Act, as added by section 413 of
Public Law 104-132, shall apply only to applications adjudicated in
proceedings commenced before April 1, 1997, and in which final action
had not been taken before April 24, 1996. The discretion permitted by
that section to override section 243(h)(2) of the Act shall be
exercised only in the case of an applicant convicted of an aggravated
felony (or felonies) where he or she was
[[Page 10344]]
sentenced to an aggregate term of imprisonment of less than 5 years and
the immigration judge determines on an individual basis that the crime
(or crimes) of which the applicant was convicted does not constitute a
particularly serious crime. Nevertheless, it shall be presumed that an
alien convicted of an aggravated felony has been convicted of a
particularly serious crime. Except in the cases specified in this
paragraph, the grounds for denial of withholding of deportation in
section 243(h)(2) of the Act as it appeared prior to April 1, 1997,
shall be deemed to comply with the 1967 Protocol Relating to the Status
of Refugees.
(d) Reconsideration of discretionary denial of asylum. In the event
that an applicant is denied asylum solely in the exercise of
discretion, and the applicant is subsequently granted withholding of
deportation or removal under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him or her, the denial of asylum shall be
reconsidered. Factors to be considered will include the reasons for the
denial and reasonable alternatives available to the applicant such as
reunification with his or her spouse or minor children in a third
country.
Sec. 208.17 Decisions.
The decision of an asylum officer to grant or to deny asylum or
withholding of removal, or to refer an asylum application in accordance
with Sec. 208.14(b), shall be communicated in writing to the applicant.
Notices of decisions to grant or deny asylum, or to refer an
application, by asylum officers shall generally be served in person
unless, in the discretion of the asylum office director, routine
service by mail is appropriate. A letter communicating denial of the
application shall state the basis for denial of the asylum application.
The letter also shall contain an assessment of the applicant's
credibility, unless the denial is the result of the applicant's
conviction of an aggravated felony. Pursuant to Sec. 208.9(d), an
applicant must appear in person to receive and to acknowledge receipt
of the decision.
Sec. 208.18 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. For purposes of this section, an asylum application is
frivolous if any of its material elements is deliberately fabricated.
Such finding shall only be made if the immigration judge or the Board
is satisfied that the applicant, during the course of the proceedings,
has had sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.
Sec. 208.19 Admission of the asylee's spouse and children.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, 8 U.S.C. 1101(a)(35), or child, as defined in section
101(b)(1)(A), (B), (C), (D), (E), or (F) of the Act, also may be
granted asylum if accompanying or following to join the principal alien
who was granted asylum, unless it is determined that:
(1) The spouse or child ordered, incited, assisted, or otherwise
participated in the persecution of any persons on account of race,
religion, nationality, membership in a particular social group, or
political opinion;
(2) The spouse or child, having been convicted by a final judgment
of a particularly serious crime in the United States, constitutes a
danger to the community of the United States;
(3) The spouse or child has been convicted of an aggravated felony,
as defined in section 101(a)(43) of the Act; or
(4) There are reasonable grounds for regarding the spouse or child
a danger to the security of the United States.
(b) Relationship. The relationship of spouse and child as defined
in section 101(b)(1) of the Act must have existed at the time the
principal alien's asylum application was approved, except for children
born to or legally adopted by the principal alien and spouse after
approval of the principal alien's asylum application.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States but was not included in
the principal alien's application, the principal alien may request
asylum for the spouse or child by filing Form I-730 with the District
Director having jurisdiction over his only place of residence,
regardless of the status of that spouse or child in the United States.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
principal alien may request asylum for the spouse or child by filing
form I-730 with the District Director, setting forth the full name,
relationship, date and place of birth, and current location of each
such person. Upon approval of the request, the District Director shall
notify the Department of State, which will send an authorization cable
to the American Embassy or Consulate having jurisdiction over the area
in which the asylee's spouse or child is located.
(e) Denial. If the spouse or child is found to be ineligible for
the status accorded under section 208(c) of the Act, a written notice
stating the basis for denial shall be forwarded to the principal alien.
No appeal shall lie from this decision.
(f) Burden of proof. To establish the claim of relationship of
spouse or child as defined in section 101(b)(1) of the Act, evidence
must be submitted with the request as set forth in part 204 of this
chapter. Where possible this will consist of the documents specified in
8 CFR 204.2(c) (2) and (3). The burden of proof is on the principal
alien to establish by a preponderance of the evidence that any person
on whose behalf he or she is making a request under this section is an
eligible spouse or child.
(g) Duration. The spouse or child qualifying under section 208(c)
of the Act shall be granted asylum for an indefinite period unless the
principal's status is revoked.
Sec. 208.20 Effect on exclusion, deportation, and removal proceedings.
(a) An alien who has been granted asylum may not be deported or
removed unless his or her asylum status is terminated pursuant to
Sec. 208.22. An alien in exclusion, deportation, or removal proceedings
who is granted withholding of removal or deportation may not be
deported or removed to the country to which his or her deportation or
removal is ordered withheld unless the withholding order is terminated
pursuant to Sec. 208.22.
(b) When an alien's asylum status or withholding of removal or
deportation is terminated under this chapter, the Service shall
initiate removal proceedings under section 235 or 240 of the Act, as
appropriate, if the alien is not already in exclusion, deportation, or
removal proceedings. Removal proceedings may also be in conjunction
with a termination hearing scheduled under Sec. 208.22(e).
Sec. 208.21 Restoration of status.
An alien who was maintaining his or her nonimmigrant status at the
time of filing an asylum application and has such application denied
may continue in or be restored to that status, if it has not expired.
Sec. 208.22 Termination of asylum or withholding of removal or
deportation.
(a) Termination of asylum by the Service. Except as provided in
[[Page 10345]]
paragraph (e) of this section, an asylum officer may terminate a grant
of asylum made under the jurisdiction of an asylum officer or a
district director if following an interview, the asylum officer
determines that:
(1) There is a showing of fraud in the alien's application such
that he or she was not eligible for asylum at the time it was granted;
(2) As to applications filed on or after April 1, 1997, one or more
of the conditions described in section 208(c)(2) of the Act exist; or
(3) As to applications filed before April 1, 1997, the alien no
longer has a well-founded fear of persecution upon return due to a
change of country conditions in the alien's country of nationality or
habitual residence or the alien has committed any act that would have
been grounds for denial of asylum under Sec. 208.13(c)(2).
(b) Termination of withholding of deportation or removal by the
Service. Except as provided in paragraph (e) of this section, an asylum
officer may terminate a grant of withholding of deportation or removal
made under the jurisdiction of an asylum officer or a district director
if the asylum officer determines, following an interview, that:
(1) The alien is no longer entitled to withholding of deportation
or removal due to a change of conditions in the country to which
removal was withheld;
(2) There is a showing of fraud in the alien's application such
that the alien was not eligible for withholding of removal at the time
it was granted;
(3) The alien has committed any other act that would have been
grounds for denial of withholding of removal under section 241(b)(3)(B)
of the Act had it occurred prior to the grant of withholding of
removal; or
(4) For applications filed in proceedings commenced before April 1,
1997, the alien has committed any act that would have been grounds for
denial of withholding of deportation under section 243(h)(2) of the
Act.
(c) Procedure. Prior to the termination of a grant of asylum or
withholding of deportation or removal, the alien shall be given notice
of intent to terminate, with the reasons therefor, at least 30 days
prior to the interview specified in paragraph (a) of this section
before an asylum officer. The alien shall be provided the opportunity
to present evidence showing that he or she is still eligible for asylum
or withholding of deportation or removal. If the asylum officer
determines that the alien is no longer eligible for asylum or
withholding of deportation or removal, the alien shall be given written
notice that asylum status or withholding of deportation or removal and
any employment authorization issued pursuant thereto, are terminated.
(d) Termination of derivative status. The termination of asylum
status for a person who was the principal applicant shall result in
termination of the asylum status of a spouse or child whose status was
based on the asylum application of the principal. Such termination
shall not preclude the spouse or child of such alien from separately
asserting an asylum or withholding of deportation or removal claim.
(e) Termination of asylum or withholding of deportation or removal
by the Executive Office for Immigration Review. An immigration judge or
the Board of Immigration Appeals may reopen a case pursuant to Sec. 3.2
or Sec. 3.23 of this chapter for the purpose of terminating a grant of
asylum or withholding of deportation or removal made under the
jurisdiction of an immigration judge. In such a reopened proceeding,
the Service must establish, by a preponderance of evidence, one or more
of the grounds set forth in paragraphs (a) or (b) of this section. In
addition, an immigration judge may terminate a grant of asylum or
withholding of deportation or removal made under the jurisdiction of
the Service at any time after the alien has been provided a notice of
intent to terminate by the Service. Any termination under this
paragraph may occur in conjunction with an exclusion, deportation or
removal proceeding.
(f) Termination of asylum for arriving aliens. If the Service
determines that an applicant for admission who had previously been
granted asylum in the United States falls within conditions set forth
in section 208(c)(2) of the Act and is inadmissible, the Service shall
issue a notice of intent to terminate asylum and initiate removal
proceedings under section 240 of the Act. The alien shall present his
or her response to the intent to terminate during proceedings before
the immigration judge.
Secs. 208.23--208.29 [Reserved]
Subpart B--Credible Fear of Persecution
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction
to make credible fear determinations, and the Executive Office for
Immigration Review has exclusive jurisdiction to review such
determinations. Except as otherwise provided in this subpart,
paragraphs (b) through (e) of this section are the exclusive procedures
applicable to credible fear interviews, determinations, and review
under section 235(b)(1)(B) of the Act.
(b) Interview and procedure. The asylum officer, as defined in
section 235(b)(1)(E) of the Act, will conduct the interview in a
nonadversarial manner, separate and apart from the general public. At
the time of the interview, the asylum officer shall verify that the
alien has received Form M-444, Information about Credible Fear
Interview in Expedited Removal Cases. The officer shall also determine
that the alien has an understanding of the credible fear determination
process. The alien may be required to register his or her identity
electronically or through any other means designated by the Attorney
General. The alien may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof, and may present
other evidence, if available. Such consultation shall be at no expense
to the Government and shall not unreasonably delay the process. Any
person or persons with whom the alien chooses to consult may be present
at the interview and may be permitted, in the discretion of the asylum
officer, to present a statement at the end of the interview. The asylum
officer, in his or her discretion, may place reasonable limits on the
number of such persons who may be present at the interview and on the
length of statement or statements made. If the alien is unable to
proceed effectively in English, and if the asylum officer is unable to
proceed competently in a language chosen by the alien, the asylum
officer shall arrange for the assistance of an interpreter in
conducting the interview. The interpreter may not be a representative
or employee of the applicant's country of nationality or, if the
applicant is stateless, the applicant's country of last habitual
residence. The asylum officer shall create a summary of the material
facts as stated by the applicant. At the conclusion of the interview,
the officer shall review the summary with the alien and provide the
alien with an opportunity to correct errors therein. The asylum officer
shall create a written record of his or her determination, including a
summary of the material facts as stated by the applicant, any
additional facts relied on by the officer, and the officer's
determination of whether, in light of such facts, the alien
[[Page 10346]]
has established a credible fear of persecution. The decision shall not
become final until reviewed by a supervisory asylum officer.
(c) Authority. Asylum officers conducting credible fear interviews
shall have the authorities described in Sec. 208.9(c).
(d) Referral for an asylum hearing. If an alien, other than an
alien stowaway, is found to have a credible fear of persecution, the
asylum officer will so inform the alien and issue a Form I-862, Notice
to Appear, for full consideration of the asylum claim in proceedings
under section 240 of the Act. Parole of the alien may only be
considered in accordance with section 212(d)(5) of the Act and
Sec. 212.5 of this chapter. If an alien stowaway is found to have a
credible fear of persecution, the asylum officer will so inform the
alien and issue a Form I-863, Notice to Referral to Immigration Judge,
for full consideration of the asylum claim in proceedings under
Sec. 208.2(b)(1).
(e) Removal of aliens with no credible fear of persecution. If an
alien is found not to have a credible fear of persecution, the asylum
officer shall provide the alien with a written notice of decision and
inquire whether the alien wishes to have an immigration judge review
the negative decision, using Form I-869, Record of Negative Credible
Fear Finding and Request for Review by Immigration Judge, on which the
alien shall indicate whether he or she desires such review. If the
alien is not a stowaway, the officer shall also order the alien removed
and issue a Form I-860, Notice and Order of Expedited Removal. If the
alien is a stowaway and the alien does not request a review by an
immigration judge, the asylum officer shall also refer the alien to the
district director for completion of removal proceedings in accordance
with section 235(a)(2) of the Act.
(f) Review by immigration judge. The asylum officer's negative
decision regarding credible fear shall be subject to review by an
immigration judge upon the applicant's request, in accordance with
section 235(b)(1)(B)(iii)(III) of the Act. If the alien requests such
review, the asylum officer shall arrange for the detention of the alien
and serve him or her with a Form I-863, Notice of Referral to
Immigration Judge. The record of determination, including copies of the
Form I-863, the asylum officer's notes, the summary of the material
facts, and other materials upon which the determination was based shall
be provided to the immigration judge with the negative determination.
Upon review of the asylum officer's negative credible fear
determination:
(1) If the immigration judge concurs with the determination of the
asylum officer that the alien does not have a credible fear of
persecution, the case shall be returned to the Service for removal of
the alien.
(2) If the immigration judge finds that the alien, other than an
alien stowaway, possesses a credible fear of persecution, the
immigration judge shall vacate the order of the asylum officer issued
on Form I-860 and the Service may commence removal proceedings under
section 240 of the Act, during which time the alien may file an asylum
application in accordance with Sec. 208.4(b)(3)(i).
(3) If the immigration judge finds that an alien stowaway possesses
a credible fear of persecution, the alien shall be allowed to file an
asylum application before the immigration judge in accordance with
Sec. 208.4(b)(3)(iii). The immigration judge shall decide the asylum
application as provided in that section. Such decision may be appealed
by either the stowaway or the Service to the Board of Immigration
Appeals. If and when a denial of the asylum application becomes final,
the alien shall be removed from the United States in accordance with
section 235(a)(2) of the Act. If and when an approval of the asylum
application becomes final, the Service shall terminate removal
proceedings under section 235(a)(2) of the Act.
PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED
ASYLUM
43. The authority citation for part 209 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252,
1282; 8 CFR part 2.
Sec. 209.1 [Amended]
44. In Sec. 209.1, paragraph (a)(1) is amended in the first
sentence by revising the reference to ``, 236, and 237'' to read ``and
240''.
45. In Sec. 209.2, the last sentence of paragraph (c) is revised to
read as follows:
Sec. 209.2 Adjustment of status of alien granted asylum.
* * * * *
(c) Application. * * * If an alien has been placed in deportation,
exclusion, or removal proceedings under any section of this Act (as
effective on the date such proceedings commenced), the application can
be filed and considered only in those proceedings.
* * * * *
PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS
46. Part 211 is revised to read as follows:
Sec.
211.1 Visas.
211.2 Passports.
211.3 Expiration of immigrant visas, reentry permits, refugee
travel documents, and Forms I-551.
211.4 Waiver of documents for returning residents.
211.5 Alien commuters.
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.
Sec. 211.1 Visas.
(a) General. Except as provided in paragraph (b) of this section,
each arriving alien applying for admission (or boarding the vessel or
aircraft on which he or she arrives) into the United States for lawful
permanent residence, or as a lawful permanent resident returning to an
unrelinquished lawful permanent residence in the United States, shall
present one of the following:
(1) A valid, unexpired immigrant visa;
(2) A valid, unexpired Form I-551, Alien Registration Receipt Card,
if seeking readmission after a temporary absence of less than 1 year,
or in the case of a crewmember regularly serving on board a vessel or
aircraft of United States registry seeking readmission after any
temporary absence connected with his or her duties as a crewman;
(3) A valid, unexpired Form I-327, Permit to Reenter the United
States;
(4) A valid, unexpired Form I-571, Refugee Travel Document,
properly endorsed to reflect admission as a lawful permanent resident;
(5) An expired Form I-551, Alien Registration Receipt Card,
accompanied by a filing receipt issued within the previous 6 months for
either a Form I-751, Petition to Remove the Conditions on Residence, or
Form I-829, Petition by Entrepreneur to Remove Conditions, if seeking
admission or readmission after a temporary absence of less than 1 year;
(6) A Form I-551, whether or not expired, presented by a civilian
or military employee of the United States Government who was outside
the United States pursuant to official orders, or by the spouse or
child of such employee who resided abroad while the employee or
serviceperson was on overseas duty and who is preceding, accompanying
or following to join within 4 months the employee, returning to the
United States; or
(7) Form I-551, whether or not expired, or a transportation letter
issued by an American consular officer,
[[Page 10347]]
presented by an employee of the American University of Beirut, who was
so employed immediately preceding travel to the United States,
returning temporarily to the United States before resuming employment
with the American University of Beirut, or resuming permanent residence
in the United States.
(b) Waivers. (1) A waiver of the visa required in paragraph (a) of
this section shall be granted without fee or application by the
district director, upon presentation of the child's birth certificate,
to a child born subsequent to the issuance of an immigrant visa to his
or her accompanying parent who applies for admission during the
validity of such a visa; or a child born during the temporary visit
abroad of a mother who is a lawful permanent resident alien, or a
national, of the United States, provided that the child's application
for admission to the United States is made within 2 years of birth, the
child is accompanied by the parent who is applying for readmission as a
permanent resident upon the first return of the parent to the United
States after the birth of the child, and the accompanying parent is
found to be admissible to the United States.
(2) For an alien described in paragraph (b)(1) of this section,
recordation of the child's entry shall be on Form I-181, Memorandum of
Creation of Record of Admission for Lawful Permanent Residence. The
carrier of such alien shall not be liable for a fine pursuant to
section 273 of the Act.
(3) If an immigrant alien returning to an unrelinquished lawful
permanent residence in the United States after a temporary absence
abroad believes that good cause exists for his or her failure to
present an immigrant visa, Form I-551, or reentry permit, the alien may
file an application for a waiver of this requirement with the district
director in charge of the port-of-entry. To apply for this waiver, the
alien must file Form I-193, Application for Waiver of Passport and/or
Visa, with the fee prescribed in Sec. 103.7(b)(1) of this chapter,
except that if the alien's Form I-551 was lost or stolen, the alien
shall instead file Form I-90, Application to Replace Alien Registration
Receipt Card, with the fee prescribed in Sec. 103.7(b)(1) of this
chapter, provided the temporary absence did not exceed 1 year. In the
exercise of discretion, the district director in charge of the port-of-
entry may waive the alien's lack of an immigrant visa, Form I-551, or
reentry permit and admit the alien as a returning resident, if the
district director is satisfied that the alien has established good
cause for the alien's failure to present an immigrant visa, Form I-551,
or reentry permit. Filing the Form I-90 will serve as both application
for replacement and as application for waiver of passport and visa,
without the obligation to file a separate waiver application.
(c) Immigrants having occupational status defined in section
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry
permit, or Form I-551 shall be invalid when presented by an alien who
has an occupational status under section 101(a)(15) (A), (E), or (G) of
the Act, unless he or she has previously submitted, or submits at the
time he or she applies for admission to the United States, the written
waiver required by section 247(b) of the Act and 8 CFR part 247.
(d) Returning temporary residents. (1) Form I-688, Temporary
Resident Card, may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 210.1 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within one year after a temporary absence abroad.
(2) Form I-688 may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 245a.2 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within 30 days after a temporary absence abroad, provided that the
aggregate of all such absences abroad during the temporary residence
period has not exceeded 90 days.
Sec. 211.2 Passports.
(a) A passport valid for the bearer's entry into a foreign country
at least 60 days beyond the expiration date of his or her immigrant
visa shall be presented by each immigrant except an immigrant who:
(1) Is the parent, spouse, or unmarried son or daughter of a United
States citizen or of an alien lawful permanent resident of the United
States;
(2) Is entering under the provisions of Sec. 211.1(a)(2) through
(a)(7);
(3) Is a child born during the temporary visit abroad of a mother
who is a lawful permanent resident alien, or a national, of the United
States, provided that the child's application for admission to the
United States is made within 2 years of birth, the child is accompanied
by the parent who is applying for readmission as a permanent resident
upon the first return of the parent to the United States after the
birth of the child, and the accompanying parent is found to be
admissible to the United States;
(4) Is a stateless person or a person who because of his or her
opposition to Communism is unwilling or unable to obtain a passport
from the country of his or her nationality, or is the accompanying
spouse or unmarried son or daughter of such immigrant; or
(5) Is a member of the Armed Forces of the United States.
(b) Except as provided in paragraph (a) of this section, if an
alien seeking admission as an immigrant with an immigrant visa believes
that good cause exists for his or her failure to present a passport,
the alien may file an application for a waiver of this requirement with
the district director in charge of the port-of-entry. To apply for this
waiver, the alien must file Form I-193, Application for Waiver of
Passport and/or Visa, with the fee prescribed in Sec. 103.7(b)(1) of
this chapter. In the exercise of discretion, the district director in
charge of the port-of-entry may waive the alien's lack of passport and
admit the alien as an immigrant, if the district director is satisfied
that the alien has established good cause for the alien's failure to
present a passport.
Sec. 211.3 Expiration of immigrant visas, reentry permits, refugee
travel documents, and Forms I-551.
An immigrant visa, reentry permit, refugee travel document, or Form
I--551 shall be regarded as unexpired if the rightful holder embarked
or enplaned before the expiration of his or her immigrant visa, reentry
permit, or refugee travel document, or with respect to Form I--551,
before the first anniversary of the date on which he or she departed
from the United States, provided that the vessel or aircraft on which
he or she so embarked or enplaned arrives in the United States or
foreign contiguous territory on a continuous voyage. The continuity of
the voyage shall not be deemed to have been interrupted by scheduled or
emergency stops of the vessel or aircraft en route to the United States
or foreign contiguous territory, or by a layover in foreign contiguous
territory necessitated solely for the purpose of effecting a
transportation connection to the United States.
Sec. 211.4 Waiver of documents for returning residents.
(a) Pursuant to the authority contained in section 211(b) of the
Act, an alien previously lawfully admitted to the United States for
permanent residence who, upon return from a temporary absence was
inadmissible because of failure to have or to present
[[Page 10348]]
a valid passport, immigrant visa, reentry permit, border crossing card,
or other document required at the time of entry, may be granted a
waiver of such requirement in the discretion of the district director
if the district director determines that such alien:
(1) Was not otherwise inadmissible at the time of entry, or having
been otherwise inadmissible at the time of entry is with respect
thereto qualified for an exemption from deportability under section
237(a)(1)(H) of the Act; and
(2) Is not otherwise subject to removal.
(b) Denial of a waiver by the district director is not appealable
but shall be without prejudice to renewal of an application and
reconsideration in proceedings before the immigration judge.
Sec. 211.5 Alien commuters.
(a) General. An alien lawfully admitted for permanent residence or
a special agricultural worker lawfully admitted for temporary residence
under section 210 of the Act may commence or continue to reside in
foreign contiguous territory and commute as a special immigrant defined
in section 101(a)(27)(A) of the Act to his or her place of employment
in the United States. An alien commuter engaged in seasonal work will
be presumed to have taken up residence in the United States if he or
she is present in this country for more than 6 months, in the
aggregate, during any continuous 12-month period. An alien commuter's
address report under section 265 of the Act must show his or her actual
residence address even though it is not in the United States.
(b) Loss of residence status. An alien commuter who has been out of
regular employment in the United States for a continuous period of 6
months shall be deemed to have lost residence status, notwithstanding
temporary entries in the interim for other than employment purposes. An
exception applies when employment in the United States was interrupted
for reasons beyond the individual's control other than lack of a job
opportunity or the commuter can demonstrate that he or she has worked
90 days in the United States in the aggregate during the 12-month
period preceding the application for admission into the United States.
Upon loss of status, Form I-551 or I-688 shall become invalid and must
be surrendered to an immigration officer.
(c) Eligibility for benefits under the immigration and nationality
laws. Until he or she has taken up residence in the United States, an
alien commuter cannot satisfy the residence requirements of the
naturalization laws and cannot qualify for any benefits under the
immigration laws on his or her own behalf or on behalf of his or her
relatives other than as specified in paragraph (a) of this section.
When an alien commuter takes up residence in the United States, he or
she shall no longer be regarded as a commuter. He or she may facilitate
proof of having taken up such residence by notifying the Service as
soon as possible, preferably at the time of his or her first reentry
for that purpose. Application for issuance of a new alien registration
receipt card to show that he or she has taken up residence in the
United States shall be made on Form I-90.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
47. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
48. Section 212.5 is amended by:
a. Revising paragraph (a) and (b);
b. Revising introductory text in paragraph (c);
c. Revising paragraph (c)(1); and by
d. Revising paragraph (d)(2)(i), to read as follows:
Sec. 212.5 Parole of aliens into the United States.
(a) The parole of aliens within the following groups who have been
or are detained in accordance with Sec. 235.3(b) or (c) of this chapter
would generally be justified only on a case-by-case basis for ``urgent
humanitarian reasons'' or ``significant public benefit,'' provided the
aliens present neither a security risk nor a risk of absconding:
(1) Aliens who have serious medical conditions in which continued
detention would not be appropriate;
(2) Women who have been medically certified as pregnant;
(3) Aliens who are defined as juveniles in Sec. 236.3(a) of this
chapter. The district director or chief patrol agent shall follow the
guidelines set forth in Sec. 236.3(a) of this chapter and paragraphs
(a)(3)(i) through (iii) of this section in determining under what
conditions a juvenile should be paroled from detention:
(i) Juveniles may be released to a relative (brother, sister, aunt,
uncle, or grandparent) not in Service detention who is willing to
sponsor a minor and the minor may be released to that relative
notwithstanding that the juvenile has a relative who is in detention.
(ii) If a relative who is not in detention cannot be located to
sponsor the minor, the minor may be released with an accompanying
relative who is in detention.
(iii) If the Service cannot locate a relative in or out of
detention to sponsor the minor, but the minor has identified a non-
relative in detention who accompanied him or her on arrival, the
question of releasing the minor and the accompanying non-relative adult
shall be addressed on a case-by-case basis;
(4) Aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the
United States; or
(5) Aliens whose continued detention is not in the public interest
as determined by the district director or chief patrol agent.
(b) In the cases of all other arriving aliens, except those
detained under Sec. 235.3(b) or (c) of this chapter and paragraph (a)
of this section, the district director or chief patrol agent may, after
review of the individual case, parole into the United States
temporarily in accordance with section 212(d)(5)(A) of the Act, any
alien applicant for admission, under such terms and conditions,
including those set forth in paragraph (c) of this section, as he or
she may deem appropriate. An alien who arrives at a port-of-entry and
applies for parole into the United States for the sole purpose of
seeking adjustment of status under section 245A of the Act, without
benefit of advance authorization as described in paragraph (e) of this
section shall be denied parole and detained for removal in accordance
with the provisions of Sec. 235.3(b) or (c) of this chapter. An alien
seeking to enter the United States for the sole purpose of applying for
adjustment of status under section 210 of the Act shall be denied
parole and detained for removal under Sec. 235.3(b) or (c) of this
chapter, unless the alien has been recommended for approval of such
application for adjustment by a consular officer at an Overseas
Processing Office.
(c) Conditions. In any case where an alien is paroled under
paragraph (a) or (b) of this section, the district director or chief
patrol agent may require reasonable assurances that the alien will
appear at all hearings and/or depart the United States when required to
do so. Not all factors listed need be present for parole to be
exercised. The district director or chief patrol agent should apply
reasonable discretion. The consideration of all relevant factors
includes:
[[Page 10349]]
(1) The giving of an undertaking by the applicant, counsel, or a
sponsor to ensure appearances or departure, and a bond may be required
on Form I-352 in such amount as the district director or chief patrol
agent may deem appropriate;
* * * * *
(d) * * *
(2)(i) On notice. In cases not covered by paragraph (d)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of the district director or chief
patrol agent in charge of the area in which the alien is located,
neither humanitarian reasons nor public benefit warrants the continued
presence of the alien in the United States, parole shall be terminated
upon written notice to the alien and he or she shall be restored to the
status that he or she had at the time of parole. When a charging
document is served on the alien, the charging document will constitute
written notice of termination of parole, unless otherwise specified.
Any further inspection or hearing shall be conducted under section 235
or 240 of the Act and this chapter, or any order of exclusion,
deportation, or removal previously entered shall be executed. If the
exclusion, deportation, or removal order cannot be executed by removal
within a reasonable time, the alien shall again be released on parole
unless in the opinion of the district director or the chief patrol
agent the public interest requires that the alien be continued in
custody.
* * * * *
49. In Sec. 212.6, paragraph (a)(2) is revised to read as follows:
Sec. 212.6 Nonresident alien border crossing cards.
(a) * * *
(2) Mexican border crossing card, Form I-186 or I-586. The rightful
holder of a nonresident alien Mexican border crossing card, Form I-186
or I-586, may be admitted under Sec. 235.1(f) of this chapter if found
otherwise admissible. However, any alien seeking entry as a visitor for
business or pleasure must also present a valid passport and shall be
issued Form I-94 if the alien is applying for admission from:
(i) A country other than Mexico or Canada, or
(ii) Canada if the alien has been in a country other than the
United States or Canada since leaving Mexico.
* * * * *
PART 213--ADMISSION OF ALIENS ON GIVING BOND OR CASH DEPOSIT
50. The authority citation for part 213 is revised to read as
follows:
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Sec. 213.1 [Amended]
51. Section 213.1 is amended in the last sentence by revising the
term ``part 103'' to read ``Sec. 103.6''.
PART 214--NONIMMIGRANT CLASSES
52. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
53. Section 214.1 is amended by revising paragraph (c)(4)(iv) to
read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(c) * * *
(4) * * *
(iv) The alien is not the subject of deportation proceedings under
section 242 of the Act (prior to April 1, 1997) or removal proceedings
under section 240 of the Act.
* * * * *
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
54. The authority citation for part 216 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
55. Section 216.3 is revised to read as follows:
Sec. 216.3 Termination of conditional resident status.
(a) During the two-year conditional period. The director shall send
a formal written notice to the conditional permanent resident of the
termination of the alien's conditional permanent resident status if the
director determines that any of the conditions set forth in section
216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true,
or it becomes known to the government that an alien entrepreneur who
was admitted pursuant to section 203(b)(5) of the Act obtained his or
her investment capital through other than legal means (such as through
the sale of illegal drugs). If the Service issues a notice of intent to
terminate an alien's conditional resident status, the director shall
not adjudicate Form I-751 or Form I-829 until it has been determined
that the alien's status will not be terminated. During this time, the
alien shall continue to be a lawful conditional permanent resident with
all the rights, privileges, and responsibilities provided to persons
possessing such status. Prior to issuing the notice of termination, the
director shall provide the alien with an opportunity to review and
rebut the evidence upon which the decision is to be based, in
accordance with Sec. 103.2(b)(2) of this chapter. The termination of
status, and all of the rights and privileges concomitant thereto
(including authorization to accept or continue in employment in this
country), shall take effect as of the date of such determination by the
director, although the alien may request a review of such determination
in removal proceedings. In addition to the notice of termination, the
director shall issue a notice to appear in accordance with 8 CFR part
239. During the ensuing removal proceedings, the alien may submit
evidence to rebut the determination of the director. The burden of
proof shall be on the Service to establish, by a preponderance of the
evidence, that one or more of the conditions in section 216(b)(1) or
216A(b)(1) of the Act, whichever is applicable, are true, or that an
alien entrepreneur who was admitted pursuant to section 203(b)(5) of
the Act obtained his or her investment capital through other than legal
means (such as through the sale of illegal drugs).
(b) Determination of fraud after two years. If, subsequent to the
removal of the conditional basis of an alien's permanent resident
status, the director determines that an alien spouse obtained permanent
resident status through a marriage which was entered into for the
purpose of evading the immigration laws or an alien entrepreneur
obtained permanent resident status through a commercial enterprise
which was improper under section 216A(b)(1) of the Act, the director
may institute rescission proceedings pursuant to section 246 of the Act
(if otherwise appropriate) or removal proceedings under section 240 of
the Act.
56. Section 216.4 is amended by:
a. Revising paragraphs (a)(6), and (b)(3);
b. Revising paragraph, (c)(4);
c. Removing the unnumbered paragraph immediately after paragraph
(c)(4); and by
d. Revising paragraph (d)(2) to read as follows:
Sec. 216.4 Joint petition to remove conditional basis of lawful
permanent resident status for alien spouse.
(a) * * *
[[Page 10350]]
(6) Termination of status for failure to file petition. Failure to
properly file Form I-751 within the 90-day period immediately preceding
the second anniversary of the date on which the alien obtained lawful
permanent residence on a conditional basis shall result in the
automatic termination of the alien's permanent residence status and the
initiation of proceedings to remove the alien from the United States.
In such proceedings the burden shall be on the alien to establish that
he or she complied with the requirement to file the joint petition
within the designated period. Form I-751 may be filed after the
expiration of the 90-day period only if the alien establishes to the
satisfaction of the director, in writing, that there was good cause for
the failure to file Form I-751 within the required time period. If the
joint petition is filed prior to the jurisdiction vesting with the
immigration judge in removal proceedings and the director excuses the
late filing and approves the petition, he or she shall restore the
alien's permanent residence status, remove the conditional basis of
such status and cancel any outstanding notice to appear in accordance
with Sec. 239.2 of this chapter. If the joint petition is not filed
until after jurisdiction vests with the immigration judge, the
immigration judge may terminate the matter upon joint motion by the
alien and the Service.
(b) * * *
(3) Termination of status for failure to appear for interview. If
the conditional resident alien and/or the petitioning spouse fail to
appear for an interview in connection with the joint petition required
by section 216(c) of the Act, the alien's permanent residence status
will be automatically terminated as of the second anniversary of the
date on which the alien obtained permanent residence. The alien shall
be provided with written notification of the termination and the
reasons therefor, and a notice to appear shall be issued placing the
alien under removal proceedings. The alien may seek review of the
decision to terminate his or her status in such proceedings, but the
burden shall be on the alien to establish compliance with the interview
requirements. If the alien submits a written request that the interview
be rescheduled or that the interview be waived, and the director
determines that there is good cause for granting the request, the
interview may be rescheduled or waived, as appropriate. If the
interview is rescheduled at the request of the petitioners, the Service
shall not be required to conduct the interview within the 90-day period
following the filing of the petition.
(c) * * *
(4) A fee or other consideration was given (other than a fee or
other consideration to an attorney for assistance in preparation of a
lawful petition) in connection with the filing of the petition through
which the alien obtained conditional permanent residence. If derogatory
information is determined regarding any of these issues, the director
shall offer the petitioners the opportunity to rebut such information.
If the petitioners fail to overcome such derogatory information the
director may deny the joint petition, terminate the alien's permanent
residence, and issue a notice to appear to initiate removal
proceedings. If derogatory information not relating to any of these
issues is determined during the course of the interview, such
information shall be forwarded to the investigations unit for
appropriate action. If no unresolved derogatory information is
determined relating to these issues, the petition shall be approved and
the conditional basis of the alien's permanent residence status
removed, regardless of any action taken or contemplated regarding other
possible grounds for removal.
(d) * * *
(2) Denial. If the director denies the joint petition, he or she
shall provide written notice to the alien of the decision and the
reason(s) therefor and shall issue a notice to appear under section 239
of the Act and 8 CFR part 239. The alien's lawful permanent resident
status shall be terminated as of the date of the director's written
decision. The alien shall also be instructed to surrender any Alien
Registration Receipt Card previously issued by the Service. No appeal
shall lie from the decision of the director; however, the alien may
seek review of the decision in removal proceedings. In such proceedings
the burden of proof shall be on the Service to establish, by a
preponderance of the evidence, that the facts and information set forth
by the petitioners are not true or that the petition was properly
denied.
57. Section 216.5 is amended by revising paragraphs (a), (d),
(e)(1), (e)(3)(ii), and (f) to read as follows:
Sec. 216.5 Waiver of requirement to file joint petition to remove
conditions by alien spouse.
(a) General. (1) A conditional resident alien who is unable to meet
the requirements under section 216 of the Act for a joint petition for
removal of the conditional basis of his or her permanent resident
status may file Form I-751, Petition to Remove the Conditions on
Residence, if the alien requests a waiver, was not at fault in failing
to meet the filing requirement, and the conditional resident alien is
able to establish that:
(i) Deportation or removal from the United States would result in
extreme hardship;
(ii) The marriage upon which his or her status was based was
entered into in good faith by the conditional resident alien, but the
marriage was terminated other than by death, and the conditional
resident was not at fault in failing to file a timely petition; or
(iii) The qualifying marriage was entered into in good faith by the
conditional resident but during the marriage the alien spouse or child
was battered by or subjected to extreme cruelty committed by the
citizen or permanent resident spouse or parent.
(2) A conditional resident who is in exclusion, deportation, or
removal proceedings may apply for the waiver only until such time as
there is a final order of exclusion, deportation or removal.
* * * * *
(d) Interview. The service center director may refer the
application to the appropriate local office and require that the alien
appear for an interview in connection with the application for a
waiver. The director shall deny the application and initiate removal
proceedings if the alien fails to appear for the interview as required,
unless the alien establishes good cause for such failure and the
interview is rescheduled.
(e) Adjudication of waiver application. (1) Application based on
claim of hardship. In considering an application for a waiver based
upon an alien's claim that extreme hardship would result from the
alien's removal from the United States, the director shall take into
account only those factors that arose subsequent to the alien's entry
as a conditional permanent resident. The director shall bear in mind
that any removal from the United States is likely to result in a
certain degree of hardship, and that only in those cases where the
hardship is extreme should the application for a waiver be granted. The
burden of establishing that extreme hardship exists rests solely with
the applicant.
* * * * *
(3) * * *
(ii) A conditional resident or former conditional resident who has
not departed the United States after termination of resident status may
apply for the waiver. The conditional resident may apply for the waiver
regardless of
[[Page 10351]]
his or her present marital status. The conditional resident may still
be residing with the citizen or permanent resident spouse, or may be
divorced or separated.
* * * * *
(f) Decision. The director shall provide the alien with written
notice of the decision on the application for waiver. If the decision
is adverse, the director shall advise the alien of the reasons
therefor, notify the alien of the termination of his or her permanent
residence status, instruct the alien to surrender any Alien
Registration Receipt Card issued by the Service and issue a notice to
appear placing the alien in removal proceedings. No appeal shall lie
from the decision of the director; however, the alien may seek review
of such decision in removal proceedings.
PART 217--VISA WAIVER PILOT PROGRAM
58. The authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
59. Section 217.1 is revised to read as follows:
Sec. 217.1 Scope.
The Visa Waiver Pilot Program (VWPP) described in this section is
established pursuant to the provisions of section 217 of the Act.
60. Section 217.2 is revised to read as follows:
Sec. 217.2 Eligibility.
(a) Definitions. As used in this part, the term:
Carrier refers to the owner, charterer, lessee, or authorized agent
of any commercial vessel or commercial aircraft engaged in transporting
passengers to the United States from a foreign place.
Designated country refers to Andorra, Argentina, Australia,
Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland,
Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New
Zealand, Norway, San Marino, Spain, Sweden, Switzerland, and the United
Kingdom. The United Kingdom refers only to British citizens who have
the unrestricted right of permanent abode in the United Kingdom
(England, Scotland, Wales, Northern Ireland, the Channel Islands and
the Isle of Man); it does not refer to British overseas citizens,
British dependent territories' citizens, or citizens of British
Commonwealth countries. Effective April 1, 1995, until September 30,
1998, or the expiration of the Visa Waiver Pilot Program, whichever
comes first, Ireland has been designated as a Visa Waiver Pilot Program
country with Probationary Status in accordance with section 217(g) of
the Act.
Round trip ticket means any return trip transportation ticket in
the name of an arriving Visa Waiver Pilot Program applicant on a
participating carrier valid for at least 1 year, electronic ticket
record, airline employee passes indicating return passage, individual
vouchers for return passage, group vouchers for return passage for
charter flights, and military travel orders which include military
dependents for return to duty stations outside the United States on
U.S. military flights. A period of validity of 1 year need not be
reflected on the ticket itself, provided that the carrier agrees that
it will honor the return portion of the ticket at any time, as provided
in Form I-775, Visa Waiver Pilot Program Agreement.
(b) Special program requirements. (1) General. In addition to
meeting all of the requirements for the Visa Waiver Pilot Program
specified in section 217 of the Act, each applicant must possess a
valid, unexpired passport issued by a designated country and present a
completed, signed Form I-94W, Nonimmigrant Visa Waiver Arrival/
Departure Form.
(2) Persons previously removed as deportable aliens. Aliens who
have been deported or removed from the United States, after having been
determined deportable, require the consent of the Attorney General to
apply for admission to the United States pursuant to section
212(a)(9)(A)(iii) of the Act. Such persons may not be admitted to the
United States under the provisions of this part notwithstanding the
fact that the required consent of the Attorney General may have been
secured. Such aliens must secure a visa in order to be admitted to the
United States as nonimmigrants, unless otherwise exempt.
(c) Restrictions on manner of arrival. (1) Applicants arriving by
air and sea. Applicants must arrive on a carrier that is signatory to a
Visa Waiver Pilot Program Agreement and at the time of arrival must
have a round trip ticket that will transport the traveler out of the
United States to any other foreign port or place as long as the trip
does not terminate in contiguous territory or an adjacent island;
except that the round trip ticket may transport the traveler to
contiguous territory or an adjacent island, if the traveler is a
resident of the country of destination.
(2) Applicants arriving at land border ports-of-entry. Any Visa
Waiver Pilot Program applicant arriving at a land border port-of-entry
must provide evidence to the immigration officer of financial solvency
and a domicile abroad to which the applicant intends to return. An
applicant arriving at a land-border port-of-entry will be charged a fee
as prescribed in Sec. 103.7(b)(1) of this chapter for issuance of Form
I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form. A round-trip
transportation ticket is not required of applicants at land border
ports-of-entry.
(d) Aliens in transit. An alien who is in transit through the
United States is eligible to apply for admission under the Visa Waiver
Pilot Program, provided the applicant meets all other program
requirements.
61. Section 217.3 is revised to read as follows:
Sec. 217.3 Maintenance of status.
(a) Satisfactory departure. If an emergency prevents an alien
admitted under this part from departing from the United States within
his or her period of authorized stay, the district director having
jurisdiction over the place of the alien's temporary stay may, in his
or her discretion, grant a period of satisfactory departure not to
exceed 30 days. If departure is accomplished during that period, the
alien is to be regarded as having satisfactorily accomplished the visit
without overstaying the allotted time.
(b) Readmission after departure to contiguous territory or adjacent
island. An alien admitted to the United States under this part may be
readmitted to the United States after a departure to foreign contiguous
territory or adjacent island for the balance of his or her original
Visa Waiver Pilot Program admission period if he or she is otherwise
admissible and meets all the conditions of this part with the exception
of arrival on a signatory carrier.
62. Section 217.4 is amended by:
a. Revising the section heading:
b. Removing paragraph (a);
c. Redesignating paragraphs (b), (c), and (d) as paragraphs (a),
(b), and (c) respectively;
d. Revising newly redesignated paragraph (a)(1);
e. Adding a new paragraph (a)(3);
f. Revising newly redesignated paragraph (b); and by
g. Revising newly redesignated paragraph (c) to read as follows:
Sec. 217.4 Inadmissibility and deportability.
(a) Determinations of inadmissibility. (1) 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
[[Page 10352]]
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
refused admission into the United States and removed. Such refusal and
removal shall be made at the level of the port director or officer-in-
charge, or an officer acting in that capacity, and 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 Sec. 208.2(b)(1) and (2) of this chapter.
* * * * *
(3) Refusal of admission under paragraph (a)(1) of this section
shall not constitute removal for purposes of the Act.
(b) Determination of deportability. (1) An alien who has been
admitted to the United States under the provisions of section 217 of
the Act and of this part who is determined by an immigration officer to
be deportable from the United States under one or more of the grounds
of deportability listed in section 237 of the Act shall be removed from
the United States to his or her country of nationality or last
residence. Such removal shall be determined by the district director
who has jurisdiction over the place where the alien is found, and shall
be effected without referral of the alien to an immigration judge for a
determination of deportability, except that an alien admitted as a Visa
Waiver Pilot Program visitor who applies for asylum in the United
States must be issued a Form I-863 for a proceeding in accordance with
Sec. 208.2(b)(1) and (2) of this chapter.
(2) Removal by the district director under paragraph (b)(1) of this
section is equivalent in all respects and has the same consequences as
removal after proceedings conducted under section 240 of the Act.
(c)(1) Removal of inadmissible aliens who arrived by air or sea.
Removal of an alien from the United States under this section may be
effected using the return portion of the round trip passage presented
by the alien at the time of entry to the United States as required by
section 217(a)(7) of the Act. Such removal shall be on the first
available means of transportation to the alien's point of embarkation
to the United States. Nothing in this part absolves the carrier of the
responsibility to remove any inadmissible or deportable alien at
carrier expense, as provided in the carrier agreement.
(2) Removal of inadmissible and deportable aliens who arrived at
land border ports-of-entry. Removal under this section will be by the
first available means of transportation deemed appropriate by the
district director.
Sec. 217.5 [Removed and reserved]
63. Section 217.5 is removed and reserved.
64. Section 217.6 is revised to read as follows:
Sec. 217.6 Carrier agreements.
(a) General. The carrier agreements referred to in section 217(e)
of the Act shall be made by the Commissioner on behalf of the Attorney
General and shall be on Form I-775, Visa Waiver Pilot Program
Agreement.
(b) Termination of agreements. The Commissioner, on behalf of the
Attorney General, may terminate any carrier agreement under this part,
with 5 days notice to a carrier, for the carrier's failure to meet the
terms of such agreement. As a matter of discretion, the Commissioner
may notify a carrier of the existence of a basis for termination of a
carrier agreement under this part and allow the carrier a period not to
exceed 15 days within which the carrier may bring itself into
compliance with the terms of the carrier agreement. The agreement shall
be subject to cancellation by either party for any reason upon 15 days'
written notice to the other party.
PART 221--ADMISSION OF VISITORS OR STUDENTS
65. The authority citation for part 221 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1201; 8 CFR part 2.
Sec. 221.1 [Amended]
66. Section 221.1 is amended in the last sentence by revising the
term ``part 103'' to read ``Sec. 103.6''.
PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE
PAROLE DOCUMENTS
67. The authority citation for part 223 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226,
1227, 1251; Protocol Relating to the Status of Refugees, November 1,
1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 2.
68. In Sec. 223.1, paragraph (b) is revised to read as follows:
Sec. 223.1 Purpose of documents.
* * * * *
(b) Refugee travel document. A refugee travel document is issued
pursuant to this part and article 28 of the United Nations Convention
of July 29, 1951, for the purpose of travel. Except as provided in
Sec. 223.3(d)(2)(i), a person who holds refugee status pursuant to
section 207 of the Act, or asylum status pursuant to section 208 of the
Act, must have a refugee travel document to return to the United States
after temporary travel abroad unless he or she is in possession of a
valid advance parole document.
69. In Sec. 223.2, paragraph (b)(2) is revised to read as follows:
Sec. 223.2 Processing.
* * * * *
(b) * * *
(2) Refugee travel document. (i) General. Except as otherwise
provided in this section, an application may be approved if filed by a
person who is in the United States at the time of application, and
either holds valid refugee status under section 207 of the Act, valid
asylum status under section 208 of the Act, or is a permanent resident
and received such status as a direct result of his or her asylum or
refugee status.
(ii) Discretionary authority to adjudicate an application from an
alien not within the United States. As a matter of discretion, a
district director having jurisdiction over a port-of-entry or a
preinspection station where an alien is an applicant for admission, or
an overseas district director having jurisdiction over the place where
an alien is physically present, may accept and adjudicate an
application for a refugee travel document from an alien who previously
had been admitted to the United States as a refugee, or who previously
had been granted asylum status in the United States, and who had
departed from the United States without having applied for such refugee
travel document, provided:
(A) The alien submits a Form I-131, Application for Travel
Document, with the fee required under Sec. 103.7(b)(1) of this chapter;
(B) The district director is satisfied that the alien did not
intend to abandon his or her refugee status at the time of departure
from the United States;
(C) The alien did not engage in any activities while outside the
United States that would be inconsistent with continued refugee or
asylee status; and
[[Page 10353]]
(D) The alien has been outside the United States for less than 1
year since his or her last departure.
* * * * *
70. In Sec. 223.3, paragraph (d)(2) is revised to read as follows:
Sec. 223.3 Validity and effect on admissibility.
* * * * *
(d) * * *
(2) Refugee travel document. (i) Inspection and immigration status.
Upon arrival in the United States, an alien who presents a valid
unexpired refugee travel document, or who has been allowed to file an
application for a refugee travel document and this application has been
approved under the procedure set forth in Sec. 223.2(b)(2)(ii), shall
be examined as to his or her admissibility under the Act. An alien
shall be accorded the immigration status endorsed in his or her refugee
travel document, or (in the case of an alien discussed in
Sec. 223.2(b)(2)(ii)) which will be endorsed in such document, unless
he or she is no longer eligible for that status, or he or she applies
for and is found eligible for some other immigration status.
(ii) Inadmissibility. If an alien who presents a valid unexpired
refugee travel document appears to the examining immigration officer to
be inadmissible, he or she shall be referred for proceedings under
section 240 of the Act. Section 235(c) of the Act shall not be
applicable.
PART 232--DETENTION OF ALIENS FOR PHYSICAL AND MENTAL EXAMINATION
71. The heading for part 232 is revised to read as set forth above.
72. The authority citation for part 232 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1222, 1224, 1252; 8 CFR part 2.
Sec. 232.1 [Redesignated and revised]
73. Section 232.1 is redesignated as Sec. 232.3, and is revised to
read as follows:
Sec. 232.3 Arriving aliens.
When a district director has reasonable grounds for believing that
persons arriving in the United States should be detained for reasons
specified in section 232 of the Act, he or she shall, after
consultation with the United States Public Health Service at the port-
of-entry, notify the master or agent of the arriving vessel or aircraft
of his or her intention to effect such detention by serving on the
master or agent Form I-259 in accordance with Sec. 235.3(a) of this
chapter.
Secs. 234.1 and 234.2 [Redesignated as Secs. 232.1 and 232.2
respectively]
74. Sections 234.1 and 234.2 are redesignated as Secs. 232.1 and
232.2 respectively.
PART 234--[REMOVED]
75. Part 234 is removed.
76. The following parts are redesignated as set forth in the table
below:
------------------------------------------------------------------------
Old part New part
------------------------------------------------------------------------
Part 238.................................. Part 233.
Part 239.................................. Part 234.
------------------------------------------------------------------------
PART 233--CONTRACTS WITH TRANSPORTATION LINES
77. The authority citation for newly designated part 233 continues
to read as follows:
Authority: 8 U.S.C. 1103, 1228; 8 CFR part 2.
78. Newly redesignated Sec. 233.1 is revised to read as follows:
Sec. 233.1 Contracts.
The contracts with transportation lines referred to in section
233(c) of the Act may be entered into by the Executive Associate
Commissioner for Programs, or by an immigration officer designated by
the Executive Associate Commissioner for Programs on behalf of the
government and shall be documented on Form I-420. The contracts with
transportation lines referred to in section 233(a) of the Act shall be
made by the Commissioner on behalf of the government and shall be
documented on Form I-426. The contracts with transportation lines
desiring their passengers to be preinspected at places outside the
United States shall be made by the Commissioner on behalf of the
government and shall be documented on Form I-425; except that contracts
for irregularly operated charter flights may be entered into by the
Associate Commissioner for Examinations or an immigration officer
designated by the Executive Associate Commissioner for Programs and
having jurisdiction over the location where the inspection will take
place.
79. In newly redesignated Sec. 233.3, paragraph (b) is revised to
read as follows (the list of agreements is removed):
Sec. 233.3 Aliens in immediate and continuous transit.
* * * * *
(b) Signatory lines. A list of currently effective Form I-426
agreements is maintained by the Service's Headquarters Office of
Inspections and is available upon written request.
* * * * *
80. Newly redesignated Sec. 233.4 is revised to read as follows:
Sec. 233.4 Preinspection outside the United States.
(a) Form I-425 agreements. A transportation line bringing
applicants for admission to the United States through preinspection
sites outside the United States shall enter into an agreement on Form
I-425. Such an agreement shall be negotiated directly by the Service's
Headquarters Office of Inspections and the head office of the
transportation line.
(b) Signatory lines. A list of transportation lines with currently
valid transportation agreements on Form I-425 is maintained by the
Service's Headquarters Office of Inspections and is available upon
written request.
81. Newly redesignated Sec. 233.5 is revised to read as follows:
Sec. 233.5 Aliens entering Guam pursuant to section 14 of Public Law
99-396, ``Omnibus Territories Act.'
A transportation line bringing aliens to Guam under the visa waiver
provisions of Sec. 212.1(e) of this chapter shall enter into an
agreement on Form I-760. Such agreements shall be negotiated directly
by the Service's Headquarters and head offices of the transportation
lines.
PART 234--DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY
CIVIL AIRCRAFT
82. The heading for newly redesignated part 234 is revised as set
forth above.
83. The authority citation for newly designated part 234 is revised
to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
Sec. 234.3 [Amended]
84. Newly redesignated Sec. 234.3 is amended by removing the last
sentence.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
85. The authority citation for part 235 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
86. Section 235.1 is revised to read as follows:
Sec. 235.1 Scope of examination.
(a) General. Application to lawfully enter the United States shall
be made in
[[Page 10354]]
person to an immigration officer at a U.S. port-of-entry when the port
is open for inspection, or as otherwise designated in this section.
(b) U.S. citizens. A person claiming U.S. citizenship must
establish that fact to the examining officer's satisfaction and must
present a U.S. passport if such passport is required under the
provisions of 22 CFR part 53. If such applicant for admission fails to
satisfy the examining immigration officer that he or she is a U.S.
citizen, he or she shall thereafter be inspected as an alien.
(c) Alien members of United States Armed Forces and members of a
force of a NATO country. Any alien member of the United States Armed
Forces who is in the uniform of, or bears documents identifying him or
her as a member of, such Armed Forces, and who is coming to or
departing from the United States under official orders or permit of
such Armed Forces is not subject to the removal provisions of the Act.
A member of the force of a NATO country signatory to Article III of the
Status of Forces Agreement seeking to enter the United States under
official orders is exempt from the control provision of the Act. Any
alien who is a member of either of the foregoing classes may, upon
request, be inspected and his or her entry as an alien may be recorded.
If the alien does not appear to the examining immigration officer to be
clearly and beyond a doubt entitled to enter the United States under
the provisions of the Act, the alien shall be so informed and his or
her entry shall not be recorded.
(d) Alien applicants for admission. (1) Each alien seeking
admission at a United States port-of-entry shall present whatever
documents are required and shall establish to the satisfaction of the
immigration officer that he or she is not subject to removal under the
immigration laws, Executive Orders, or Presidential Proclamations and
is entitled under all of the applicable provisions of the immigration
laws and this chapter to enter the United States. A person claiming to
have been lawfully admitted for permanent residence must establish that
fact to the satisfaction of the inspecting immigration officer and must
present proper documents in accordance with Sec. 211.1 of this chapter.
(2) An alien present in the United States who has not been admitted
or paroled or an alien who seeks entry at other than an open,
designated port-of-entry, except as otherwise permitted in this
section, is subject to the provisions of section 212(a) of the Act and
to removal under section 235(b) or 240 of the Act.
(3) An alien who is brought to the United States, whether or not to
a designated port-of-entry and regardless of the means of
transportation, after having been interdicted in international or
United States waters, is considered an applicant for admission and
shall be examined under section 235(b) of the Act.
(4) An alien stowaway is not an applicant for admission and may not
be admitted to the United States. A stowaway shall be removed from the
United States under section 235(a)(2) of the Act. The provisions of
section 240 of the Act are not applicable to stowaways, nor is the
stowaway entitled to further hearing or review of the removal, except
that an alien stowaway who indicates an intention to apply for asylum
shall be referred to an asylum officer for a determination of credible
fear of persecution in accordance with section 235(b)(1)(B) of the Act
and Sec. 208.30 of this chapter. An alien stowaway who is determined to
have a credible fear of persecution shall have his or her asylum
application adjudicated in accordance with Sec. 208.2(b)(2) of this
chapter. Nothing in this section shall be construed to require
expedited removal proceedings in accordance with section 235(b)(1) of
the Act. A stowaway who absconds either prior to inspection by an
immigration officer or after being ordered removed as a stowaway
pursuant to section 235(a)(2) of the Act is not entitled to removal
proceedings under section 240 of the Act and shall be removed under
section 235(a)(2) of the Act as if encountered upon arrival. A stowaway
who has been removed pursuant to section 235(a)(2) of the Act and this
section shall be considered to have been formally removed from the
United States for all purposes under the Act.
(e) U.S. citizens, lawful permanent residents of the United States,
Canadian nationals, and other residents of Canada having a common
nationality with Canadians, entering the United States by small craft.
Upon being inspected by an immigration officer and found eligible for
admission as a citizen of the United States, or found eligible for
admission as a lawful permanent resident of the United States, or in
the case of a Canadian national or other resident of Canada having a
common nationality with Canadians being found eligible for admission as
a temporary visitor for pleasure, a person who desires to enter the
United States from Canada in a small pleasure craft of less than 5 net
tons without merchandise may be issued, upon application and payment of
a fee prescribed under Sec. 103.7(b)(1) of this chapter, Form I-68,
Canadian Border Boat Landing Card, and may thereafter enter the United
States along with the immediate shore area of the United States on the
body of water designated on the Form I-68 from time to time for the
duration of that navigation season without further inspection. In the
case of a Canadian national or other resident of Canada having a common
nationality with Canadians, the Form I-68 shall be valid only for the
purpose of visits not to exceed 72 hours and only if the alien will
remain in nearby shopping areas, nearby residential neighborhoods, or
other similar areas adjacent to the immediate shore area of the United
States. If the bearer of Form I-68 seeks to enter the United States by
means other than small craft of less than 5 net tons without
merchandise, or if he or she seeks to enter the United States for other
purposes, or if he or she is an alien, other than a lawful permanent
resident alien of the United States, and intends to proceed beyond an
area adjacent to the immediate shore area of the United States, or
remains in the United States longer than 72 hours, he or she must apply
for admission at a United States port-of-entry.
(f) Form I-94, Arrival Departure Record. (1) Unless otherwise
exempted, each arriving nonimmigrant who is admitted to the United
States shall be issued, upon payment of a fee prescribed in
Sec. 103.7(b)(1) of this chapter for land border admissions, a Form I-
94 as evidence of the terms of admission. A Form I-94 issued at a land
border port-of-entry shall be considered issued for multiple entries
unless specifically annotated for a limited number of entries. A Form
I-94 issued at other than a land border port-of-entry, unless issued
for multiple entries, must be surrendered upon departure from the
United States in accordance with the instructions on the form. Form I-
94 is not required by:
(i) Any nonimmigrant alien described in Sec. 212.1(a) of this
chapter and 22 CFR 41.33 who is admitted as a visitor for business or
pleasure or admitted to proceed in direct transit through the United
States;
(ii) Any nonimmigrant alien residing in the British Virgin Islands
who was admitted only to the U.S. Virgin Islands as a visitor for
business or pleasure under Sec. 212.1(b) of this chapter;
(iii) Any Mexican national in possession of a valid nonresident
alien Mexican border crossing card, or a valid Mexican passport and a
multiple-entry nonimmigrant visa issued under section 101(a)(15)(B) of
the Act, who is admitted as a nonimmigrant visitor at a Mexican border
port of entry for a
[[Page 10355]]
period not to exceed 72 hours to visit within 25 miles of the border;
(iv) Bearers of Mexican diplomatic or official passports described
in Sec. 212.1(c-1) of this chapter.
(2) Paroled aliens. Any alien paroled into the United States under
section 212(d)(5) of the Act, including any alien crewmember, shall be
issued a completely executed Form I-94, endorsed with the parole stamp.
87. Section 235.2 is revised to read as follows:
Sec. 235.2 Parole for deferred inspection.
(a) A district director may, in his or her discretion, defer the
inspection of any vessel or aircraft, or of any alien, to another
Service office or port-of-entry. Any alien coming to a United States
port from a foreign port, from an outlying possession of the United
States, from Guam, Puerto Rico, or the Virgin Islands of the United
States, or from another port of the United States at which examination
under this part was deferred, shall be regarded as an applicant for
admission at that onward port.
(b) An examining immigration officer may defer further examination
and refer the alien's case to the district director having jurisdiction
over the place where the alien is seeking admission, or over the place
of the alien's residence or destination in the United States, if the
examining immigration officer has reason to believe that the alien can
overcome a finding of inadmissibility by:
(1) Posting a bond under section 213 of the Act;
(2) Seeking and obtaining a waiver under section 211 or 212(d)(3)
or (4) of the Act; or
(3) Presenting additional evidence of admissibility not available
at the time and place of the initial examination.
(c) Such deferral shall be accomplished pursuant to the provisions
of section 212(d)(5) of the Act for the period of time necessary to
complete the deferred inspection.
(d) Refusal of a district director to authorize admission under
section 213 of the Act, or to grant an application for the benefits of
section 211 or section 212(d) (3) or (4) of the Act, shall be without
prejudice to the renewal of such application or the authorizing of such
admission by the immigration judge without additional fee.
(e) Whenever an alien on arrival is found or believed to be
suffering from a disability that renders it impractical to proceed with
the examination under the Act, the examination of such alien, members
of his or her family concerning whose admissibility it is necessary to
have such alien testify, and any accompanying aliens whose protection
or guardianship will be required should such alien be found
inadmissible shall be deferred for such time and under such conditions
as the district director in whose district the port is located imposes.
88. Section 235.3 is revised to read as follows:
Sec. 235.3 Inadmissible aliens and expedited removal.
(a) Detention prior to inspection. All persons arriving at a port-
of-entry in the United States by vessel or aircraft shall be detained
aboard the vessel or at the airport of arrival by the owner, agent,
master, commanding officer, person in charge, purser, or consignee of
such vessel or aircraft until admitted or otherwise permitted to land
by an officer of the Service. Notice or order to detain shall not be
required. The owner, agent, master, commanding officer, person in
charge, purser, or consignee of such vessel or aircraft shall deliver
every alien requiring examination to an immigration officer for
inspection or to a medical officer for examination. The Service will
not be liable for any expenses related to such detention or
presentation or for any expenses of a passenger who has not been
presented for inspection and for whom a determination has not been made
concerning admissibility by a Service officer.
(b) Expedited removal. (1) Applicability. The expedited removal
provisions shall apply to the following classes of aliens who are
determined to be inadmissible under section 212(a)(6)(C) or (7) of the
Act:
(i) Arriving aliens, as defined in Sec. 1.1(q) of this chapter,
except for citizens of Cuba arriving at a United States port-of-entry
by aircraft;
(ii) As specifically designated by the Commissioner, aliens who
arrive in, attempt to enter, or have entered the United States without
having been admitted or paroled following inspection by an immigration
officer at a designated port-of-entry, and who have not established to
the satisfaction of the immigration officer that they have been
physically present in the United States continuously for the 2-year
period immediately prior to the date of determination of
inadmissibility. The Commissioner shall have the sole discretion to
apply the provisions of section 235(b)(1) of the Act, at any time, to
any class of aliens described in this section. The Commissioner's
designation shall become effective upon publication of a notice in the
Federal Register. However, if the Commissioner determines, in the
exercise of discretion, that the delay caused by publication would
adversely affect the interests of the United States or the effective
enforcement of the immigration laws, the Commissioner's designation
shall become effective immediately upon issuance, and shall be
published in the Federal Register as soon as practicable thereafter.
When these provisions are in effect for aliens who enter without
inspection, the burden of proof rests with the alien to affirmatively
show that he or she has the required continuous physical presence in
the United States. Any absence from the United States shall serve to
break the period of continuous physical presence. An alien who was not
inspected and admitted or paroled into the United States but who
establishes that he or she has been continuously physically present in
the United States for the 2-year period immediately prior to the date
of determination of inadmissibility shall be detained in accordance
with section 235(b)(2) of the Act for a proceeding under section 240 of
the Act.
(2) Determination of inadmissibility. (i) Record of proceeding. An
alien who is arriving in the United States, or other alien as
designated pursuant to paragraph (b)(1)(ii) of this section, who is
determined to be inadmissible under section 212(a)(6)(C) or 212(a)(7)
of the Act (except an alien for whom documentary requirements are
waived under Sec. 211.1(b)(3) or Sec. 212.1 of this chapter), shall be
ordered removed from the United States in accordance with section
235(b)(1) of the Act. In every case in which the expedited removal
provisions will be applied and before removing an alien from the United
States pursuant to this section, the examining immigration officer
shall create a record of the facts of the case and statements made by
the alien. This shall be accomplished by means of a sworn statement
using Form I-867AB, Record of Sworn Statement in Proceedings under
Section 235(b)(1) of the Act. The examining immigration officer shall
read (or have read) to the alien all information contained on Form I-
867A. Following questioning and recording of the alien's statement
regarding identity, alienage, and inadmissibility, the examining
immigration officer shall record the alien's response to the questions
contained on Form I-867B, and have the alien read (or have read to him
or her) the statement, and the alien shall sign and initial each page
of the statement and each correction. The examining immigration officer
shall advise the alien of the charges against him or her
[[Page 10356]]
on Form I-860, Notice and Order of Expedited Removal, and the alien
shall be given an opportunity to respond to those charges in the sworn
statement. After obtaining supervisory concurrence in accordance with
paragraph (b)(7) of this section, the examining immigration official
shall serve the alien with Form I-860 and the alien shall sign the
reverse of the form acknowledging receipt. Interpretative assistance
shall be used if necessary to communicate with the alien.
(ii) No entitlement to hearings and appeals. Except as otherwise
provided in this section, such alien is not entitled to a hearing
before an immigration judge in proceedings conducted pursuant to
section 240 of the Act, or to an appeal of the expedited removal order
to the Board of Immigration Appeals.
(iii) Detention and parole of alien in expedited removal. An alien
whose inadmissibility is being considered under this section or who has
been ordered removed pursuant to this section shall be detained pending
determination and removal, except that parole of such alien, in
accordance with section 212(d)(5) of the Act, may be permitted only
when the Attorney General determines, in the exercise of discretion,
that parole is required to meet a medical emergency or is necessary for
a legitimate law enforcement objective.
(3) Additional charges of inadmissibility. In the expedited removal
process, the Service may not charge an alien with any additional
grounds of inadmissibility other than section 212(a)(6)(C) or 212(a)(7)
of the Act. If an alien appears to be inadmissible under other grounds
contained in section 212(a) of the Act, and if the Service wishes to
pursue such additional grounds of inadmissibility, the alien shall be
detained and referred for a removal hearing before an immigration judge
pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all
charges. Once the alien is in removal proceedings under section 240 of
the Act, the Service is not precluded from lodging additional charges
against the alien. Nothing in this paragraph shall preclude the Service
from pursuing such additional grounds of inadmissibility against the
alien in any subsequent attempt to reenter the United States, provided
the additional grounds of inadmissibility still exist.
(4) Claim of asylum or fear of persecution. If an alien subject to
the expedited removal provisions indicates an intention to apply for
asylum, a fear of persecution, or a fear of return to his or her
country, the inspecting officer shall not proceed further with removal
of the alien until the alien has been referred for an interview by an
asylum officer in accordance with Sec. 208.30 of this chapter to
determine if the alien has a credible fear of persecution. The
examining immigration officer shall record sufficient information in
the sworn statement to establish and record that the alien has
indicated such intention, fear, or concern, and to establish the
alien's inadmissibility.
(i) Referral. The referring officer shall provide the alien with a
written disclosure on Form M-444, Information About Credible Fear
Interview, describing:
(A) The purpose of the referral and description of the credible
fear interview process;
(B) The right to consult with other persons prior to the interview
and any review thereof at no expense to the United States Government;
(C) The right to request a review by an immigration judge of the
asylum officer's credible fear determination; and
(D) The consequences of failure to establish a credible fear of
persecution.
(ii) Detention pending credible fear interview. Pending the
credible fear determination by an asylum officer and any review of that
determination by an immigration judge, the alien shall be detained.
Parole of such alien in accordance with section 212(d)(5) of the Act
may be permitted only when the Attorney General determines, in the
exercise of discretion, that parole is required to meet a medical
emergency or is necessary for a legitimate law enforcement objective.
Prior to the interview, the alien shall be given time to contact and
consult with any person or persons of his or her choosing. Such
consultation shall be made available in accordance with the policies
and procedures of the detention facility where the alien is detained,
shall be at no expense to the government, and shall not unreasonably
delay the process.
(5) Claim to lawful permanent resident, refugee, or asylee status
or U.S. citizenship.--(i) Verification of status. If an applicant for
admission who is subject to expedited removal pursuant to section
235(b)(1) of the Act claims to have been lawfully admitted for
permanent residence, admitted as a refugee under section 207 of the
Act, granted asylum under section 208 of the Act, or claims to be a
U.S. citizen, the immigration officer shall attempt to verify the
alien's claim. Such verification shall include a check of all available
Service data systems and any other means available to the officer. An
alien whose claim to lawful permanent resident, refugee, asylee status,
or U.S. citizen status cannot be verified will be advised of the
penalties for perjury, and will be placed under oath or allowed to make
a declaration as permitted under 28 U.S.C. 1746, concerning his or her
lawful admission for permanent residence, admission as a refugee under
section 207 of the Act, grant of asylum status under section 208 of the
Act, or claim to U.S. citizenship. A written statement shall be taken
from the alien in the alien's own language and handwriting, stating
that he or she declares, certifies, verifies, or states that the claim
is true and correct. The immigration officer shall issue an expedited
order of removal under section 235(b)(1)(A)(i) of the Act and refer the
alien to the immigration judge for review of the order in accordance
with paragraph (b)(5)(iv) of this section and Sec. 235.6(a)(2)(ii). The
person shall be detained pending review of the expedited removal order
under this section. Parole of such person, in accordance with section
212(d)(5) of the Act, may be permitted only when the Attorney General
determines, in the exercise of discretion, that parole is required to
meet a medical emergency or is necessary for a legitimate law
enforcement objective.
(ii) Verified lawful permanent residents. If the claim to lawful
permanent resident status is verified, and such status has not been
terminated in exclusion, deportation, or removal proceedings, the
examining immigration officer shall not order the alien removed
pursuant to section 235(b)(1) of the Act. The examining immigration
officer will determine in accordance with section 101(a)(13)(C) of the
Act whether the alien is considered to be making an application for
admission. If the alien is determined to be seeking admission and the
alien is otherwise admissible, except that he or she is not in
possession of the required documentation, a discretionary waiver of
documentary requirements may be considered in accordance with section
211(b) of the Act and Sec. 211.1(b)(3) of this chapter or the alien's
inspection may be deferred to an onward office for presentation of the
required documents. If the alien appears to be inadmissible, the
immigration officer may initiate removal proceedings against the alien
under section 240 of the Act.
(iii) Verified refugees and asylees. If a check of Service records
or other means indicates that the alien has been granted refugee status
or asylee status, and such status has not been terminated in
deportation, exclusion, or removal proceedings, the immigration officer
shall not order the alien removed pursuant to section 235(b)(1) of the
Act.
[[Page 10357]]
If the alien is not in possession of a valid, unexpired refugee travel
document, the examining immigration officer may accept an application
for a refugee travel document in accordance with Sec. 223.2(b)(2)(ii)
of this chapter. If accepted, the immigration officer shall readmit the
refugee or asylee in accordance with Sec. 223.3(d)(2)(i) of this
chapter. If the alien is determined not to be eligible to file an
application for a refugee travel document the immigration officer may
initiate removal proceedings against the alien under section 240 of the
Act.
(iv) Review of order for claimed lawful permanent residents,
refugees, asylees, or U.S. citizens. A person whose claim to U.S.
citizenship has been verified may not be ordered removed. When an alien
whose status has not been verified but who is claiming under oath or
under penalty of perjury to be a lawful permanent resident, refugee,
asylee, or U.S. citizen is ordered removed pursuant to section
235(b)(1) of the Act, the case will be referred to an immigration judge
for review of the expedited removal order under section 235(b)(1)(C) of
the Act and Sec. 235.6(a)(2)(ii). If the immigration judge determines
that the alien has never been admitted as a lawful permanent resident
or as a refugee, granted asylum status, or is not a U.S. citizen, the
order issued by the immigration officer will be affirmed and the
Service will remove the alien. There is no appeal from the decision of
the immigration judge. If the immigration judge determines that the
alien was once so admitted as a lawful permanent resident or as a
refugee, or was granted asylum status, or is a U.S. citizen, and such
status has not been terminated by final administrative action, the
immigration judge will terminate proceedings and vacate the expedited
removal order. The Service may initiate removal proceedings against
such an alien, but not against a person determined to be a U.S.
citizen, in proceedings under section 240 of the Act. During removal
proceedings, the immigration judge may consider any waivers,
exceptions, or requests for relief for which the alien is eligible.
(6) Opportunity for alien to establish that he or she was admitted
or paroled into the United States. If the Commissioner determines that
the expedited removal provisions of section 235(b)(1) of the Act shall
apply to any or all aliens described in paragraph (b)(2)(ii) of this
section, such alien will be given a reasonable opportunity to establish
to the satisfaction of the examining immigration officer that he or she
was admitted or paroled into the United States following inspection at
a port-of-entry. The alien will be allowed to present evidence or
provide sufficient information to support the claim. Such evidence may
consist of documentation in the possession of the alien, the Service,
or a third party. The examining immigration officer will consider all
such evidence and information, make further inquiry if necessary, and
will attempt to verify the alien's status through a check of all
available Service data systems. The burden rests with the alien to
satisfy the examining immigration officer of the claim of lawful
admission or parole. If the alien establishes that he or she was
lawfully admitted or paroled, the case will be examined to determine if
grounds of deportability under section 237(a) of the Act are
applicable, or if paroled, whether such parole has been, or should be,
terminated, and whether the alien is inadmissible under section 212(a)
of the Act. An alien who cannot satisfy the examining officer that he
or she was lawfully admitted or paroled will be ordered removed
pursuant to section 235(b)(1) of the Act.
(7) Review of expedited removal orders. Any removal order entered
by an examining immigration officer pursuant to section 235(b)(1) of
the Act must be reviewed and approved by the appropriate supervisor
before the order is considered final. Such supervisory review shall not
be delegated below the level of the second line supervisor, or a person
acting in that capacity. The supervisory review shall include a review
of the sworn statement and any answers and statements made by the alien
regarding a fear of removal or return. The supervisory review and
approval of an expedited removal order for an alien described in
section 235(b)(1)(A)(iii) of the Act must include a review of any claim
of lawful admission or parole and any evidence or information presented
to support such a claim, prior to approval of the order. In such cases,
the supervisor may request additional information from any source and
may require further interview of the alien.
(8) Removal procedures relating to expedited removal. An alien
ordered removed pursuant to section 235(b)(1) of the Act shall be
removed from the United States in accordance with section 241(c) of the
Act and 8 CFR part 241.
(9) Waivers of documentary requirements. Nothing in this section
limits the discretionary authority of the Attorney General, including
authority under sections 211(b) or 212(d) of the Act, to waive the
documentary requirements for arriving aliens.
(10) Applicant for admission under section 217 of the Act. The
provisions of Sec. 235.3(b) do not apply to an applicant for admission
under section 217 of the Act.
(c) Arriving aliens placed in proceedings under section 240 of the
Act. Except as otherwise provided in this chapter, any arriving alien
who appears to the inspecting officer to be inadmissible, and who is
placed in removal proceedings pursuant to section 240 of the Act shall
be detained in accordance with section 235(b) of the Act. Parole of
such alien shall only be considered in accordance with Sec. 212.5(a) of
this chapter. This paragraph shall also apply to any alien who arrived
before April 1, 1997, and who was placed in exclusion proceedings.
(d) Service custody. The Service will assume custody of any alien
subject to detention under paragraph (b) or (c) of this section. In its
discretion, the Service may require any alien who appears inadmissible
and who arrives at a land border port-of-entry from Canada or Mexico,
to remain in that country while awaiting a removal hearing. Such alien
shall be considered detained for a proceeding within the meaning of
section 235(b) of the Act and may be ordered removed in absentia by an
immigration judge if the alien fails to appear for the hearing.
(e) Detention in non-Service facility. Whenever an alien is taken
into Service custody and detained at a facility other than at a Service
Processing Center, the public or private entities contracted to perform
such service shall have been approved for such use by the Service's
Jail Inspection Program or shall be performing such service under
contract in compliance with the Standard Statement of Work for Contract
Detention Facilities. Both programs are administered by the Detention
and Deportation section having jurisdiction over the alien's place of
detention. Under no circumstances shall an alien be detained in
facilities not meeting the four mandatory criteria for usage. These
are:
(1) 24-Hour supervision,
(2) Conformance with safety and emergency codes,
(3) Food service, and
(4) Availability of emergency medical care.
(f) Privilege of communication. The mandatory notification
requirements of consular and diplomatic officers pursuant to
Sec. 236.1(e) of this chapter apply when an inadmissible alien is
detained for removal proceedings, including for purpose of conducting
the credible fear determination.
[[Page 10358]]
89. Section 235.4 is revised to read as follows:
Sec. 235.4 Withdrawal of application for admission.
(a) The Attorney General may, in his or her discretion, permit any
alien applicant for admission to withdraw his or her application for
admission in lieu of removal proceedings under section 240 of the Act
or expedited removal under section 235(b)(1) of the Act. The alien's
decision to withdraw his or her application for admission must be made
voluntarily, but nothing in this section shall be construed as to give
an alien the right to withdraw his or her application for admission.
Permission to withdraw an application for admission should not normally
be granted unless the alien intends and is able to depart the United
States immediately. An alien permitted to withdraw his or her
application for admission shall normally remain in carrier or Service
custody pending departure, unless the district director determines that
parole of the alien is warranted in accordance with Sec. 212.5(a) of
this chapter.
(b) An immigration judge may allow only an arriving alien to
withdraw an application for admission. Once the issue of
inadmissibility has been resolved, permission to withdraw an
application for admission should ordinarily be granted only with the
concurrence of the Service. An immigration judge shall not allow an
alien to withdraw an application for admission unless the alien, in
addition to demonstrating that he or she possesses both the intent and
the means to depart immediately from the United States, establishes
that factors directly relating to the issue of inadmissibility indicate
that the granting of the withdrawal would be in the interest of
justice. During the pendency of an appeal from the order of removal,
permission to withdraw an application for admission must be obtained
from the immigration judge or the Board.
90. Section 235.5 is revised to read as follows:
Sec. 235.5 Preinspection.
(a) In United States territories and possessions. In the case of
any aircraft proceeding from Guam, Puerto Rico, or the United States
Virgin Islands destined directly and without touching at a foreign port
or place, to any other of such places, or to one of the States of the
United States or the District of Columbia, the examination of the
passengers and crew required by the Act may be made prior to the
departure of the aircraft, and in such event, final determination of
admissibility shall be made immediately prior to such departure. The
examination shall be conducted in accordance with sections 232, 235,
and 240 of the Act and 8 CFR parts 235 and 240. If it appears to the
examining immigration officer that any person in the United States
being examined under this section is prima facie removable from the
United States, further action with respect to his or her examination
shall be deferred and further proceedings regarding removability
conducted as provided in section 240 of the Act and 8 CFR part 240.
When the foregoing inspection procedure is applied to any aircraft,
persons examined and found admissible shall be placed aboard the
aircraft, or kept at the airport separate and apart from the general
public until they are permitted to board the aircraft. No other person
shall be permitted to depart on such aircraft until and unless he or
she is found to be admissible as provided in this section.
(b) In foreign territory. In the case of any aircraft, vessel, or
train proceeding directly, without stopping, from a port or place in
foreign territory to a port-of-entry in the United States, the
examination and inspection of passengers and crew required by the Act
and final determination of admissibility may be made immediately prior
to such departure at the port or place in the foreign territory and
shall have the same effect under the Act as though made at the destined
port-of-entry in the United States.
91. Section 235.6 is revised to read as follows:
Sec. 235.6 Referral to immigration judge.
(a) Notice. (1) Referral by Form I-862, Notice to Appear. An
immigration officer or asylum officer will sign and deliver a Form I-
862 to an alien in the following cases:
(i) If, in accordance with the provisions of section 235(b)(2)(A)
of the Act, the examining immigration officer detains an alien for a
proceeding before an immigration judge under section 240 of the Act; or
(ii) If, in accordance with section 235(b)(1)(B)(ii) of the Act, an
asylum officer determines that an alien in expedited removal
proceedings has a credible fear of persecution and refers the case to
the immigration judge for consideration of the application for asylum.
(iii) If, in accordance with section 235(b)(1)(B)(iii)(III) of the
Act, the immigration judge determines that an alien in expedited
removal proceedings has a credible fear of persecution and vacates the
expedited removal order issued by the asylum officer pursuant to
section 235(b)(1)(B)(iii) of the Act.
(iv) If an immigration officer verifies that an alien subject to
expedited removal under section 235(b)(1) of the Act has been admitted
as a lawful permanent resident refugee, or asylee, or upon review
pursuant to Sec. 235.3(b)(5)(iv) an immigration judge determines that
the alien was once so admitted, provided that such status has not been
terminated by final administrative action, and the Service initiates
removal proceedings against the alien under section 240 of the Act.
(2) Referral by Form I-863, Notice of Referral to Immigration
Judge. An immigration officer will sign and deliver a Form I-863 to an
alien in the following cases:
(i) If, in accordance with section 235(b)(1)(B)(iii)(III) of the
Act, an asylum officer determines that an alien does not have a
credible fear of persecution, and the alien requests a review of that
determination by an immigration judge; or
(ii) If, in accordance with section 235(b)(1)(C) of the Act, an
immigration officer refers an expedited removal order entered on an
alien claiming to be a lawful permanent resident, refugee, asylee, or
U.S. citizen for whom the officer could not verify such status to an
immigration judge for review of the order.
(iii) If an immigration officer refers an applicant described in
Sec. 208.2(b)(1) of this chapter to an immigration judge for an asylum
hearing under Sec. 208.2(b)(2) of this chapter.
(b) Certification for mental condition; medical appeal. An alien
certified under sections 212(a)(1) and 232(b) of the Act shall be
advised by the examining immigration officer that he or she may appeal
to a board of medical examiners of the United States Public Health
Service pursuant to section 232 of the Act. If such appeal is taken,
the district director shall arrange for the convening of the medical
board.
Sec. 235.7 [Removed]
92. Section 235.7 is removed.
Sec. 235.13 [Redesignated as Sec. 235.7]
93. Section 235.13 is redesignated as Sec. 235.7.
94. Section 235.8 is revised to read as follows:
Sec. 235.8 Inadmissibility on security and related grounds.
(a) Report. When an immigration officer or an immigration judge
suspects that an arriving alien appears to be inadmissible under
section 212(a)(3)(A) (other than clause (ii)), (B), or (C) of the
[[Page 10359]]
Act, the immigration officer or immigration judge shall order the alien
removed and report the action promptly to the district director who has
administrative jurisdiction over the place where the alien has arrived
or where the hearing is being held. The immigration officer shall, if
possible, take a brief sworn question-and-answer statement from the
alien, and the alien shall be notified by personal service of Form I-
147, Notice of Temporary Inadmissibility, of the action taken and the
right to submit a written statement and additional information for
consideration by the Attorney General. The district director shall
forward the report to the regional director for further action as
provided in paragraph (b) of this section.
(b) Action by regional director. (1) In accordance with section
235(c)(2)(B) of the Act, the regional director may deny any further
inquiry or hearing by an immigration judge and order the alien removed
by personal service of Form I-148, Notice of Permanent Inadmissibility,
or issue any other order disposing of the case that the regional
director considers appropriate.
(2) If the regional director concludes that the case does not meet
the criteria contained in section 235(c)(2)(B) of the Act, the regional
director may direct that:
(i) An immigration officer shall conduct a further examination of
the alien, concerning the alien's admissibility; or,
(ii) The alien's case be referred to an immigration judge for a
hearing, or for the continuation of any prior hearing.
(3) The regional director's decision shall be in writing and shall
be signed by the regional director. Unless the written decision
contains confidential information, the disclosure of which would be
prejudicial to the public interest, safety, or security of the United
States, the written decision shall be served on the alien. If the
written decision contains such confidential information, the alien
shall be served with a separate written order showing the disposition
of the case, but with the confidential information deleted.
(c) Finality of decision. The regional director's decision under
this section is final when it is served upon the alien in accordance
with paragraph (b)(3) of this section. There is no administrative
appeal from the regional director's decision.
(d) Hearing by immigration judge. If the regional director directs
that an alien subject to removal under this section be given a hearing
or further hearing before an immigration judge, the hearing and all
further proceedings in the matter shall be conducted in accordance with
the provisions of section 240 of the Act and other applicable sections
of the Act to the same extent as though the alien had been referred to
an immigration judge by the examining immigration officer. In a case
where the immigration judge ordered the alien removed pursuant to
paragraph (a) of this section, the Service shall refer the case back to
the immigration judge and proceedings shall be automatically reopened
upon receipt of the notice of referral. If confidential information,
not previously considered in the matter, is presented supporting the
inadmissibility of the alien under section 212(a)(3)(A) (other than
clause (ii)), (B) or (C) of the Act, the disclosure of which, in the
discretion of the immigration judge, may be prejudicial to the public
interest, safety, or security, the immigration judge may again order
the alien removed under the authority of section 235(c) of the Act and
further action shall be taken as provided in this section.
(e) Nonapplicability. The provisions of this section shall apply
only to arriving aliens, as defined in Sec. 1.1(q) of this chapter.
Aliens present in the United States who have not been admitted or
paroled may be subject to proceedings under Title V of the Act.
Sec. 235.9 [Removed]
95. Section 235.9 is removed.
Sec. 235.12 [Redesignated as Sec. 235.9 and revised]
96. Section 235.12 is redesignated as Sec. 235.9 and is revised to
read as follows:
Sec. 235.9 Northern Marianas identification card.
During the two-year period that ended July 1, 1990, the Service
issued Northern Marianas Identification Cards to aliens who acquired
United States citizenship when the Covenant to Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States entered into force on November 3, 1986. These cards remain valid
as evidence of United States citizenship. Although the Service no
longer issues these cards, a United States citizen to whom a card was
issued may file Form I-777, Application for Issuance or Replacement of
Northern Marianas Card, to obtain replacement of a lost, stolen, or
mutilated Northern Marianas Identification Card.
97. Section 235.10 is revised to read as follows:
Sec. 235.10 U.S. Citizen Identification Card.
(a) General. Form I-197, U.S. Citizen Identification Card, is no
longer issued by the Service but valid existing cards will continue to
be acceptable documentation of U.S. citizenship. Possession of the
identification card is not mandatory for any purpose. A U.S. Citizen
Identification Card remains the property of the United States. Because
the identification card is no longer issued, there are no provisions
for replacement cards.
(b) Surrender and voidance. (1) Institution of proceeding under
section 240 or 342 of the Act. A U.S. Citizen Identification Card must
be surrendered provisionally to a Service office upon notification by
the district director that a proceeding under section 240 or 342 of the
Act is being instituted against the person to whom the card was issued.
The card shall be returned to the person if the final order in the
proceeding does not result in voiding the card under this paragraph. A
U.S. Citizen Identification Card is automatically void if the person to
whom it was issued is determined to be an alien in a proceeding
conducted under section 240 of the Act, or if a certificate, document,
or record relating to that person is canceled under section 342 of the
Act.
(2) Investigation of validity of identification card. A U.S.
Citizen Identification Card must be surrendered provisionally upon
notification by a district director that the validity of the card is
being investigated. The card shall be returned to the person who
surrendered it if the investigation does not result in a determination
adverse to his or her claim to be a United States citizen. When an
investigation results in a tentative determination adverse to the
applicant's claim to be a United States citizen, the applicant shall be
notified by certified mail directed to his or her last known address.
The notification shall inform the applicant of the basis for the
determination and of the intention of the district director to declare
the card void unless within 30 days the applicant objects and demands
an opportunity to see and rebut the adverse evidence. Any rebuttal,
explanation, or evidence presented by the applicant must be included in
the record of proceeding. The determination whether the applicant is a
United States citizen must be based on the entire record and the
applicant shall be notified of the determination. If it is determined
that the applicant is not a United States citizen, the applicant shall
be notified of the reasons, and the card deemed void. There is no
appeal from the district director's decision.
(3) Admission of alienage. A U.S. Citizen Identification Card is
void if the person to whom it was issued admits in a statement signed
before an
[[Page 10360]]
immigration officer that he or she is an alien and consents to the
voidance of the card. Upon signing the statement the card must be
surrendered to the immigration officer.
(4) Surrender of void card. A void U.S. Citizen Identification Card
which has not been returned to the Service must be surrendered without
delay to an immigration officer or to the issuing office of the
Service.
(c) U.S. Citizen Identification Card previously issued on Form I-
179. A valid Form I-179, U.S. Citizen Identification Card, continues to
be valid subject to the provisions of this section.
98. Section 235.11 is revised to read as follows:
Sec. 235.11 Admission of conditional permanent residents.
(a) General. (1) Conditional residence based on family
relationship. An alien seeking admission to the United States with an
immigrant visa as the spouse or son or daughter of a United States
citizen or lawful permanent resident shall be examined to determine
whether the conditions of section 216 of the Act apply. If so, the
alien shall be admitted conditionally for a period of 2 years. At the
time of admission, the alien shall be notified that the alien and his
or her petitioning spouse must file a Form I-751, Petition to Remove
the Conditions on Residence, within the 90-day period immediately
preceding the second anniversary of the alien's admission for permanent
residence.
(2) Conditional residence based on entrepreneurship. An alien
seeking admission to the United States with an immigrant visa as an
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the
spouse or unmarried minor child of an alien entrepreneur shall be
admitted conditionally for a period of 2 years. At the time of
admission, the alien shall be notified that the principal alien
(entrepreneur) must file a Form I-829, Petition by Entrepreneur to
Remove Conditions, within the 90-day period immediately preceding the
second anniversary of the alien's admission for permanent residence.
(b) Correction of endorsement on immigrant visa. If the alien is
subject to the provisions of section 216 of the Act, but the
classification endorsed on the immigrant visa does not so indicate, the
endorsement shall be corrected and the alien shall be admitted as a
lawful permanent resident on a conditional basis, if otherwise
admissible. Conversely, if the alien is not subject to the provisions
of section 216 of the Act, but the visa classification endorsed on the
immigrant visa indicates that the alien is subject thereto (e.g., if
the second anniversary of the marriage upon which the immigrant visa is
based occurred after the issuance of the visa and prior to the alien's
application for admission) the endorsement on the visa shall be
corrected and the alien shall be admitted as a lawful permanent
resident without conditions, if otherwise admissible.
(c) Expired conditional permanent resident status. The lawful
permanent resident alien status of a conditional resident automatically
terminates if the conditional basis of such status is not removed by
the Service through approval of a Form I-751, Petition to Remove the
Conditions on Residence or, in the case of an alien entrepreneur (as
defined in section 216A(f)(1) of the Act), Form I-829, Petition by
Entrepreneur to Remove Conditions. Therefore, an alien who is seeking
admission as a returning resident subsequent to the second anniversary
of the date on which conditional residence was obtained (except as
provided in Sec. 211.1(b)(1) of this chapter) and whose conditional
basis of such residence has not been removed pursuant to section 216(c)
or 216A(c) of the Act, whichever is applicable, shall be placed under
removal proceedings. However, in a case where conditional residence was
based on a marriage, removal proceedings may be terminated and the
alien may be admitted as a returning resident if the required Form I-
751 is filed jointly, or by the alien alone (if appropriate), and
approved by the Service. In the case of an alien entrepreneur, removal
proceedings may be terminated and the alien admitted as a returning
resident if the required Form I-829 is filed by the alien entrepreneur
and approved by the Service.
99. Part 236 is revised to read as follows:
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
Subpart A--Detention of Aliens Prior to Order of Removal
Sec.
236.1 Apprehension, custody, and detention.
236.2 Confined aliens, incompetents, and minors.
236.3 Detention and release of juveniles.
236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
236.5 Fingerprints and photographs.
236.6-236.9 Reserved.
Subpart B--Family Unity Program
236.10 Description of program.
236.11 Definitions.
236.12 Eligibility.
236.13 Ineligible aliens.
236.14 Filing.
236.15 Voluntary departure and eligibility for employment.
236.16 Travel outside the United States.
236.17 Eligibility for Federal financial assistance programs.
236.18 Termination of Family Unity Program benefits.
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8
CFR part 2.
Subpart A--Detention of Aliens Prior to Order of Removal
Sec. 236.1 Apprehension, custody, and detention.
(a) Detainers. The issuance of a detainer under this section shall
be governed by the provisions of Sec. 287.7 of this chapter.
(b) Warrant of arrest. (1) In general. At the time of issuance of
the notice to appear, or at any time thereafter and up to the time
removal proceedings are completed, the respondent may be arrested and
taken into custody under the authority of Form I-200, Warrant of
Arrest. A warrant of arrest may be issued only by those immigration
officers listed in Sec. 287.5(e)(2) of this chapter and may be served
only by those immigration officers listed in Sec. 287.5(e)(3) of this
chapter.
(2) If, after the issuance of a warrant of arrest, a determination
is made not to serve it, any officer authorized to issue such warrant
may authorize its cancellation.
(c) Custody issues and release procedures. (1) After the expiration
of the Transition Period Custody Rules under Public Law 104-208, no
alien described in section 236(c)(1) of the Act shall be released from
custody during removal proceedings except pursuant to section 236(c)(2)
of the Act.
(2) Any officer authorized to issue a warrant of arrest may, in the
officer's discretion, release an alien not described in section
236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3)
of the Act; provided that the alien must demonstrate to the
satisfaction of the officer that such release would not pose a danger
to property or persons, and that the alien is likely to appear for any
future proceeding.
(3) When an alien who, having been arrested and taken into custody,
has been released, such release may be revoked at any time in the
discretion of the district director, acting district director, deputy
district director, assistant district director for investigations,
assistant district director for detention and deportation, or officer
in charge (except foreign), in which event the alien may be taken into
physical custody and detained. If
[[Page 10361]]
detained, unless a breach has occurred, any outstanding bond shall be
revoked and canceled.
(4) The provisions of Sec. 103.6 of this chapter shall apply to any
bonds authorized. Subject to the provisions of this section, the
provisions of Sec. 3.19 of this chapter shall govern availability to
the respondent of recourse to other administrative authority for
release from custody.
(5) An immigration judge may not exercise authority provided in
this section and the review process described in paragraph (d) of this
section shall not apply with respect to:
(i) Arriving aliens, as described in Sec. 1.1(q) of this chapter,
including aliens paroled pursuant to section 212(d)(5) of the Act, in
removal proceedings,
(ii) Aliens described in section 237(a)(4) of the Act, or
(iii) After the expiration of section 303(b)(3) of Public Law 104-
208, aliens described in section 236(c)(1) of the Act.
(d) Appeals from custody decisions. (1) Application to immigration
judge. After an initial custody determination by the district director,
including the setting of a bond, the respondent may, at any time before
an order under 8 CFR part 240 becomes final, request amelioration of
the conditions under which he or she may be released. Prior to such
final order, and except as otherwise provided in this chapter, the
immigration judge is authorized to exercise the authority in section
236 of the Act to detain the alien in custody, release the alien, and
determine the amount of bond, if any, under which the respondent may be
released, as provided in Sec. 3.19 of this chapter. If the alien has
been released from custody, an application for amelioration of the
terms of release must be filed within 7 days of release. Once a removal
order becomes administratively final, determinations regarding custody
and bond are made by the district director.
(2) Application to the district director. (i) After expiration of
the 7-day period in paragraph (d)(1) of this section, the respondent
may request review by the district director of the conditions of his or
her release.
(ii) After an order becomes administratively final, the respondent
may request review by the district director of the conditions of his or
her release.
(3) Appeal to the Board of Immigration Appeals. An appeal relating
to bond and custody determinations may be filed to the Board of
Immigration Appeals in the following circumstances:
(i) In accordance with Sec. 3.38 of this chapter, the alien or the
Service may appeal the decision of an immigration judge pursuant to
paragraph (d)(1) of this section.
(ii) The alien, within 10 days, may appeal from the district
director's decision under paragraph (d)(2)(i) of this section.
(iii) The alien, within 10 days, may appeal from the district
director's decision under paragraph (d)(2)(ii) of this section, except
that no appeal shall be allowed when the Service notifies the alien
that it is ready to execute an order of removal and takes the alien
into custody for that purpose.
(4) Effect of filing an appeal. The filing of an appeal from a
determination of an immigration judge or district director under this
paragraph shall not operate to delay compliance with the order, nor
stay the administrative proceedings or removal.
(e) Privilege of communication. Every detained alien shall be
notified that he or she may communicate with the consular or diplomatic
officers of the country of his or her nationality in the United States.
Existing treaties with the following countries require immediate
communication with appropriate consular or diplomatic officers whenever
nationals of the following countries are detained in removal
proceedings, whether or not requested by the alien and even if the
alien requests that no communication be undertaken in his or her
behalf. When notifying consular or diplomatic officials, Service
officers shall not reveal the fact that any detained alien has applied
for asylum or withholding of removal.
Albania 1
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\1\ Arrangements with these countries provide that U.S.
authorities shall notify responsible representatives within 72 hours
of the arrest or detention of one of their nationals.
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Antigua
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) 2
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\2\ When Taiwan nationals (who carry ``Republic of China''
passports) are detained, notification should be made to the nearest
office of the Taiwan Economic and Cultural Representative's Office,
the unofficial entity representing Taiwan's interests in the United
States.
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Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland
Romania
Russian Federation
St. Kitts/Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
South Korea
Tajikistan
Tanzania
Tonga
Trinidad/Tobago
Turkmenistan
Tuvalu
Ukraine
United Kingdom 3
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\3\ British dependencies are also covered by this agreement.
They are: Anguilla, British Virgin Islands, Hong Kong, Bermuda,
Montserrat, and the Turks and Caicos Islands. Their residents carry
British passports.
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U.S.S.R. 4
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\4\ All U.S.S.R. successor states are covered by this agreement.
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan.
---------------------------------------------------------------------------
Uzbekistan
Zambia
(f) Notification to Executive Office for Immigration Review of
change in custody status. The Service shall notify the Immigration
Court having administrative control over the Record of Proceeding of
any change in custody location or of release from, or subsequent taking
into, Service custody of a respondent/applicant pursuant to
Sec. 3.19(g) of this chapter.
Sec. 236.2 Confined aliens, incompetents, and minors.
(a) Service. If the respondent is confined, or if he or she is an
incompetent, or a minor under the age of 14, the notice to appear, and
the warrant of arrest, if issued, shall be served in the manner
prescribed in Sec. 239.1 of this chapter upon the person or persons
specified by Sec. 103.5a(c) of this chapter.
(b) Service custody and cost of maintenance. An alien confined
because of physical or mental disability in an institution or hospital
shall not be
[[Page 10362]]
accepted into physical custody by the Service until an order of removal
has been entered and the Service is ready to remove the alien. When
such an alien is an inmate of a public or private institution at the
time of the commencement of the removal proceedings, expenses for the
maintenance of the alien shall not be incurred by the Government until
he or she is taken into physical custody by the Service.
Sec. 236.3 Detention and release of juveniles.
(a) Juveniles. A juvenile is defined as an alien under the age of
18 years.
(b) Release. Juveniles for whom bond has been posted, for whom
parole has been authorized, or who have been ordered released on
recognizance, shall be released pursuant to the following guidelines:
(1) Juveniles shall be released, in order of preference, to:
(i) A parent;
(ii) Legal guardian; or
(iii) An adult relative (brother, sister, aunt, uncle, grandparent)
who is not presently in Service detention, unless a determination is
made that the detention of such juvenile is required to secure his or
her timely appearance before the Service or the Immigration Court or to
ensure the juvenile's safety or that of others. In cases where the
parent, legal guardian, or adult relative resides at a location distant
from where the juvenile is detained, he or she may secure release at a
Service office located near the parent, legal guardian, or adult
relative.
(2) If an individual specified in paragraphs (b)(1)(i) through
(iii) of this section cannot be located to accept custody of a
juvenile, and the juvenile has identified a parent, legal guardian, or
adult relative in Service detention, simultaneous release of the
juvenile and the parent, legal guardian, or adult relative shall be
evaluated on a discretionary case-by-case basis.
(3) In cases where the parent or legal guardian is in Service
detention or outside the United States, the juvenile may be released to
such person as is designated by the parent or legal guardian in a sworn
affidavit, executed before an immigration officer or consular officer,
as capable and willing to care for the juvenile's well-being. Such
person must execute an agreement to care for the juvenile and to ensure
the juvenile's presence at all future proceedings before the Service or
an immigration judge.
(4) In unusual and compelling circumstances and in the discretion
of the district director or chief patrol agent, a juvenile may be
released to an adult, other than those identified in paragraphs
(b)(1)(i) through (iii) of this section, who executes an agreement to
care for the juvenile's well-being and to ensure the juvenile's
presence at all future proceedings before the Service or an immigration
judge.
(c) Juvenile coordinator. The case of a juvenile for whom detention
is determined to be necessary should be referred to the ``Juvenile
Coordinator,'' whose responsibilities should include, but not be
limited to, finding suitable placement of the juvenile in a facility
designated for the occupancy of juveniles. These may include juvenile
facilities contracted by the Service, state or local juvenile
facilities, or other appropriate agencies authorized to accommodate
juveniles by the laws of the state or locality.
(d) Detention. In the case of a juvenile for whom detention is
determined to be necessary, for such interim period of time as is
required to locate suitable placement for the juvenile, whether such
placement is under paragraph (b) or (c) of this section, the juvenile
may be temporarily held by Service authorities or placed in any Service
detention facility having separate accommodations for juveniles.
(e) Refusal of release. If a parent of a juvenile detained by the
Service can be located, and is otherwise suitable to receive custody of
the juvenile, and the juvenile indicates a refusal to be released to
his or her parent, the parent(s) shall be notified of the juvenile's
refusal to be released to the parent(s), and shall be afforded an
opportunity to present their views to the district director, chief
patrol agent, or immigration judge before a custody determination is
made.
(f) Notice to parent of application for relief. If a juvenile seeks
release from detention, voluntary departure, parole, or any form of
relief from removal, where it appears that the grant of such relief may
effectively terminate some interest inherent in the parent-child
relationship and/or the juvenile's rights and interests are adverse
with those of the parent, and the parent is presently residing in the
United States, the parent shall be given notice of the juvenile's
application for relief, and shall be afforded an opportunity to present
his or her views and assert his or her interest to the district
director or immigration judge before a determination is made as to the
merits of the request for relief.
(g) Voluntary departure. Each juvenile, apprehended in the
immediate vicinity of the border, who resides permanently in Mexico or
Canada, shall be informed, prior to presentation of the voluntary
departure form or being allowed to withdraw his or her application for
admission, that he or she may make a telephone call to a parent, close
relative, a friend, or to an organization found on the free legal
services list. A juvenile who does not reside in Mexico or Canada who
is apprehended shall be provided access to a telephone and must in fact
communicate either with a parent, adult relative, friend, or with an
organization found on the free legal services list prior to
presentation of the voluntary departure form. If such juvenile, of his
or her own volition, asks to contact a consular officer, and does in
fact make such contact, the requirements of this section are satisfied.
(h) Notice and request for disposition. When a juvenile alien is
apprehended, he or she must be given a Form I-770, Notice of Rights and
Disposition. If the juvenile is less than 14 years of age or unable to
understand the notice, the notice shall be read and explained to the
juvenile in a language he or she understands. In the event a juvenile
who has requested a hearing pursuant to the notice subsequently decides
to accept voluntary departure or is allowed to withdraw his or her
application for admission, a new Form I-770 shall be given to, and
signed by the juvenile.
Sec. 236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
(a) Condition of classification. As a condition of classification
and continued stay in classification pursuant to section 101(a)(15)(S)
of the Act, nonimmigrants in S classification must have executed Form
I-854, Part B, Inter-agency Alien Witness and Informant Record,
certifying that they have knowingly waived their right to a removal
hearing and right to contest, other than on the basis of an application
for withholding of deportation or removal, any removal action,
including detention pending deportation or removal, instituted before
lawful permanent resident status is obtained.
(b) Determination of deportability. (1) A determination to remove a
deportable alien classified pursuant to section 101(a)(15)(S) of the
Act shall be made by the district director having jurisdiction over the
place where the alien is located.
(2) A determination to remove such a deportable alien shall be
based on one or more of the grounds of deportability listed in section
237 of the Act based on conduct committed after, or conduct or a
condition not disclosed to the Service prior to, the alien's
classification as an S nonimmigrant under section 101(a)(15)(S) of the
Act, or for a
[[Page 10363]]
violation of, or failure to adhere to, the particular terms and
conditions of status in S nonimmigrant classification.
(c) Removal procedures. (1) A district director who determines to
remove an alien witness or informant in S nonimmigrant classification
shall notify the Commissioner, the Assistant Attorney General, Criminal
Division, and the relevant law enforcement agency in writing to that
effect. The Assistant Attorney General, Criminal Division, shall concur
in or object to that decision. Unless the Assistant Attorney General,
Criminal Division, objects within 7 days, he or she shall be deemed to
have concurred in the decision. In the event of an objection by the
Assistant Attorney General, Criminal Division, the matter will be
expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant law
enforcement agency have a right of appeal from any decision to remove.
(2) A district director who has provided notice as set forth in
paragraph (c)(1) of this section and who has been advised by the
Commissioner that the Assistant Attorney General, Criminal Division,
has not objected shall issue a Warrant of Removal. The alien shall
immediately be arrested and taken into custody by the district director
initiating the removal. An alien classified under the provisions of
section 101(a)(15)(S) of the Act who is determined, pursuant to a
warrant issued by a district director, to be deportable from the United
States shall be removed from the United States to his or her country of
nationality or last residence. The agency that requested the alien's
presence in the United States shall ensure departure from the United
States and so inform the district director in whose jurisdiction the
alien has last resided. The district director, if necessary, shall
oversee the alien's departure from the United States and, in any event,
shall notify the Commissioner of the alien's departure.
(d) Withholding of removal. An alien classified pursuant to section
101(a)(15)(S) of the Act who applies for withholding of removal shall
have 10 days from the date the Warrant of Removal is served upon the
alien to file an application for such relief with the district director
initiating the removal order. The procedures contained in Secs. 208.2
and 208.16 of this chapter shall apply to such an alien who applies for
withholding of removal.
(e) Inadmissibility. An alien who applies for admission under the
provisions of section 101(a)(15)(S) 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 and which
have not been previously waived by the Commissioner will be taken into
custody. The district director having jurisdiction over the port-of-
entry shall follow the notification procedures specified in paragraph
(c)(1) of this section. A district director who has provided such
notice and who has been advised by the Commissioner that the Assistant
Attorney General, Criminal Division, has not objected shall remove the
alien without further hearing. An alien may not contest such removal,
other than by applying for withholding of removal.
Sec. 236.5 Fingerprints and photographs.
Every alien 14 years of age or older against whom proceedings based
on deportability under section 237 of the Act are commenced under this
part by service of a notice to appear shall be fingerprinted and
photographed. Such fingerprints and photographs shall be made available
to Federal, State, and local law enforcement agencies upon request to
the district director or chief patrol agent having jurisdiction over
the alien's record. Any such alien, regardless of his or her age, shall
be photographed and/or fingerprinted if required by any immigration
officer authorized to issue a notice to appear. Every alien 14 years of
age or older who is found to be inadmissible to the United States and
ordered removed by an immigration judge shall be fingerprinted, unless
during the preceding year he or she has been fingerprinted at an
American consular office.
Secs. 236.6--236.9 [Reserved]
Subpart B--Family Unity Program
Sec. 236.10 Description of program.
The family unity program implements the provisions of section 301
of the Immigration Act of 1990, Public Law 101-649. This Act is
referred to in this subpart as ``IMMACT 90''.
Sec. 236.11 Definitions.
In this subpart, the term:
Eligible immigrant means a qualified immigrant who is the spouse or
unmarried child of a legalized alien.
Legalized alien means an alien who:
(1) Is a temporary or permanent resident under section 210 or 245A
of the Act; or
(2) Is a permanent resident under section 202 of the Immigration
Reform and Control Act of 1986 (Cuban/Haitian Adjustment).
Sec. 236.12 Eligibility.
(a) General. An alien who is not a lawful permanent resident is
eligible to apply for benefits under the Family Unity Program if he or
she establishes:
(1) That he or she entered the United States before May 5, 1988 (in
the case of a relationship to a legalized alien described in subsection
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December
1, 1988 (in the case of a relationship to a legalized alien described
in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been
continuously residing in the United States since that date; and
(2) That on May 5, 1988 (in the case of a relationship to a
legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of
section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a
relationship to a legalized alien described in subsection (b)(2)(A) of
section 301 of IMMACT 90), he or she was the spouse or unmarried child
of a legalized alien, and that he or she has been eligible continuously
since that time for family-sponsored second preference immigrant status
under section 203(a)(2) of the Act based on the same relationship.
(b) Legalization application pending as of May 5, 1988 or December
1, 1988. An alien whose legalization application was filed on or before
May 5, 1988 (in the case of a relationship to a legalized alien
described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT
90), or as of December 1, 1988 (in the case of a relationship to a
legalized alien described in subsection (b)(2)(A) of section 301 of
IMMACT 90), but not approved until after that date will be treated as
having been a legalized alien as of May 5, 1988 (in the case of a
relationship to a legalized alien described in subsection (b)(2)(B) or
(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in
the case of a relationship to a legalized alien described in subsection
(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family
Unity Program.
Sec. 236.13 Ineligible aliens.
The following categories of aliens are ineligible for benefits
under the Family Unity Program:
(a) An alien who is deportable under any paragraph in section
237(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and
(3)(A); provided that an alien who is deportable under section
237(a)(1)(A) of such Act is also ineligible for benefits under the
Family Unity Program if deportability is based
[[Page 10364]]
upon a ground of inadmissibility described in section 212(a)(2) or (3)
of the Act;
(b) An alien who has been convicted of a felony or three or more
misdemeanors in the United States; or
(c) An alien described in section 241(b)(3)(B) of the Act.
Sec. 236.14 Filing.
(a) General. An application for voluntary departure under the
Family Unity Program must be filed at the service center having
jurisdiction over the alien's place of residence. A Form I-817,
Application for Voluntary Departure under the Family Unity Program,
must be filed with the correct fee required in Sec. 103.7(b)(1) of this
chapter and the required supporting documentation. A separate
application with appropriate fee and documentation must be filed for
each person claiming eligibility.
(b) Decision. The service center director has sole jurisdiction to
adjudicate an application for benefits under the Family Unity Program.
The director will provide the applicant with specific reasons for any
decision to deny an application. Denial of an application may not be
appealed. An applicant who believes that the grounds for denial have
been overcome may submit another application with the appropriate fee
and documentation.
(c) Referral of denied cases for consideration of issuance of
notice to appear. If an application is denied, the case will be
referred to the district director with jurisdiction over the alien's
place of residence for consideration of whether to issue a notice to
appear. After an initial denial, an applicant's case will not be
referred for issuance of a notice to appear until 90 days from the date
of the initial denial, to allow the alien the opportunity to file a new
Form I-817 application in order to attempt to overcome the basis of the
denial. However, if the applicant is found not to be eligible for
benefits under Sec. 236.13(b), the Service reserves the right to issue
a notice to appear at any time after the initial denial.
Sec. 236.15 Voluntary departure and eligibility for employment.
(a) Authority. Voluntary departure under this section implements
the provisions of section 301 of IMMACT 90, and authority to grant
voluntary departure under the family unity program derives solely from
that section. Voluntary departure under the family unity program shall
be governed solely by this section, notwithstanding the provisions of
section 240B of the Act and 8 CFR part 240.
(b) Children of legalized aliens. Children of legalized aliens
residing in the United States, who were born during an authorized
absence from the United States of mothers who are currently residing in
the United States under voluntary departure pursuant to the Family
Unity Program, may be granted voluntary departure under section 301 of
IMMACT 90 for a period of 2 years.
(c) Duration of voluntary departure. An alien whose application for
benefits under the Family Unity Program is approved will receive
voluntary departure for 2 years, commencing with the date of approval
of the application. Voluntary departure under this section shall be
considered effective from the date on which the application was
properly filed.
(d) Employment authorization. An alien granted benefits under the
Family Unity Program is authorized to be employed in the United States
and may apply for an employment authorization document on Form I-765,
Application for Employment Authorization. The application may be filed
concurrently with Form I-817. The application must be accompanied by
the correct fee required by Sec. 103.7(b)(1) of this chapter. The
validity period of the employment authorization will coincide with the
period of voluntary departure.
(e) Extension of voluntary departure. An application for an
extension of voluntary departure under the Family Unity Program must be
filed by the alien on Form I-817 along with the correct fee required in
Sec. 103.7(b)(1) of this chapter and the required supporting
documentation. The submission of a copy of the previous approval notice
will assist in shortening the processing time. An extension may be
granted if the alien continues to be eligible for benefits under the
Family Unity Program. However, an extension may not be approved if the
legalized alien is a lawful permanent resident, and a petition for
family-sponsored immigrant status has not been filed in behalf of the
applicant. In such case the Service will notify the alien of the reason
for the denial and afford him or her the opportunity to file another
Form I-817 once the petition, Form I-130, has been filed in behalf of
him or her. No charging document will be issued for a period of 90
days.
(f) Supporting documentation for extension application. Supporting
documentation need not include documentation provided with the previous
application(s). The extension application need only include changes to
previous applications and evidence of continuing eligibility since the
date of the prior approval.
Sec. 236.16 Travel outside the United States.
An alien granted Family Unity Program benefits who intends to
travel outside the United States temporarily must apply for advance
authorization using Form I-131, Application for Travel Document. The
authority to grant an application for advance authorization for an
alien granted Family Unity Program benefits rests solely with the
district director. An alien who is granted advance authorization and
returns to the United States in accordance with such authorization, and
who is found not to be inadmissible under section 212(a)(2) or (3) of
the Act, shall be inspected and admitted in the same immigration status
as the alien had at the time of departure, and shall be provided the
remainder of the voluntary departure period previously granted under
the Family Unity Program.
Sec. 236.17 Eligibility for Federal financial assistance programs.
An alien granted Family Unity Program benefits based on a
relationship to a legalized alien as defined in Sec. 236.11 is
ineligible for public welfare assistance in the same manner and for the
same period as the legalized alien who is ineligible for such
assistance under section 245A(h) or 210(f) of the Act, respectively.
Sec. 236. 18 Termination of Family Unity Program benefits.
(a) Grounds for termination. The Service may terminate benefits
under the Family Unity Program whenever the necessity for the
termination comes to the attention of the Service. Such grounds will
exist in situations including, but not limited to, those in which:
(1) A determination is made that Family Unity Program benefits were
acquired as the result of fraud or willful misrepresentation of a
material fact;
(2) The beneficiary commits an act or acts which render him or her
inadmissible as an immigrant or who are ineligible for benefits under
the Family Unity Program;
(3) The legalized alien upon whose status benefits under the Family
Unity Program were based loses his or her legalized status;
(4) The beneficiary is the subject of a final order of exclusion,
deportation, or removal issued subsequent to the grant of Family Unity
benefits unless such final order is based on entry without inspection;
violation of status; or failure to comply with section 265 of the Act;
[[Page 10365]]
or inadmissibility at the time of entry other than inadmissibility
pursuant to section 212(a)(2) or 212(a)(3) of the Act, regardless of
whether the facts giving rise to such ground occurred before or after
the benefits were granted; or
(5) A qualifying relationship to a legalized alien no longer
exists.
(b) Notice procedure. Notice of intent to terminate and of the
grounds thereof shall be served pursuant to the provisions of
Sec. 103.5a of this chapter. The alien shall be given 30 days to
respond to the notice and may submit to the Service additional evidence
in rebuttal. Any final decision of termination shall also be served
pursuant to the provisions of Sec. 103.5a of this chapter. Nothing in
this section shall preclude the Service from commencing exclusion or
deportation proceedings prior to termination of Family Unity Program
benefits.
(c) Effect of termination. Termination of benefits under the Family
Unity Program, other than as a result of a final order of removal,
shall render the alien amenable to removal proceedings under section
240 of the Act. If benefits are terminated, the period of voluntary
departure under this section is also terminated.
PART 237--[REMOVED AND RESERVED]
100. Part 237 is removed and reserved.
101. Part 238 is added to read as follows:
PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
Sec.
238.1 Proceedings under section 238(b) of the Act.
Authority: 8 U.S.C. 1228; 8 CFR part 2.
Sec. 238.1 Proceedings under section 238(b) of the Act.
(a) Definitions. As used in this part:
Deciding Service officer means a district director, chief patrol
agent, or another immigration officer designated by a district director
or chief patrol agent, who is not the same person as the issuing
Service officer.
Issuing Service officer means any Service officer listed in
Sec. 239.1 of this chapter as authorized to issue notices to appear.
(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 an alien a Form I-851, Notice of Intent to Issue a Final
Administrative Deportation Order (Notice of Intent), if the officer is
satisfied that there is sufficient evidence, based upon questioning of
the alien by an immigration officer and upon any other evidence
obtained, to support a finding that the individual:
(i) Is an alien;
(ii) Has not been lawfully admitted for permanent residence, or has
conditional permanent resident status under section 216 of the Act;
(iii) Has been convicted (as defined in section 101(a)(48) of the
Act and as demonstrated by any of the documents or records listed in
Sec. 3.41 of this chapter) of an aggravated felony and such conviction
has become final; and
(iv) Is deportable under section 237(a)(2)(A)(iii) of the Act,
including an alien who has neither been admitted nor paroled, but who
is conclusively presumed deportable under section 237(a)(2)(A)(iii) by
operation of section 238(c) of the Act (``Presumption of
Deportability'').
(2) Notice. (i) Removal proceedings under section 238(b) of the Act
shall commence upon personal service of the Notice of Intent upon the
alien, as prescribed by Secs. 103.5a(a)(2) 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 Form I-851A, Final Administrative Removal Order, 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: has the privilege
of being represented, at no expense to the Government, by counsel of
the alien's choosing, as long as counsel is authorized to practice in
deportation proceedings; may inspect the evidence supporting the Notice
of Intent; and may rebut the charges within 10 calendar days after
service of such Notice (or 13 calendar days if service of the Notice
was by mail).
(ii) The Notice of Intent also shall advise the alien that he or
she may designate in writing, within the rebuttal period, the country
to which he or she chooses to be deported in accordance with section
241 of the Act, in the event that a Final Administrative Removal Order
is issued, and that the Service will honor such designation only to the
extent permitted under the terms, limitations, and conditions of
section 241 of the Act.
(iii) The Service must determine that the person served with the
Notice of Intent is the person named on the notice.
(iv) The Service shall provide the alien with a list of available
free legal services programs qualified under 8 CFR part 3 and
organizations recognized pursuant to 8 CFR part 292, located within the
district or sector where the Notice of Intent is issued.
(v) The Service must either provide the alien with a written
translation of the Notice of Intent or explain the contents of the
Notice of Intent to the alien in the alien's native language or in a
language that the alien understands.
(c) Alien's response. (1) Time for response. The alien will have 10
calendar days from service of the Notice of Intent, or 13 calendar days
if service is by mail, to file a response to the Notice of Intent. In
the response, the alien may: designate his or her choice of country for
removal; submit a written response rebutting the allegations supporting
the charge and/or requesting the opportunity to review the Government's
evidence; and/or request in writing an extension of time for response,
stating the specific reasons why such an extension is necessary.
Alternatively, the alien may, in writing, choose to accept immediate
issuance of a Final Administrative Removal Order. The deciding Service
officer may extend the time for response for good cause shown. A
request for extension of time for response will not automatically
extend the period for the response. The alien will be permitted to file
a response outside the prescribed period only if the deciding Service
officer permits it. The alien must send the response to the deciding
Service officer at the address provided in the Notice of Intent.
(2) Nature of rebuttal or request to review evidence. (i) If an
alien chooses to rebut the allegations contained in the Notice of
Intent, the alien's written response must indicate which finding(s) are
being challenged and should be accompanied by affidavit(s), documentary
information, or other specific evidence supporting the challenge.
(ii) If an alien's written response requests the opportunity to
review the Government's evidence, the Service shall serve the alien
with a copy of the evidence in the record of proceeding upon which the
Service is relying to support the charge. The alien may, within 10
calendar days following service of the Government's evidence (13
calendar days if service is by mail), furnish a final response in
accordance with paragraph (c)(1) of this section. If the alien's final
response is a rebuttal of the allegations, such a final response should
be accompanied by affidavit(s), documentary information, or other
[[Page 10366]]
specific evidence supporting the challenge.
(d) Determination by deciding Service officer. (1) No response
submitted or concession of deportability. If the deciding Service
officer does not receive a timely response and the evidence in the
record of proceeding establishes deportability by clear, convincing,
and unequivocal evidence, or if the alien concedes deportability, then
the deciding Service officer shall issue and cause to be served upon
the alien a Final Administrative Removal Order that states the reasons
for the deportation decision. The alien may, in writing, waive the 14-
day waiting period before execution of the final order of removal
provided in a paragraph (f) of this section.
(2) Response submitted. (i) Insufficient rebuttal; no genuine issue
of material fact. If the alien timely submits a rebuttal to the
allegations, but the deciding Service officer finds that deportability
is established by clear, convincing, and unequivocal evidence in the
record of proceeding, the deciding Service officer shall issue and
cause to be served upon the alien a Final Administrative Removal Order
that states the reasons for the decision of deportability.
(ii) Additional evidence required. (A) If the deciding Service
officer finds that the record of proceeding, including the alien's
timely rebuttal, raises a genuine issue of material fact regarding the
preliminary findings, the deciding Service officer may either obtain
additional evidence from any source, including the alien, or cause to
be issued a notice to appear to initiate removal proceedings under
section 240 of the Act. The deciding Service officer may also obtain
additional evidence from any source, including the alien, if the
deciding Service officer deems that such additional evidence may aid
the officer in the rendering of a decision.
(B) If the deciding Service officer considers additional evidence
from a source other than the alien, that evidence shall be made a part
of the record of proceeding, and shall be provided to the alien. If the
alien elects to submit a response to such additional evidence, such
response must be filed with the Service within 10 calendar days of
service of the additional evidence (or 13 calendar days if service is
by mail). If the deciding Service officer finds, after considering all
additional evidence, that deportability is established by clear,
convincing, and unequivocal evidence in the record of proceeding, the
deciding Service officer shall issue and cause to be served upon the
alien a Final Administrative Removal Order that states the reasons for
the decision of deportability.
(iii) Conversion to proceedings under section 240 of the Act. If
the deciding Service officer finds that the alien is not amenable to
removal under section 238 of the Act, the deciding Service officer
shall terminate the expedited proceedings under section 238 of the Act
and shall, where appropriate, cause to be issued a notice to appear for
the purpose of initiating removal proceedings before an immigration
judge under section 240 of the Act.
(3) Termination of proceedings by deciding Service officer. Only
the deciding Service officer may terminate proceedings under section
238 of the Act, in accordance with this section.
(e) Proceedings commenced under section 240 of the Act. In any
proceeding commenced under section 240 of the Act which is based on
deportability under section 237 of the Act, if it appears that the
respondent alien is subject to removal pursuant to section 238 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 238 of the Act. However, in
the absence of any such request, the immigration judge shall complete
the proceeding commenced under section 240 of the Act.
(f) Executing final removal order of deciding Service officer. (1)
Time of execution. Upon the issuance of a Final Administrative Removal
Order, the Service shall issue a Warrant of Removal in accordance with
Sec. 241.2 of this chapter; such warrant shall be executed no sooner
than 14 calendar days after the date the Final Administrative Removal
Order is issued, unless the alien knowingly, voluntarily, and in
writing waives the 14-day period.
(2) Country to which alien is to be removed. The deciding Service
officer shall designate the country of removal in the manner prescribed
by section 241 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 Removal, the alien may be arrested and
taken into custody under the authority of a Warrant of Arrest issued by
an officer listed in Sec. 287.5(e)(2) of this chapter. The decision of
the Service concerning custody or bond shall not be administratively
appealable during proceedings initiated under section 238 of the Act
and this part.
(h) Record of proceeding. The Service shall maintain a record of
proceeding for judicial review of the Final Administrative Removal
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 Removal Order (including
any supplemental memorandum of decision); the alien's response, if any;
all evidence in support of the charge; and any admissible evidence,
briefs, or documents submitted by either party respecting
deportability. The executed duplicate of the Notice of Intent in the
record of proceedings shall be retained as evidence that the individual
upon whom the notice for the proceeding was served was, in fact, the
alien named in the notice.
102. Part 239 is added to read as follows:
PART 239--INITIATION OF REMOVAL PROCEEDINGS
Sec.
239.1 Notice to appear.
239.2 Cancellation of notice to appear.
239.3 Effect of filing notice to appear.
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
Sec. 239.1 Notice to appear.
(a) Commencement. Every removal proceeding conducted under section
240 of the Act to determine the deportability or inadmissibility of an
alien is commenced by the filing of a notice to appear with the
Immigration Court. Any immigration officer performing an inspection of
an arriving alien at a port-of-entry may issue a notice to appear to
such an alien. In addition, the following officers, or officers acting
in such capacity, may issue a notice to appear:
(1) District directors (except foreign);
(2) Deputy district directors (except foreign);
(3) Assistant district directors for investigations;
(4) Deputy assistant district directors for investigations;
(5) Assistant district directors for deportation;
(6) Deputy assistant district directors for deportation;
(7) Assistant district directors for examinations;
(8) Deputy assistant district directors for examinations;
(9) Officers in charge (except foreign);
(10) Assistant officers in charge (except foreign);
(11) Chief patrol agents;
(12) Deputy chief patrol agents;
(13) Associate chief patrol agents;
[[Page 10367]]
(14) Assistant chief patrol agents;
(15) Patrol agents in charge;
(16) The Assistant Commissioner, Investigations;
(17) Service center directors;
(18) Deputy center directors;
(19) Assistant center directors for examinations;
(20) Supervisory asylum officers;
(21) Institutional Hearing Program directors; or
(22) Deputy Institutional Hearing Program directors.
(b) Service of notice to appear. Service of the notice to appear
shall be in accordance with section 239 of the Act.
Sec. 239.2 Cancellation of notice to appear.
(a) Any officer authorized by Sec. 239.1(a) to issue a notice to
appear may cancel such notice prior to jurisdiction vesting with the
immigration judge pursuant to Sec. 3.14 of this chapter provided the
officer is satisfied that:
(1) The respondent is a national of the United States;
(2) The respondent is not deportable or inadmissible under
immigration laws;
(3) The respondent is deceased;
(4) The respondent is not in the United States;
(5) The notice was issued for the respondent's failure to file a
timely petition as required by section 216(c) of the Act, but his or
her failure to file a timely petition was excused in accordance with
section 216(d)(2)(B) of the Act;
(6) The notice to appear was improvidently issued, or
(7) Circumstances of the case have changed after the notice to
appear was issued to such an extent that continuation is no longer in
the best interest of the government.
(b) A notice to appear issued pursuant to section 235(b)(3) of the
Act may be canceled under provisions in paragraphs (a)(2) and (a)(6) of
this section only by the issuing officer, unless it is impracticable
for the issuing officer to cancel the notice.
(c) Motion to dismiss. After commencement of proceedings pursuant
to Sec. 3.14 of this chapter, Service counsel, or any officer
enumerated in paragraph (a) of this section may move for dismissal of
the matter on the grounds set out under paragraph (a) of this section.
Dismissal of the matter shall be without prejudice to the alien or the
Service.
(d) Motion for remand. After commencement of the hearing, Service
counsel, or any officer enumerated in paragraph (a) of this section may
move for remand of the matter to district jurisdiction on the ground
that the foreign relations of the United States are involved and
require further consideration. Remand of the matter shall be without
prejudice to the alien or the Service.
(e) Warrant of arrest. When a notice to appear is canceled or
proceedings are terminated under this section any outstanding warrant
of arrest is canceled.
(f) Termination of removal proceedings by immigration judge. An
immigration judge may terminate removal proceedings to permit the alien
to proceed to a final hearing on a pending application or petition for
naturalization when the alien has established prima facie eligibility
for naturalization and the matter involves exceptionally appealing or
humanitarian factors; in every other case, the removal hearing shall be
completed as promptly as possible notwithstanding the pendency of an
application for naturalization during any state of the proceedings.
Sec. 239.3 Effect of filing notice to appear.
The filing of a notice to appear shall have no effect in
determining periods of unlawful presence as defined in section
212(a)(9)(B) of the Act.
Secs. 240.1-240.20 [Redesignated as Secs. 244.3-244.22]
103. Sections 240.1 through 240.20 are redesignated as Secs. 244.3
through 244.22.
104. Part 240 is revised to read as follows:
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
Subpart A--Removal Proceedings
Sec.
240.1 Immigration judges.
240.2 Service counsel.
240.3 Representation by counsel.
240.4 Incompetent respondents.
240.5 Interpreter.
240.6 Postponement and adjournment of hearing.
240.7 Evidence in removal proceedings under section 240 of the Act.
240.8 Burdens of proof in removal proceedings.
240.9 Contents of record.
240.10 Hearing.
240.11 Ancillary matters, applications.
240.12 Decision of the immigration judge.
240.13 Notice of decision.
240.14 Finality of order.
240.15 Appeals.
240.16 Application of new procedures or termination of proceedings
in old proceedings pursuant to section 309(c) of Public Law 104-208.
240.17-240.19 [Reserved]
Subpart B--Cancellation of Removal
240.20 Cancellation of removal and adjustment of status under
section 240A of the Act.
240.21-240.24 [Reserved]
Subpart C--Voluntary Departure
240.25 Voluntary departure--authority of the Service.
240.26 Voluntary departure--authority of the Executive Office for
Immigration Review.
240.27-240.29 [Reserved]
Subpart D--Exclusion of Aliens (for proceedings commenced prior to
April 1, 1997)
240.30 Proceedings prior to April 1, 1997.
240.31 Authority of immigration judges.
240.32 Hearing.
240.33 Applications for asylum or withholding of deportation.
240.34 Renewal of application for adjustment of status under
section 245 of the Act.
240.35 Decision of the immigration judge; notice to the applicant.
240.36 Finality of order.
240.37 Appeals.
240.38 Fingerprinting of excluded aliens.
240.39 [Reserved]
Subpart E--Proceedings to determine deportability of aliens in the
United States: Hearing and Appeal (for proceedings commenced prior to
April 1, 1997)
240.40 Proceedings commenced prior to April 1, 1997.
240.41 Immigration judges.
240.42 Representation by counsel.
240.43 Incompetent respondents.
240.44 Interpreter.
240.45 Postponement and adjournment of hearing.
240.46 Evidence.
240.47 Contents of record.
240.48 Hearing.
240.49 Ancillary matters, applications.
240.50 Decision of the immigration judge.
240.51 Notice of decision.
240.52 Finality of order.
240.53 Appeals.
240.54 [Reserved]
Subpart F--Suspension of Deportation and Voluntary Departure (for
proceedings commenced prior to April 1, 1997)
240.55 Proceedings commenced prior to April 1, 1997.
240.56 Application.
240.57 Extension of time to depart.
Subpart G--Civil Penalties for Failure to Depart [Reserved]
Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.
Subpart A--Removal Proceedings
Sec. 240.1 Immigration judges.
(a) Authority. In any removal proceeding pursuant to section 240 of
the Act, the immigration judge shall have the authority to: determine
removability pursuant to section
[[Page 10368]]
240(a)(1) of the Act; to make decisions, including orders of removal as
provided by section 240(c)(1)(A) of the Act; to determine applications
under sections 208, 212(a)(2)(F), 212(a)(6)(F)(ii), 212(a)(9)(B)(v),
212(d)(11), 212(d)(12), 212(g), 212(h), 212(i), 212(k),
237(a)(1)(E)(iii), 237(a)(1)(H), 237(a)(3)(C)(ii), 240A(a) and (b),
240B, 245, and 249 of the Act; to order withholding of removal pursuant
to section 241(b)(3) of the Act; and to take any other action
consistent with applicable law and regulations as may be appropriate.
In determining cases referred for further inquiry, immigration judges
shall have the powers and authority conferred upon them by the Act and
this chapter. Subject to any specific limitation prescribed by the Act
and this chapter, immigration judges shall also exercise the discretion
and authority conferred upon the Attorney General by the Act as is
appropriate and necessary for the disposition of such cases. An
immigration judge may certify his or her decision in any case under
section 240 of the Act to the Board of Immigration Appeals when it
involves an unusually complex or novel question of law or fact. Nothing
contained in this part shall be construed to diminish the authority
conferred on immigration judges under sections 101(b)(4) and 103 of the
Act.
(b) Withdrawal and substitution of immigration judges. The
immigration judge assigned to conduct the hearing shall at any time
withdraw if he or she deems himself or herself disqualified. If an
immigration judge becomes unavailable to complete his or her duties,
another immigration judge may be assigned to complete the case. The new
immigration judge shall familiarize himself or herself with the record
in the case and shall state for the record that he or she has done so.
(c) Conduct of hearing. The immigration judge shall receive and
consider material and relevant evidence, rule upon objections, and
otherwise regulate the course of the hearing.
Sec. 240.2 Service counsel.
(a) Authority. Service counsel shall present on behalf of the
government evidence material to the issues of deportability or
inadmissibility and any other issues that may require disposition by
the immigration judge. The duties of the Service counsel include, but
are not limited to, the presentation of evidence and the interrogation,
examination, and cross-examination of the respondent or other
witnesses. Nothing contained in this subpart diminishes the authority
of an immigration judge to conduct proceedings under this part. The
Service counsel is authorized to appeal from a decision of the
immigration judge pursuant to Sec. 3.38 of this chapter and to move for
reopening or reconsideration pursuant to Sec. 3.23 of this chapter.
(b) Assignment. In a removal proceeding, the Service shall assign
an attorney to each case within the provisions of Sec. 240.10(d), and
to each case in which an unrepresented respondent is incompetent or is
under 18 years of age, and is not accompanied by a guardian, relative,
or friend. In a case in which the removal proceeding would result in an
order of removal, the Service shall assign an attorney to each case in
which a respondent's nationality is in issue. A Service attorney shall
be assigned in every case in which the Commissioner approves the
submission of non-record information under Sec. 240.11(a)(3). In his or
her discretion, whenever he or she deems such assignment necessary or
advantageous, the General Counsel may assign a Service attorney to any
other case at any stage of the proceeding.
Sec. 240.3 Representation by counsel.
The respondent may be represented at the hearing by an attorney or
other representative qualified under 8 CFR part 292.
Sec. 240.4 Incompetent respondents.
When it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the attorney, legal
representative, legal guardian, near relative, or friend who was served
with a copy of the notice to appear shall be permitted to appear on
behalf of the respondent. If such a person cannot reasonably be found
or fails or refuses to appear, the custodian of the respondent shall be
requested to appear on behalf of the respondent.
Sec. 240.5 Interpreter.
Any person acting as an interpreter in a hearing before an
immigration judge under this part shall be sworn to interpret and
translate accurately, unless the interpreter is an employee of the
United States Government, in which event no such oath shall be
required.
Sec. 240.6 Postponement and adjournment of hearing.
After the commencement of the hearing, the immigration judge may
grant a reasonable adjournment either at his or her own instance or,
for good cause shown, upon application by the respondent or the
Service.
Sec. 240.7 Evidence in removal proceedings under section 240 of the
Act.
(a) Use of prior statements. The immigration judge may receive in
evidence any oral or written statement that is material and relevant to
any issue in the case previously made by the respondent or any other
person during any investigation, examination, hearing, or trial.
(b) Testimony. Testimony of witnesses appearing at the hearing
shall be under oath or affirmation administered by the immigration
judge.
(c) Depositions. The immigration judge may order the taking of
depositions pursuant to Sec. 3.35 of this chapter.
Sec. 240.8 Burdens of proof in removal proceedings.
(a) Deportable aliens. A respondent charged with deportability
shall be found to be removable if the Service proves by clear and
convincing evidence that the respondent is deportable as charged.
(b) Arriving aliens. In proceedings commenced upon a respondent's
arrival in the Untied States or after the revocation or expiration of
parole, the respondent must prove that he or she is clearly and beyond
a doubt entitled to be admitted to the United States and is not
inadmissible as charged.
(c) Aliens present in the United States without being admitted or
paroled. In the case of a respondent charged as being in the United
States without being admitted or paroled, the Service must first
establish the alienage of the respondent. Once alienage has been
established, unless the respondent demonstrates by clear and convincing
evidence that he or she is lawfully in the United States pursuant to a
prior admission, the respondent must prove that he or she is clearly
and beyond a doubt entitled to be admitted to the United States and is
not inadmissible as charged.
(d) Relief from removal. The respondent shall have the burden of
establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.
If the evidence indicates that one or more of the grounds for mandatory
denial of the application for relief may apply, the alien shall have
the burden of proving by a preponderance of the evidence that such
grounds do not apply.
Sec. 240.9 Contents of record.
The hearing before the immigration judge, including the testimony,
exhibits, applications, proffers, and requests, the immigration judge's
decision, and all
[[Page 10369]]
written orders, motions, appeals, briefs, and other papers filed in the
proceedings shall constitute the record in the case. The hearing shall
be recorded verbatim except for statements made off the record with the
permission of the immigration judge. In his or her discretion, the
immigration judge may exclude from the record any arguments made in
connection with motions, applications, requests, or objections, but in
such event the person affected may submit a brief.
Sec. 240.10 Hearing.
(a) Opening. In a removal proceeding, the immigration judge shall:
(1) Advise the respondent of his or her right to representation, at
no expense to the government, by counsel of his or her own choice
authorized to practice in the proceedings and require the respondent to
state then and there whether he or she desires representation;
(2) Advise the respondent of the availability of free legal
services provided by organizations and attorneys qualified under 8 CFR
part 3 and organizations recognized pursuant to Sec. 292.2 of this
chapter, located in the district where the removal hearing is being
held;
(3) Ascertain that the respondent has received a list of such
programs, and a copy of appeal rights;
(4) Advise the respondent that he or she will have a reasonable
opportunity to examine and object to the evidence against him or her,
to present evidence in his or her own behalf and to cross-examine
witnesses presented by the government (but the respondent shall not be
entitled to examine such national security information as the
government may proffer in opposition to the respondent's admission to
the United States or to an application by the respondent for
discretionary relief);
(5) Place the respondent under oath;
(6) Read the factual allegations and the charges in the notice to
appear to the respondent and explain them in non-technical language;
and
(7) Enter the notice to appear as an exhibit in the Record of
Proceeding.
(b) Public access to hearings. Removal hearings shall be open to
the public, except that the immigration judge may, in his or her
discretion, close proceedings as provided in Sec. 3.27 of this chapter.
(c) Pleading by respondent. The immigration judge shall require the
respondent to plead to the notice to appear by stating whether he or
she admits or denies the factual allegations and his or her
removability under the charges contained therein. If the respondent
admits the factual allegations and admits his or her removability under
the charges and the immigration judge is satisfied that no issues of
law or fact remain, the immigration judge may determine that
removability as charged has been established by the admissions of the
respondent. The immigration judge shall not accept an admission of
removability from an unrepresented respondent who is incompetent or
under the age of 18 and is not accompanied by an attorney or legal
representative, a near relative, legal guardian, or friend; nor from an
officer of an institution in which a respondent is an inmate or
patient. When, pursuant to this paragraph, the immigration judge does
not accept an admission of removability, he or she shall direct a
hearing on the issues.
(d) Issues of removability. When removability is not determined
under the provisions of paragraph (c) of this section, the immigration
judge shall request the assignment of an Service counsel, and shall
receive evidence as to any unresolved issues, except that no further
evidence need be received as to any facts admitted during the pleading.
The alien shall provide a court certified copy of a Judicial
Recommendation Against Deportation (JRAD) to the immigration judge when
such recommendation will be the basis of denying any charge(s) brought
by the Service in the proceedings against the alien. No JRAD is
effective against a charge of deportability under former section
241(a)(11) of the Act or if the JRAD was granted on or after November
29, 1990.
(e) Additional charges in removal hearings. At any time during the
proceeding, additional or substituted charges of inadmissibility and/or
deportability and/or factual allegations may be lodged by the Service
in writing. The alien in removal proceedings shall be served with a
copy of these additional charges and allegations. The immigration judge
shall read the additional factual allegations and charges to the alien
and explain them to him or her. The immigration judge shall advise the
alien, if he or she is not represented by counsel, that the alien may
be so represented, and that he or she may be given a reasonable
continuance to respond to the additional factual allegations and
charges. Thereafter, the provision of Sec. 240.6(b) relating to
pleading shall apply to the additional factual allegations and charges.
(f) Country of removal. The immigration judge shall notify the
alien that if he or she is finally ordered removed, the country of
removal will in the first instance be directed pursuant to section
241(b) of the Act to the country designated by the alien, unless
section 241(b)(2)(C) of the Act applies, and shall afford him or her an
opportunity then and there to make such designation. The immigration
judge shall then specify and state for the record the country, or
countries in the alternative, to which the alien's removal will be
directed pursuant to section 241(b) of the Act if the country of his or
her designation will not accept him or her into its territory, or fails
to furnish timely notice of acceptance, or if the alien declines to
designate a country.
(g) In the event that the Service is unable to remove the alien to
the specified or alternative country or countries, the Service may
remove the alien to any other country as permitted by section 241(b) of
the Act.
Sec. 240.11 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. (1) In a removal proceeding, an alien may apply to
the immigration judge for cancellation of removal under section 240A of
the Act, adjustment of status under section 245 of the Act, adjustment
of status under section 1 of the Act of November 2, 1966 (as modified
by section 606 of Public Law 104-132) or under section 101 or 104 of
the Act of October 28, 1977, or for the creation of a record of lawful
admission for permanent residence under section 249 of the Act. The
application shall be subject to the requirements of Sec. 240.20, and 8
CFR parts 245 and 249. The approval of any application made to the
immigration judge under section 245 of the Act by an alien spouse (as
defined in section 216(g)(1) of the Act) or by an alien entrepreneur
(as defined in section 216A(f)(1) of the Act) shall result in the
alien's obtaining the status of lawful permanent resident on a
conditional basis in accordance with the provisions of section 216 or
216A of the Act, whichever is applicable. However, the Petition to
Remove the Conditions on Residence required by section 216(c) of the
Act, or the Petition by Entrepreneur to Remove Conditions required by
section 216A(c) of the Act shall be made to the director in accordance
with 8 CFR part 216.
(2) In conjunction with any application for creation of status of
an alien lawfully admitted for permanent residence made to an
immigration judge, if the alien is inadmissible under any provision of
section 212(a) of the Act, and believes that he or she meets the
eligibility requirements for a waiver of the ground of inadmissibility,
he or
[[Page 10370]]
she may apply to the immigration judge for such waiver. The immigration
judge shall inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter and shall
afford the alien an opportunity to make application during the hearing.
(3) In exercising discretionary power when considering an
application for status as a permanent resident under this chapter, the
immigration judge may consider and base the decision on information not
contained in the record and not made available for inspection by the
alien, provided the Commissioner has determined that such information
is relevant and is classified under the applicable Executive Order as
requiring protection from unauthorized disclosure in the interest of
national security. Whenever the immigration judge believes that he or
she can do so while safeguarding both the information and its source,
the immigration judge should inform the alien of the general nature of
the information in order that the alien may have an opportunity to
offer opposing evidence. A decision based in whole or in part on such
classified information shall state that the information is material to
the decision.
(b) Voluntary departure. The alien may apply to the immigration
judge for voluntary departure in lieu of removal pursuant to section
240B of the Act and subpart C of this part.
(c) Applications for asylum and withholding of removal. (1) If the
alien expresses fear of persecution or harm upon return to any of the
countries to which the alien might be removed pursuant to
Sec. 240.10(f), and the alien has not previously filed an application
for asylum or withholding of removal that has been referred to the
immigration judge by an asylum officer in accordance with Sec. 208.14
of this chapter, the immigration judge shall:
(i) Advise the alien that he or she may apply for asylum in the
United States or withholding of removal to those countries;
(ii) Make available the appropriate application forms; and
(iii) Advise the alien of the privilege of being represented by
counsel at no expense to the government and of the consequences,
pursuant to section 208(d)(6) of the Act, of knowingly filing a
frivolous application for asylum. The immigration judge shall provide
to the alien a list of persons who have indicated their availability to
represent aliens in asylum proceedings on a pro bono basis.
(2) An application for asylum or withholding of removal must be
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy to the
Department of State pursuant to Sec. 208.11 of this chapter and shall
calendar the case for a hearing. The reply, if any, from the Department
of State, unless classified under the applicable Executive Order, shall
be given to both the alien and to the Service counsel representing the
government.
(3) Applications for asylum and withholding of removal so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 of this chapter after an
evidentiary hearing to resolve factual issues in dispute. An
evidentiary hearing extending beyond issues related to the basis for a
mandatory denial of the application pursuant to Sec. 208.14 or
Sec. 208.16 of this chapter is not necessary once the immigration judge
has determined that such a denial is required.
(i) Evidentiary hearings on applications for asylum or withholding
of removal will be open to the public unless the alien expressly
requests that the hearing be closed pursuant to Sec. 3.27 of this
chapter. The immigration judge shall inquire whether the alien requests
such closure.
(ii) Nothing in this section is intended to limit the authority of
the immigration judge to properly control the scope of any evidentiary
hearing.
(iii) During the removal hearing, the alien shall be examined under
oath on his or her application and may present evidence and witnesses
in his or her own behalf. The alien has the burden of establishing that
he or she is a refugee as defined in section 101(a)(42) of the Act
pursuant to the standards set forth in Sec. 208.13 of this chapter.
(iv) Service counsel may call witnesses and present evidence for
the record, including information classified under the applicable
Executive Order, provided the immigration judge or the Board has
determined that such information is relevant to the hearing. When the
immigration judge receives such classified information, he or she shall
inform the alien. The agency that provides the classified information
to the immigration judge may provide an unclassified summary of the
information for release to the alien, whenever it determines it can do
so consistently with safeguarding both the classified nature of the
information and its sources. The summary should be as detailed as
possible, in order that the alien may have an opportunity to offer
opposing evidence. A decision based in whole or in part on such
classified information shall state whether such information is material
to the decision.
(4) The decision of an immigration judge to grant or deny asylum or
withholding of removal shall be communicated to the alien and to the
Service counsel. An adverse decision shall state why asylum or
withholding of removal was denied.
(d) Application for relief under sections 237(a)(1)(H) and
237(a)(1)(E)(iii) of the Act. The respondent may apply to the
immigration judge for relief from removal under sections 237(a)(1)(H)
and 237(a)(1)(E)(iii) of the Act.
(e) General. An application under this section shall be made only
during the hearing and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does not
admit his or her alienage or deportability. However, nothing in this
section shall prohibit the Service from using information supplied in
an application for asylum or withholding of deportation or removal
submitted to the Service on or after January 4, 1995, as the basis for
issuance of a charging document or to establish alienage or
deportability in a case referred to an immigration judge under
Sec. 208.14(b) of this chapter. The alien shall have the burden of
establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.
Nothing contained in this section is intended to foreclose the
respondent from applying for any benefit or privilege that he or she
believes himself or herself eligible to receive in proceedings under
this part. Nothing in this section is intended to limit the Attorney
General's authority to remove an alien to any country permitted by
section 241(b) of the Act.
(f) Fees. The alien shall not be required to pay a fee on more than
one application within paragraphs (a) and (c) of this section, provided
that the minimum fee imposed when more than one application is made
shall be determined by the cost of the application with the highest
fee.
Sec. 240.12 Decision of the immigration judge.
(a) Contents. The decision of the immigration judge may be oral or
written. The decision of the immigration judge shall include a finding
as to inadmissibility or deportability. The formal enumeration of
findings is not required. The decision shall also contain reasons for
granting or denying the request. The decision shall be
[[Page 10371]]
concluded with the order of the immigration judge.
(b) Summary decision. Notwithstanding the provisions of paragraph
(a) of this section, in any case where inadmissibility or deportability
is determined on the pleadings pursuant to Sec. 240.10(b) and the
respondent does not make an application under Sec. 240.11, the alien is
statutorily ineligible for relief, or the respondent applies for
voluntary departure only and the immigration judge grants the
application, the immigration judge may enter a summary decision or, if
voluntary departure is granted, a summary decision with an alternate
order of removal.
(c) Order of the immigration judge. The order of the immigration
judge shall direct the respondent's removal, or the termination of the
proceedings, or such other disposition of the case as may be
appropriate. When removal is ordered, the immigration judge shall
specify the country, or countries in the alternate, to which
respondent's removal shall be directed. The immigration judge is
authorized to issue orders in the alternative or in combination as he
or she may deem necessary.
Sec. 240.13 Notice of decision.
(a) Written decision. A written decision shall be served upon the
respondent and the Service counsel, together with the notice referred
to in Sec. 3.3 of this chapter. Service by mail is complete upon
mailing.
(b) Oral decision. An oral decision shall be stated by the
immigration judge in the presence of the respondent and the Service
counsel, if any, at the conclusion of the hearing. A copy of the
summary written order shall be furnished at the request of the
respondent or the Service counsel.
(c) Summary decision. When the immigration judge renders a summary
decision as provided in Sec. 240.12(b), he or she shall serve a copy
thereof upon the respondent and the Service counsel at the conclusion
of the hearing.
(d) Decision to remove. If the immigration judge decides that the
respondent is removable and orders the respondent to be removed, the
immigration judge shall advise the respondent of such decision, and of
the consequences for failure to depart under the order of removal,
including civil and criminal penalties described at sections 274D and
243 of the Act. Unless appeal from the decision is waived, the
respondent shall be furnished with Form EOIR-26, Notice of Appeal, and
advised of the provisions of Sec. 240.15.
Sec. 240.14 Finality of order.
The order of the immigration judge shall become final in accordance
with Sec. 3.39 of this chapter.
Sec. 240.15 Appeals.
Pursuant to 8 CFR part 3, an appeal shall lie from a decision of an
immigration judge to the Board of Immigration Appeals, except that no
appeal shall lie from an order of removal entered in absentia. The
procedures regarding the filing of a Form EOIR 26, Notice of Appeal,
fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this
chapter. An appeal shall be filed within 30 calendar days after the
mailing of a written decision, the stating of an oral decision, or the
service of a summary decision. The filing date is defined as the date
of receipt of the Notice of Appeal by the Board of Immigration Appeals.
The reasons for the appeal shall be stated in the Notice of Appeal in
accordance with the provisions of Sec. 3.3(b) of this chapter. Failure
to do so may constitute a ground for dismissal of the appeal by the
Board pursuant to Sec. 3.1(d)(1-a) of this chapter.
Sec. 240.16 Application of new procedures or termination of
proceedings in old proceedings pursuant to section 309(c) of Public Law
104-208.
The Attorney General shall have the sole discretion to apply the
provisions of section 309(c) of Public Law 104-208, which provides for
the application of new removal procedures to certain cases in exclusion
or deportation proceedings and for the termination of certain cases in
exclusion or deportation proceedings and initiation of new removal
proceedings. The Attorney General's application of the provisions of
section 309(c) shall become effective upon publication of a notice in
the Federal Register. However, if the Attorney General determines, in
the exercise of his or her discretion, that the delay caused by
publication would adversely affect the interests of the United States
or the effective enforcement of the immigration laws, the Attorney
General's application shall become effective immediately upon issuance,
and shall be published in the Federal Register as soon as practicable
thereafter.
Secs. 240.17--240.19 [Reserved]
Subpart B--Cancellation of removal
Sec. 240.20 Cancellation of removal and adjustment of status under
section 240A of the Act.
(a) Jurisdiction. An application for the exercise of discretion
under section 240A of the Act shall be submitted on Form EOIR-42,
Application for Cancellation of Removal, to the Immigration Court
having administrative control over the Record of Proceeding of the
underlying removal proceeding under section 240 of the Act. The
application must be accompanied by payment of the filing fee as set
forth in Sec. 103.7(b) of this chapter or a request for a fee waiver.
(b) Filing the application. The application may be filed only with
the Immigration Court after jurisdiction has vested pursuant to
Sec. 3.14 of this chapter.
Secs. 240.21--240.24 [Reserved]
Subpart C--Voluntary Departure
Sec. 240.25 Voluntary departure--authority of the Service.
(a) Authorized officers. The authority contained in section 240B(a)
of the Act to permit aliens to depart voluntarily from the United
States may be exercised in lieu of being subject to proceedings under
section 240 of the Act by district directors, assistant district
directors for investigations, assistant district directors for
examinations, officers in charge, chief patrol agents, service center
directors, and assistant center directors for examinations.
(b) Conditions. The Service may attach to the granting of voluntary
departure any conditions it deems necessary to ensure the alien's
timely departure from the United States, including the posting of a
bond, continued detention pending departure, and removal under
safeguards. The alien shall be required to present to the Service, for
inspection and photocopying, his or her passport or other travel
documentation sufficient to assure lawful entry into the country to
which the alien is departing. The Service may hold the passport or
documentation for sufficient time to investigate its authenticity. A
voluntary departure order permitting an alien to depart voluntarily
shall inform the alien of the penalties under section 240B(d) of the
Act.
(c) Decision. The authorized officer, in his or her discretion,
shall specify the period of time permitted for voluntary departure, and
may grant extensions thereof, except that the total period allowed,
including any extensions, shall not exceed 120 days. Every decision
regarding voluntary departure shall be communicated in writing on Form
I-210, Notice of Action--Voluntary Departure. Voluntary departure may
not be granted unless the alien requests such voluntary departure and
agrees to its terms and conditions.
(d) Application. Any alien who believes himself or herself to be
eligible
[[Page 10372]]
for voluntary departure under this section may apply therefor at any
office of the Service. After the commencement of removal proceedings,
the application may be communicated through the Service counsel. If the
Service agrees to voluntary departure after proceedings have commenced,
it may either:
(1) Join in a motion to terminate the proceedings, and if the
proceedings are terminated, grant voluntary departure; or
(2) Join in a motion asking the immigration judge to permit
voluntary departure in accordance with Sec. 240.26.
(e) Appeals. An appeal shall not lie from a denial of an
application for voluntary departure under this section, but the denial
shall be without prejudice to the alien's right to apply to the
immigration judge for voluntary departure in accordance with
Sec. 240.26 or for relief from removal under any provision of law.
(f) Revocation. If, subsequent to the granting of an application
for voluntary departure under this section, it is ascertained that the
application should not have been granted, that grant may be revoked
without advance notice by any officer authorized to grant voluntary
departure under Sec. 240.25(a). Such revocation shall be communicated
in writing, citing the statutory basis for revocation. No appeal shall
lie from revocation.
Sec. 240.26 Voluntary departure--authority of the Executive Office for
Immigration Review.
(a) Eligibility: general. An alien previously granted voluntary
departure under section 240B of the Act, including by the Service under
Sec. 240.25, and who fails to depart voluntarily within the time
specified, shall thereafter be ineligible, for a period of ten years,
for voluntary departure or for relief under sections 240A, 245, 248,
and 249 of the Act.
(b) Prior to completion of removal proceedings.--(1) Grant by the
immigration judge. (i) An alien may be granted voluntary departure by
an immigration judge pursuant to section 240B(a) of the Act only if the
alien:
(A) Makes such request prior to or at the master calendar hearing
at which the case is initially calendared for a merits hearing;
(B) Makes no additional requests for relief (or if such requests
have been made, such requests are withdrawn prior to any grant of
voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section
101(a)(43) of the Act and is not deportable under section 237(a)(4).
(ii) The judge may not grant voluntary departure under section
240B(a) of the Act beyond 30 days after the master calendar hearing at
which the case is initially calendared for a merits hearing, except
pursuant to a stipulation under paragraph (b)(2) of this section.
(2) Stipulation. At any time prior to the completion of removal
proceedings, the Service counsel may stipulate to a grant of voluntary
departure under section 240B(a) of the Act.
(3) Conditions. (i) The judge may impose such conditions as he or
she deems necessary to ensure the alien's timely departure from the
United States, including the posting of a voluntary departure bond to
be canceled upon proof that the alien has departed the United States
within the time specified. The alien shall be required to present to
the Service, for inspection and photocopying, his or her passport or
other travel documentation sufficient to assure lawful entry into the
country to which the alien is departing, unless:
(A) A travel document is not necessary to return to his or her
native country or to which country the alien is departing; or
(B) The document is already in the possession of the Service.
(ii) The Service may hold the passport or documentation for
sufficient time to investigate its authenticity. If such documentation
is not immediately available to the alien, but the immigration judge is
satisfied that the alien is making diligent efforts to secure it,
voluntary departure may be granted for a period not to exceed 120 days,
subject to the condition that the alien within 60 days must secure such
documentation and present it to the Service. The Service in its
discretion may extend the period within which the alien must provide
such documentation. If the documentation is not presented within the
60-day period or any extension thereof, the voluntary departure order
shall vacate automatically and the alternate order of removal will take
effect, as if in effect on the date of issuance of the immigration
judge order.
(c) At the conclusion of the removal proceedings.--(1) Required
findings. An immigration judge may grant voluntary departure at the
conclusion of the removal proceedings under section 240B(b) of the Act,
if he or she finds that:
(i) The alien has been physically present in the United States for
period of at least one year preceding the date the Notice to Appear was
served under section 239(a) of the Act;
(ii) The alien is, and has been, a person of good moral character
for at least five years immediately preceding the application;
(iii) The alien has not been convicted of a crime described in
section 101(a)(43) of the Act and is not deportable under section
237(a)(4); and
(iv) The alien has established by clear and convincing evidence
that the alien has the means to depart the United States and has the
intention to do so.
(2) Travel documentation. Except as otherwise provided in paragraph
(b)(3) of this section, the clear and convincing evidence of the means
to depart shall include in all cases presentation by the alien of a
passport or other travel documentation sufficient to assure lawful
entry into the country to which the alien is departing. The Service
shall have full opportunity to inspect and photocopy the documentation,
and to challenge its authenticity or sufficiency before voluntary
departure is granted.
(3) Conditions. The judge may impose such conditions as he or she
deems necessary to ensure the alien's timely departure from the United
States. In all cases under section 240B(b) of the Act, the alien shall
be required to post a voluntary departure bond, in an amount necessary
to ensure that the alien departs within the time specified, but in no
case less than $500. The voluntary departure bond shall be posted with
the district director within 5 business days of the immigration judge's
order granting voluntary departure, and the district director may, at
his or her discretion, hold the alien in custody until the bond is
posted. If the bond is not posted within 5 business days, the voluntary
departure order shall vacate automatically and the alternate order of
removal will take effect on the following day. In order for the bond to
be canceled, the alien must provide proof of departure to the district
director.
(d) Alternate order of removal. Upon granting a request made for
voluntary departure either prior to the completion of proceedings or at
the conclusion of proceedings, the immigration judge shall also enter
an alternate order or removal.
(e) Periods of time. If voluntary departure is granted prior to the
completion of removal proceedings, the immigration judge may grant a
period not to exceed 120 days. If voluntary departure is granted at the
conclusion of proceedings, the immigration judge may grant a period not
to exceed 60 days.
(f) Extension of time to depart. Authority to extend the time
within which to depart voluntarily specified initially by an
immigration judge or the Board is within the sole jurisdiction of
[[Page 10373]]
the district director. An immigration judge or the Board may reinstate
voluntary departure in a removal proceeding that has been reopened for
a purpose other than solely making an application for voluntary
departure if reopening was granted prior to the expiration of the
original period of voluntary departure. In no event can the total
period of time, including any extension, exceed 120 days or 60 days as
set forth in section 240B of the Act.
(g) Administrative Appeals. No appeal shall lie regarding the
length of a period of voluntary departure (as distinguished from issues
of whether to grant voluntary departure).
(h) Reinstatement of voluntary departure. An immigration judge or
the Board may reinstate voluntary departure in a removal proceeding
that has been reopened for a purpose other than solely making
application for voluntary departure, if reopening was granted prior to
the expiration of the original period of voluntary departure. In no
event can the total period of time, including any extension, exceed 120
days or 60 days as set forth in section 240B of the Act and paragraph
(a) of this section.
Secs. 240.27-240.29 [Reserved]
Subpart D--Exclusion of Aliens (for proceedings commenced prior to
April 1, 1997)
Sec. 240.30 Proceedings prior to April 1, 1997.
Subpart D of 8 CFR part 240 applies to exclusion proceedings
commenced prior to April 1, 1997, pursuant to the former section 236 of
the Act. An exclusion proceeding is commenced by the filing of Form I-
122 with the Immigration Court, and an alien is considered to be in
exclusion proceedings only upon such filing. All references to the Act
contained in this subpart are references to the Act in effect prior to
April 1, 1997.
Sec. 240.31 Authority of immigration judges.
In determining cases referred for further inquiry as provided in
section 235 of the Act, immigration judges shall have the powers and
authority conferred upon them by the Act and this chapter. Subject to
any specific limitation prescribed by the Act and this chapter,
immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and
necessary for the disposition of such cases.
Sec. 240.32 Hearing.
(a) Opening. Exclusion hearings shall be closed to the public,
unless the alien at his or her own instance requests that the public,
including the press, be permitted to attend; in that event, the hearing
shall be open, provided that the alien states for the record that he or
she is waiving the requirement in section 236 of the Act that the
inquiry shall be kept separate and apart from the public. When the
hearing is to be open, depending upon physical facilities, reasonable
limitation may be placed upon the number in attendance at any one time,
with priority being given to the press over the general public. The
immigration judge shall ascertain whether the applicant for admission
is the person to whom Form I-122 was previously delivered by the
examining immigration officer as provided in 8 CFR part 235; enter a
copy of such form in evidence as an exhibit in the case; inform the
applicant of the nature and purpose of the hearing; advise him or her
of the privilege of being represented by an attorney of his or her own
choice at no expense to the Government, and of the availability of free
legal services programs qualified under 8 CFR part 3 and organizations
recognized pursuant to Sec. 292.2 of this chapter located in the
district where his or her exclusion hearing is to be held; and shall
ascertain that the applicant has received a list of such programs; and
request him or her to ascertain then and there whether he or she
desires representation; advise him or her that he or she will have a
reasonable opportunity to present evidence in his or her own behalf, to
examine and object to evidence against him or her, and to cross-examine
witnesses presented by the Government; and place the applicant under
oath.
(b) Procedure. The immigration judge shall receive and adduce
material and relevant evidence, rule upon objections, and otherwise
regulate the course of the hearing.
(c) Attorney for the Service. The Service shall assign an attorney
to each case in which an applicant's nationality is in issue and may
assign an attorney to any case in which such assignment is deemed
necessary or advantageous. The duties of the Service counsel include,
but are not limited to, the presentation of evidence and the
interrogation, examination, and cross-examination of the applicant and
other witnesses. Nothing contained in this section diminishes the
authority of an immigration judge to conduct proceedings under this
part.
(d) Depositions. The procedures specified in Sec. 240.48(e) shall
apply.
(e) Record. The hearing before the immigration judge, including the
testimony, exhibits, applications, proffers, and requests, the
immigration judge's decision, and all written orders, motions, appeals,
and other papers filed in the proceeding shall constitute the record in
the case. The hearing shall be recorded verbatim except for statements
made off the record with the permission of the immigration judge.
Sec. 240.33 Applications for asylum or withholding of deportation.
(a) If the alien expresses fear of persecution or harm upon return
to his or her country of origin or to a country to which the alien may
be deported after a determination of excludability from the United
States pursuant to this subpart, and the alien has not been referred to
the immigration judge by an asylum officer in accordance with
Sec. 208.14(b) of this chapter, the immigration judge shall:
(1) Advise the alien that he or she may apply for asylum in the
United States or withholding of deportation to that other country; and
(2) Make available the appropriate application forms.
(b) An application for asylum or withholding of deportation must be
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy to the
Department of State pursuant to Sec. 208.11 of this chapter and shall
calendar the case for a hearing. The reply, if any, from the Department
of State, unless classified under the applicable Executive Order, shall
be given to both the applicant and to the Service counsel representing
the government.
(c) Applications for asylum or withholding of deportation so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 after an evidentiary
hearing that is necessary to resolve material factual issues in
dispute. An evidentiary hearing extending beyond issues related to the
basis for a mandatory denial of the application pursuant to
Sec. 208.13(c) of this chapter is not necessary once the immigration
judge has determined that such denial is required.
(1) Evidentiary hearings on applications for asylum or withholding
of deportation will be closed to the public unless the applicant
expressly requests that it be open pursuant to Sec. 236.3 of this
chapter.
(2) Nothing in this section is intended to limit the authority of
the immigration judge properly to control the scope of any evidentiary
hearing.
(3) During the exclusion hearing, the applicant shall be examined
under oath on his or her application and may
[[Page 10374]]
present evidence and witnesses on his or her own behalf. The applicant
has the burden of establishing that he or she is a refugee as defined
in section 101(a)(42) of the Act pursuant to the standard set forth in
Sec. 208.13 of this chapter.
(4) The Service counsel for the government may call witnesses and
present evidence for the record, including information classified under
the applicable Executive Order, provided the immigration judge or the
Board has determined that such information is relevant to the hearing.
The applicant shall be informed when the immigration judge receives
such classified information. The agency that provides the classified
information to the immigration judge may provide an unclassified
summary of the information for release to the applicant whenever it
determines it can do so consistently with safeguarding both the
classified nature of the information and its source. The summary should
be as detailed as possible, in order that the applicant may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state that such information
is material to the decision.
(d) The decision of an immigration judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and
to the Service counsel for the government. An adverse decision will
state why asylum or withholding of deportation was denied.
Sec. 240.34 Renewal of application for adjustment of status under
section 245 of the Act.
An adjustment application by an alien paroled under section
212(d)(5) of the Act, which has been denied by the district director,
may be renewed in exclusion proceedings under section 236 of the Act
(as in effect prior to April 1, 1997) before an immigration judge under
the following two conditions: first, the denied application must have
been properly filed subsequent to the applicant's earlier inspection
and admission to the United States; and second, the applicant's later
absence from and return to the United States must have been under the
terms of an advance parole authorization on Form I-512 granted to
permit the applicant's absence and return to pursue the previously
filed adjustment application.
Sec. 240.35 Decision of the immigration judge; notice to the
applicant.
(a) Decision. The immigration judge shall inform the applicant of
his or her decision in accordance with Sec. 3.37 of this chapter.
(b) Advice to alien ordered excluded. An alien ordered excluded
shall be furnished with Form I-296, Notice to Alien Ordered Excluded by
Immigration Judge, at the time of an oral decision by the immigration
judge or upon service of a written decision.
(c) Holders of refugee travel documents. Aliens who are the holders
of valid unexpired refugee travel documents may be ordered excluded
only if they are found to be inadmissible under section 212(a)(2),
212(a)(3), or 212(a)(6)(E) of the Act, and it is determined that on the
basis of the acts for which they are inadmissible there are compelling
reasons of national security or public order for their exclusion. If
the immigration judge finds that the alien is inadmissible but
determines that there are no compelling reasons of national security or
public order for exclusion, the immigration judge shall remand the case
to the district director for parole.
Sec. 240.36 Finality of order.
The decision of the immigration judge shall become final in
accordance with Sec. 3.37 of this chapter.
Sec. 240.37 Appeals.
Except for temporary exclusions under section 235(c) of the Act, an
appeal from a decision of an Immigration Judge under this part may be
taken by either party pursuant to Sec. 3.38 of this chapter.
Sec. 240.38 Fingerprinting of excluded aliens.
Every alien 14 years of age or older who is excluded from admission
to the United States by an immigration judge shall be fingerprinted,
unless during the preceding year he or she has been fingerprinted at an
American consular office.
Sec. 240.39 [Reserved]
Subpart E--Proceedings to Determine Deportability of Aliens in the
United States: Hearing and Appeal (for proceedings commenced prior
to April 1, 1997)
Sec. 240.40 Proceedings commenced prior to April 1, 1997.
Subpart E of 8 CFR part 240 applies only to deportation proceedings
commenced prior to April 1, 1997. A deportation proceeding is commenced
by the filing of Form I-221 (Order to Show Cause) with the Immigration
Court, and an alien is considered to be in deportation proceedings only
upon such filing, except in the case of an alien admitted to the United
States under the provisions of section 217 of the Act. All references
to the Act contained in this subpart pertain to the Act as in effect
prior to April 1, 1997.
Sec. 240.41 Immigration judges.
(a) Authority. In any proceeding conducted under this part the
immigration judge shall have the authority to determine deportability
and to make decisions, including orders of deportation, as provided by
section 242(b) and 242B of the Act; to reinstate orders of deportation
as provided by section 242(f) of the Act; to determine applications
under sections 208, 212(k), 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245
and 249 of the Act; to determine the country to which an alien's
deportation will be directed in accordance with section 243(a) of the
Act; to order temporary withholding of deportation pursuant to section
243(h) of the Act; and to take any other action consistent with
applicable law and regulations as may be appropriate. An immigration
judge may certify his or her decision in any case to the Board of
Immigration Appeals when it involves an unusually complex or novel
question of law or fact. Nothing contained in this part shall be
construed to diminish the authority conferred on immigration judges
under section 103 of the Act.
(b) Withdrawal and substitution of immigration judges. The
immigration judge assigned to conduct the hearing shall at any time
withdraw if he or she deems himself or herself disqualified. If an
immigration judge becomes unavailable to complete his or her duties
within a reasonable time, or if at any time the respondent consents to
a substitution, another immigration judge may be assigned to complete
the case. The new immigration judge shall familiarize himself or
herself with the record in the case and shall state for the record that
he or she has done so.
Sec. 240.42 Representation by counsel.
The respondent may be represented at the hearing by an attorney or
other representative qualified under 8 CFR part 292.
Sec. 240.43 Incompetent respondents.
When it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the guardian, near relative, or
friend who was served with a copy of the order to show cause shall be
permitted to appear on behalf of the respondent. If such a person
cannot reasonably be found or fails or refuses to appear, the custodian
of the respondent shall be requested to appear on behalf of the
respondent.
[[Page 10375]]
Sec. 240.44 Interpreter.
Any person acting as interpreter in a hearing before an immigration
judge under this part shall be sworn to interpret and translate
accurately, unless the interpreter is an employee of the United States
Government, in which event no such oath shall be required.
Sec. 240.45 Postponement and adjournment of hearing.
After the commencement of the hearing, the immigration judge may
grant a reasonable adjournment either at his or her own instance or,
for good cause shown, upon application by the respondent or the
Service.
Sec. 240.46 Evidence.
(a) Sufficiency. A determination of deportability shall not be
valid unless it is found by clear, unequivocal, and convincing evidence
that the facts alleged as grounds for deportation are true.
(b) Use of prior statements. The immigration judge may receive in
evidence any oral or written statement that is material and relevant to
any issue in the case previously made by the respondent or any other
person during any investigation, examination, hearing, or trial.
(c) Testimony. Testimony of witnesses appearing at the hearing
shall be under oath or affirmation administered by the immigration
judge.
(d) Depositions. The immigration judge may order the taking of
depositions pursuant to Sec. 3.35 of this chapter.
Sec. 240.47 Contents of record.
The hearing before the immigration judge, including the testimony,
exhibits, applications, proffers, and requests, the immigration judge's
decision, and all written orders, motions, appeals, briefs, and other
papers filed in the proceedings shall constitute the record in the
case. The hearing shall be recorded verbatim except for statements made
off the record with the permission of the immigration judge. In his or
her discretion, the immigration judge may exclude from the record any
arguments made in connection with motions, applications, requests, or
objections, but in such event the person affected may submit a brief.
Sec. 240.48 Hearing.
(a) Opening. The immigration judge shall advise the respondent of
his or her right to representation, at no expense to the Government, by
counsel of his or her own choice authorized to practice in the
proceedings and require him or her to state then and there whether he
or she desires representation; advise the respondent of the
availability of free legal services programs qualified under 8 CFR part
3 and organizations recognized pursuant to Sec. 292.2 of this chapter,
located in the district where the deportation hearing is being held;
ascertain that the respondent has received a list of such programs, and
a copy of Form I-618, Written Notice of Appeal Rights; advise the
respondent that he or she will have a reasonable opportunity to examine
and object to the evidence against him or her, to present evidence in
his or her own behalf and to cross-examine witnesses presented by the
Government; place the respondent under oath; read the factual
allegations and the charges in the order to show cause to the
respondent and explain them in nontechnical language, and enter the
order to show cause as an exhibit in the record. Deportation hearings
shall be open to the public, except that the immigration judge may, in
his or her discretion and for the purpose of protecting witnesses,
respondents, or the public interest, direct that the general public or
particular individuals shall be excluded from the hearing in any
specific case. Depending upon physical facilities, reasonable
limitation may be placed upon the number in attendance at any one time,
with priority being given to the press over the general public.
(b) Pleading by respondent. The immigration judge shall require the
respondent to plead to the order to show cause by stating whether he or
she admits or denies the factual allegations and his or her
deportability under the charges contained therein. If the respondent
admits the factual allegations and admits his or her deportability
under the charges and the immigration judge is satisfied that no issues
of law or fact remain, the immigration judge may determine that
deportability as charged has been established by the admissions of the
respondent. The immigration judge shall not accept an admission of
deportability from an unrepresented respondent who is incompetent or
under age 16 and is not accompanied by a guardian, relative, or friend;
nor from an officer of an institution in which a respondent is an
inmate or patient. When, pursuant to this paragraph, the immigration
judge may not accept an admission of deportability, he or she shall
direct a hearing on the issues.
(c) Issues of deportability. When deportability is not determined
under the provisions of paragraph (b) of this section, the immigration
judge shall request the assignment of a Service counsel, and shall
receive evidence as to any unresolved issues, except that no further
evidence need be received as to any facts admitted during the pleading.
The respondent shall provide a court certified copy of a Judicial
Recommendation Against Deportation (JRAD) to the immigration judge when
such recommendation will be the basis of denying any charge(s) brought
by the Service in the proceedings against the respondent. No JRAD is
effective against a charge of deportability under section 241(a)(11) of
the Act or if the JRAD was granted on or after November 29, 1990.
(d) Additional charges. The Service may at any time during a
hearing lodge additional charges of deportability, including factual
allegations, against the respondent. Copies of the additional factual
allegations and charges shall be submitted in writing for service on
the respondent and entry as an exhibit in the record. The immigration
judge shall read the additional factual allegations and charges to the
respondent and explain them to him or her. The immigration judge shall
advise the respondent if he or she is not represented by counsel that
he or she may be so represented and also that he or she may have a
reasonable time within which to meet the additional factual allegations
and charges. The respondent shall be required to state then and there
whether he or she desires a continuance for either of these reasons.
Thereafter, the provisions of paragraph (b) of this section shall apply
to the additional factual allegations and lodged charges.
Sec. 240.49 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. The respondent may apply to the immigration judge
for suspension of deportation under section 244(a) of the Act; for
adjustment of status under section 245 of the Act, or under section 1
of the Act of November 2, 1966, or under section 101 or 104 of the Act
of October 28, 1977; or for the creation of a record of lawful
admission for permanent residence under section 249 of the Act. The
application shall be subject to the requirements of 8 CFR parts 240,
245, and 249. The approval of any application made to the immigration
judge under section 245 of the Act by an alien spouse (as defined in
section 216(g)(1) of the Act) or by an alien entrepreneur (as defined
in section 216A(f)(1) of the Act), shall result in the alien's
obtaining the status of lawful permanent resident on a conditional
basis in accordance with the provisions of section 216 or 216A of the
Act, whichever is applicable. However, the Petition to Remove the
Conditions on
[[Page 10376]]
Residence required by section 216(c) of the Act or the Petition by
Entrepreneur to Remove Conditions required by section 216A(c) of the
Act shall be made to the director in accordance with 8 CFR part 216. In
conjunction with any application for creation of status of an alien
lawfully admitted for permanent residence made to an immigration judge,
if the respondent is inadmissible under any provision of section 212(a)
of the Act and believes that he or she meets the eligibility
requirements for a waiver of the ground of inadmissibility, he or she
may apply to the immigration judge for such waiver. The immigration
judge shall inform the respondent of his or her apparent eligibility to
apply for any of the benefits enumerated in this paragraph and shall
afford the respondent an opportunity to make application therefor
during the hearing. In exercising discretionary power when considering
an application under this paragraph, the immigration judge may consider
and base the decision on information not contained in the record and
not made available for inspection by the respondent, provided the
Commissioner has determined that such information is relevant and is
classified under the applicable Executive Order as requiring protection
from unauthorized disclosure in the interest of national security.
Whenever the immigration judge believes that he or she can do so while
safeguarding both the information and its source, the immigration judge
should inform the respondent of the general nature of the information
in order that the respondent may have an opportunity to offer opposing
evidence. A decision based in whole or in part on such classified
information shall state that the information is material to the
decision.
(b) Voluntary departure. The respondent may apply to the
immigration judge for voluntary departure in lieu of deportation
pursuant to section 244(e) of the Act and Sec. 240.56.
(c) Applications for asylum or withholding of deportation. (1) The
immigration judge shall notify the respondent that if he or she is
finally ordered deported, his or her deportation will in the first
instance be directed pursuant to section 243(a) of the Act to the
country designated by the respondent and shall afford him or her an
opportunity then and there to make such designation. The immigration
judge shall then specify and state for the record the country, or
countries in the alternative, to which respondent's deportation will be
directed pursuant to section 243(a) of the Act if the country of his or
her designation will not accept him or her into its territory, or fails
to furnish timely notice of acceptance, or if the respondent declines
to designate a country.
(2) If the alien expresses fear of persecution or harm upon return
to any of the countries to which the alien might be deported pursuant
to paragraph (c)(1) of this section, and the alien has not previously
filed an application for asylum or withholding of deportation that has
been referred to the immigration judge by an asylum officer in
accordance with Sec. 208.14(b) of this chapter, the immigration judge
shall:
(i) Advise the alien that he or she may apply for asylum in the
United States or withholding of deportation to those countries; and
(ii) Make available the appropriate application forms.
(3) An application for asylum or withholding of deportation must be
filed with the Immigration Court, pursuant to Sec. 208.4(b) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy to the
Department of State pursuant to Sec. 208.11 of this chapter and shall
calendar the case for a hearing. The reply, if any, of the Department
of State, unless classified under the applicable Executive Order, shall
be given to both the applicant and to the Service counsel representing
the government.
(4) Applications for asylum or withholding of deportation so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 after an evidentiary
hearing that is necessary to resolve factual issues in dispute. An
evidentiary hearing extending beyond issues related to the basis for a
mandatory denial of the application pursuant to Sec. 208.13 or
Sec. 208.16 of this chapter is not necessary once the immigration judge
has determined that such a denial is required.
(i) Evidentiary hearings on applications for asylum or withholding
of deportation will be open to the public unless the applicant
expressly requests that it be closed.
(ii) Nothing in this section is intended to limit the authority of
the immigration judge properly to control the scope of any evidentiary
hearing.
(iii) During the deportation hearing, the applicant shall be
examined under oath on his or her application and may present evidence
and witnesses in his or her own behalf. The applicant has the burden of
establishing that he or she is a refugee as defined in section
101(a)(42) of the Act pursuant to the standard set forth in Sec. 208.13
of this chapter.
(iv) The Service counsel for the government may call witnesses and
present evidence for the record, including information classified under
the applicable Executive Order, provided the immigration judge or the
Board has determined that such information is relevant to the hearing.
When the immigration judge receives such classified information he or
she shall inform the applicant. The agency that provides the classified
information to the immigration judge may provide an unclassified
summary of the information for release to the applicant, whenever it
determines it can do so consistently with safeguarding both the
classified nature of the information and its source. The summary should
be as detailed as possible, in order that the applicant may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state whether such
information is material to the decision.
(5) The decision of an immigration judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and
to the Service counsel for the government. An adverse decision will
state why asylum or withholding of deportation was denied.
(d) Application for relief under sections 241(a)(1)(H) and
241(a)(1)(E)(iii) of the Act. The respondent may apply to the
immigration judge for relief from deportation under sections
241(a)(1)(H) and 241(a)(1)(E)(iii) of the Act.
(e) General. An application under this section shall be made only
during the hearing and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does not
admit his alienage or deportability. However, nothing in this section
shall prohibit the Service from using information supplied in an
application for asylum or withholding of deportation submitted to an
asylum officer pursuant to Sec. 208.2 of this chapter on or after
January 4, 1995, as the basis for issuance of an order to show cause or
a notice to appear to establish alienage or deportability in a case
referred to an immigration judge under Sec. 208.14(b) of this chapter.
The respondent shall have the burden of establishing that he or she is
eligible for any requested benefit or privilege and that it should be
granted in the exercise of discretion. The respondent shall not be
required to pay a fee on more than one application within paragraphs
(a)
[[Page 10377]]
and (c) of this section, provided that the minimum fee imposed when
more than one application is made shall be determined by the cost of
the application with the highest fee. Nothing contained in this section
is intended to foreclose the respondent from applying for any benefit
or privilege which he or she believes himself or herself eligible to
receive in proceedings under this part.
Sec. 240.50 Decision of the immigration judge.
(a) Contents. The decision of the immigration judge may be oral or
written. Except when deportability is determined on the pleadings
pursuant to Sec. 240.48(b), the decision of the immigration judge shall
include a finding as to deportability. The formal enumeration of
findings is not required. The decision shall also contain the reasons
for granting or denying the request. The decision shall be concluded
with the order of the immigration judge.
(b) Summary decision. Notwithstanding the provisions of paragraph
(a) of this section, in any case where deportability is determined on
the pleadings pursuant to Sec. 240.48(b) and the respondent does not
make an application under Sec. 240.49, or the respondent applies for
voluntary departure only and the immigration judge grants the
application, the immigration judge may enter a summary decision on Form
EOIR-7, Summary Order of Deportation, if deportation is ordered, or on
Form EOIR-6, Summary Order of Voluntary Departure, if voluntary
departure is granted with an alternate order of deportation.
(c) Order of the immigration judge. The order of the immigration
judge shall direct the respondent's deportation, or the termination of
the proceedings, or such other disposition of the case as may be
appropriate. When deportation is ordered, the immigration judge shall
specify the country, or countries in the alternate, to which
respondent's deportation shall be directed. The immigration judge is
authorized to issue orders in the alternative or in combination as he
or she may deem necessary.
Sec. 240.51 Notice of decision.
(a) Written decision. A written decision shall be served upon the
respondent and the Service counsel, together with the notice referred
to in Sec. 3.3 of this chapter. Service by mail is complete upon
mailing.
(b) Oral decision. An oral decision shall be stated by the
immigration judge in the presence of the respondent and the trail
attorney, if any, at the conclusion of the hearing. Unless appeal from
the decision is waived, the respondent shall be furnished with Form
EOIR-26, Notice of Appeal, and advised of the provisions of
Sec. 240.53. A printed copy of the oral decision shall be furnished at
the request of the respondent or the Service counsel.
(c) Summary decision. When the immigration judge renders a summary
decision as provided in Sec. 240.51(b), he or she shall serve a copy
thereof upon the respondent at the conclusion of the hearing. Unless
appeal from the decision is waived, the respondent shall be furnished
with Form EOIR-26, Notice of Appeal, and advised of the provisions of
Sec. 240.54.
Sec. 240.52 Finality of order.
The decision of the immigration judge shall become final in
accordance with Sec. 3.39 of this chapter.
Sec. 240.53 Appeals.
(a) Pursuant to 8 CFR part 3, an appeal shall lie from a decision
of an immigration judge to the Board, except that no appeal shall lie
from an order of deportation entered in absentia. The procedures
regarding the filing of a Form EOIR-26, Notice of Appeal, fees, and
briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this chapter. An
appeal shall be filed within 30 calendar days after the mailing of a
written decision, the stating of an oral decision, or the service of a
summary decision. The filing date is defined as the date of receipt of
the Notice of Appeal by the Board. The reasons for the appeal shall be
stated in the Form EOIR-26, Notice of Appeal, in accordance with the
provisions of Sec. 3.3(b) of this chapter. Failure to do so may
constitute a ground for dismissal of the appeal by the Board pursuant
to Sec. 3.1(d)(1-a) of this chapter.
(b) Prohibited appeals; legalization or applications. An alien
respondent defined in Sec. 245a.2(c)(6) or (7) of this chapter who
fails to file an application for adjustment of status to that of a
temporary resident within the prescribed period(s), and who is
thereafter found to be deportable by decision of an immigration judge,
shall not be permitted to appeal the finding of deportability based
solely on refusal by the immigration judge to entertain such an
application in deportation proceedings.
Sec. 240.54 [Reserved]
Subpart F--Suspension of Deportation and Voluntary Departure (for
proceedings commenced prior to April 1, 1997)
Sec. 240.55 Proceedings commenced prior to April 1, 1997.
Subpart F of 8 CFR part 240 applies to deportation proceedings
commenced prior to April 1, 1997. A deportation proceeding is commenced
by the filing of Form I-221 (Order to Show Cause) with the Immigration
Court, and an alien is considered to be in deportation proceedings only
upon such filing, except in the case of an alien admitted to the United
States under the provisions of section 217 of the Act. All references
to the Act contained in this subpart are references to the Act in
effect prior to April 1, 1997.
Sec. 240.56 Application.
Notwithstanding any other provision of this chapter, an alien who
is deportable because of a conviction on or after November 18, 1988,
for an aggravated felony as defined in section 101(a)(43) of the Act,
shall not be eligible for voluntary departure as prescribed in 8 CFR
part 240 and section 244 of the Act. Pursuant to subpart F of this part
and section 244 of the Act, an immigration judge may authorize the
suspension of an alien's deportation; or, if the alien establishes that
he or she is willing and has the immediate means with which to depart
promptly from the United States, an immigration judge may authorize the
alien to depart voluntarily from the United States in lieu of
deportation within such time as may be specified by the immigration
judge when first authorizing voluntary departure, and under such
conditions as the district director shall direct. An application for
suspension of deportation shall be made on Form EOIR-40.
Sec. 240.57 Extension of time to depart.
Authority to reinstate or extend the time within which to depart
voluntarily specified initially by an immigration judge or the Board is
within the sole jurisdiction of the district director, except that an
immigration judge or the Board may reinstate voluntary departure in a
deportation proceeding that has been reopened for a purpose other than
solely making an application for voluntary departure. A request by an
alien for reinstatement or an extension of time within which to depart
voluntarily shall be filed with the district director having
jurisdiction over the alien's place of residence. Written notice of the
district director's decision
[[Page 10378]]
shall be served upon the alien and no appeal may be taken therefrom.
Subpart G--Civil Penalties for Failure to Depart [Reserved]
105. Part 241 is revised to read as follows:
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
Subpart A--Post-hearing Detention and Removal
Sec.
241.1 Final order of removal.
241.2 Warrant of removal.
241.3 Detention of aliens during removal period.
241.4 Continued detention beyond the removal period.
241.5 Conditions of release after removal period.
241.6 Administrative stay of removal.
241.7 Self-removal.
241.8 Reinstatement of removal orders.
241.9 Notice to transportation line of alien's removal.
241.10 Special care and attention of removable aliens.
241.11 Detention and removal of stowaways.
241.12 Nonapplication of costs of detention and maintenance.
241.13--241.19 [Reserved]
Subpart B--Deportation of Excluded Aliens (for hearings commenced prior
to April 1, 1997)
241.20 Proceedings commenced prior to April 1, 1997.
241.21 Stay of deportation of excluded alien.
241.22 Notice to surrender for deportation.
241.23 Cost of maintenance not assessed.
241.24 Notice to transportation line of alien's exclusion.
241.25 Deportation.
241.26--241.29 [Reserved]
Subpart C--Deportation of Aliens in the United States (for hearings
commenced prior to April 1, 1997)
241.30 Proceedings commenced prior to April 1, 1997.
241.31 Final order of deportation.
241.32 Warrant of deportation.
241.33 Expulsion.
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
Subpart A--Post-hearing Detention and Removal
Sec. 241.1 Final order of removal.
An order of removal made by the immigration judge at the conclusion
of proceedings under section 240 of the Act shall become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal;
(e) If an immigration judge orders an alien removed in the alien's
absence, immediately upon entry of such order; or
(f) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of the
voluntary departure period except where the respondent has filed a
timely appeal with the Board. In such a case, the order shall become
final upon an order of removal by the Board or the Attorney General, or
upon overstay of any voluntary departure period granted or reinstated
by the Board or the Attorney General.
Sec. 241.2 Warrant of removal.
(a) Issuance of a warrant of removal. A Form I-205, Warrant of
Removal, based upon the final administrative removal order in the
alien's case shall be issued by a district director. The district
director shall exercise the authority contained in section 241 of the
Act to determine at whose expense the alien shall be removed and
whether his or her mental or physical condition requires personal care
and attention en route to his or her destination.
(b) Execution of the warrant of removal. Any officer authorized by
Sec. 287.5(e) of this chapter to execute administrative warrants of
arrest may execute a warrant of removal.
Sec. 241.3 Detention of aliens during removal period.
(a) Assumption of custody. Once the removal period defined in
section 241(a)(1) of the Act begins, an alien in the United States will
be taken into custody pursuant to the warrant of removal.
(b) Cancellation of bond. Any bond previously posted will be
canceled unless it has been breached or is subject to being breached.
(c) Judicial stays. The filing of (or intention to file) a petition
or action in a Federal court seeking review of the issuance or
execution of an order of removal shall not delay execution of the
Warrant of Removal except upon an affirmative order of the court.
Sec. 241.4 Continued detention beyond the removal period.
(a) Continuation of custody for inadmissible or criminal aliens.
The district director may continue in custody any alien inadmissible
under section 212(a) of the Act or removable under section
237(a)(1)(C), 237(a)(2), or 237(a)(4) of the Act, or who presents a
significant risk of noncompliance with the order of removal, beyond the
removal period, as necessary, until removal from the United States. If
such an alien demonstrates by clear and convincing evidence that the
release would not pose a danger to the community or a significant
flight risk, the district director may, in the exercise of discretion,
order the alien released from custody on such conditions as the
district director may prescribe, including bond in an amount sufficient
to ensure the alien's appearance for removal. The district may
consider, but is not limited to considering, the following factors:
(1) The nature and seriousness of the alien's criminal convictions;
(2) Other criminal history;
(3) Sentence(s) imposed and time actually served;
(4) History of failures to appear for court (defaults);
(5) Probation history;
(6) Disciplinary problems while incarcerated;
(7) Evidence of rehabilitative effort or recidivism;
(8) Equities in the United States; and
(9) Prior immigration violations and history.
(b) Continuation of custody for other aliens. Any alien removable
under any section of the Act other than section 212(a), 237(a)(1)(C),
237(a)(2), or 237(a)(4) may be detained beyond the removal period, in
the discretion of the district director, unless the alien demonstrates
to the satisfaction of the district director that he or she is likely
to comply with the removal order and is not a risk to the community.
Sec. 241.5 Conditions of release after removal period.
(a) Order of supervision. An alien released pursuant to Sec. 241.4
shall be released pursuant to an order of supervision. A district
director, acting district director, deputy district director, assistant
district director for investigations, assistant district director for
detention and deportation, or officer in charge may issue an order of
supervision on Form I-220B. The order shall specify conditions of
supervision including, but not limited to, the following:
(1) A requirement that the alien report to a specified officer
periodically and provide relevant information under oath as directed;
(2) A requirement that the alien continue efforts to obtain a
travel document and assist the Service in obtaining a travel document;
[[Page 10379]]
(3) A requirement that the alien report as directed for a mental or
physical examination or examinations as directed by the Service;
(4) A requirement that the alien obtain advance approval of travel
beyond previously specified times and distances; and
(5) A requirement that the alien provide the Service with written
notice of any change of address on Form AR-11 within ten days of the
change.
(b) Posting of bond. An officer authorized to issue an order of
supervision may require the posting of a bond in an amount determined
by the officer to be sufficient to ensure compliance with the
conditions of the order, including surrender for removal.
(c) Employment authorization. An officer authorized to issue an
order of supervision may, in his or her discretion, grant employment
authorization to an alien released under an order of supervision if the
officer specifically finds that:
(1) The alien cannot be removed because no country will accept the
alien; or
(2) The removal of the alien is impracticable or contrary to public
interest.
Sec. 241.6 Administrative stay of removal.
Any request of an alien under a final order of deportation or
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction
over the place where the alien is at the time of filing. The district
director, in his or her discretion and in consideration of factors such
as are listed in Sec. 212.5 of this chapter and section 241(c) of the
Act, may grant a stay of removal or deportation for such time and under
such conditions as he or she may deem appropriate. Neither the request
nor the failure to receive notice of disposition of the request shall
delay removal or relieve the alien from strict compliance with any
outstanding notice to surrender for deportation or removal. Denial by
the district director of a request for a stay is not appealable, but
such denial shall not preclude an immigration judge or the Board from
granting a stay in connection with a motion to reopen or a motion to
reconsider as provided in 8 CFR part 3. The Service shall take all
reasonable steps to comply with a stay granted by an immigration judge
or the Board. However, such a stay shall cease to have effect if
granted (or communicated) after the alien has been placed aboard an
aircraft or other conveyance for removal and the normal boarding has
been completed.
Sec. 241.7 Self-removal.
A district director may permit an alien ordered removed (including
an alien ordered excluded or deported in proceedings prior to April 1,
1997) to depart at his or her own expense to a destination of his or
her own choice. Any alien who has departed from the United States while
an order of deportation or removal is outstanding shall be considered
to have been deported, excluded and deported, or removed, except that
an alien who departed before the expiration of the voluntary departure
period granted in connection with an alternate order of deportation or
removal shall not be considered to have been so deported or removed.
Sec. 241.8 Reinstatement of removal orders.
(a) Applicability. An alien who illegally reenters the United
States after having been removed, or having departed voluntarily, while
under an order of exclusion, deportation, or removal shall be removed
from the United States by reinstating the prior order. The alien has no
right to a hearing before an immigration judge in such circumstances.
In establishing whether an alien is subject to this section, the
immigration officer shall determine the following:
(1) Whether the alien has been subject to a prior order of removal.
The immigration officer must obtain the prior order of exclusion,
deportation, or removal relating to the alien.
(2) The identity of the alien, i.e., whether the alien is in fact
an alien who was previously removed, or who departed voluntarily while
under an order of exclusion, deportation, or removal. In disputed
cases, verification of identity shall be accomplished by a comparison
of fingerprints between those of the previously excluded, deported, or
removed alien contained in Service records and those of the subject
alien. In the absence of fingerprints in a disputed case the alien
shall not be removed pursuant to this paragraph.
(3) Whether the alien unlawfully reentered the United States. In
making this determination, the officer shall consider all relevant
evidence, including statements made by the alien and any evidence in
the alien's possession. The immigration officer shall attempt to verify
an alien's claim, if any, that he or she was lawfully admitted, which
shall include a check of Service data systems available to the officer.
(b) Notice. If an officer determines that an alien is subject to
removal under this section, he or she shall provide the alien with
written notice of his or her determination. The officer shall advise
the alien that he or she may make a written or oral statement
contesting the determination. If the alien wishes to make such a
statement, the officer shall allow the alien to do so and shall
consider whether the alien's statement warrants reconsideration of the
determination.
(c) Order. If the requirements of paragraph (a) of this section are
met, the alien shall be removed under the previous order of exclusion,
deportation, or removal in accordance with section 241(a)(5) of the
Act.
(d) Exception for withholding of removal. If an alien whose prior
order of removal has been reinstated under this section expresses a
fear of returning to the country designated in that order, the alien
shall be immediately referred to an asylum officer to determine whether
the alien's removal to that country must be withheld under section
241(b)(3) of the Act. The alien's claim will be granted or denied by an
asylum officer in accordance with Sec. 208.16 of this chapter. If the
alien has previously had a claim to withholding of deportation or
removal denied, then that decision shall prevail unless the alien can
establish the existence of changed circumstances that materially affect
the alien's eligibility for withholding. The alien's case shall not be
referred to an immigration judge, and there is no appeal from the
decision of the asylum officer. If the alien is found to merit
withholding of removal, the Service shall not enforce the reinstated
order.
(e) Execution of reinstated order. Execution of the reinstated
order of removal and detention of the alien shall be administered in
accordance with this part.
Sec. 241.9 Notice to transportation line of alien's removal.
(a) An alien who has been ordered removed shall, immediately or as
promptly as the circumstances permit, be offered for removal to the
owner, agent, master, commanding officer, person in charge, purser, or
consignee of the vessel or aircraft on which the alien is to be
removed, as determined by the district director, with a written notice
specifying the cause of inadmissibility or deportability, the class of
travel in which such alien arrived and is to be removed, and with the
return of any documentation that will assist in effecting his or her
removal. If special care and attention are required, the provisions of
Sec. 241.10 shall apply.
(b) Failure of the carrier to accept for removal an alien who has
been ordered removed shall result in the carrier being assessed any
costs incurred by the
[[Page 10380]]
Service for detention after the carrier's failure to accept the alien
for removal, including the cost of any transportation as required under
section 241(e) of the Act. The User Fee Account shall not be assessed
for expenses incurred because of the carrier's violation of the
provisions of section 241 of the Act and this paragraph. The Service
will, at the carrier's option, retain custody of the alien for an
additional 7 days beyond the date of the removal order. If, after the
third day of this additional 7-day period, the carrier has not made all
the necessary transportation arrangements for the alien to be returned
to his or her point of embarkation by the end of the additional 7-day
period, the Service will make the arrangements and bill the carrier for
its costs.
Sec. 241.10 Special care and attention of removable aliens.
When, in accordance with section 241(c)(3) of the Act, a
transportation line is responsible for the expenses of an inadmissible
or deportable alien's removal, and the alien requires special care and
attention, the alien shall be delivered to the owner, agent, master,
commanding officer, person in charge, purser, or consignee of the
vessel or aircraft on which the alien will be removed, who shall be
given Forms I-287, I-287A, and I-287B. The reverse of Form I-287A shall
be signed by the officer of the vessel or aircraft to whom the alien
has been delivered and immediately returned to the immigration officer
effecting delivery. Form I-287B shall be retained by the receiving
officer and subsequently filled out by the agents or persons therein
designated and returned by mail to the district director named on the
form. The transportation line shall at its own expense forward the
alien from the foreign port of disembarkation to the final destination
specified on Form I-287. The special care and attention shall be
continued to such final destination, except when the foreign public
officers decline to allow such attendant to proceed and they take
charge of the alien, in which case this fact shall be recorded by the
transportation line on the reverse of Form I-287B. If the
transportation line fails, refuses, or neglects to provide the
necessary special care and attention or comply with the directions of
Form I-287, the district director shall thereafter and without notice
employ suitable persons, at the expense of the transportation line, and
effect such removal.
Sec. 241.11 Detention and removal of stowaways.
(a) Presentation of stowaways. The owner, agent, master, commanding
officer, charterer, or consignee of a vessel or aircraft (referred to
in this section as the carrier) bringing any alien stowaway to the
United States is required to detain the stowaway on board the vessel or
aircraft, at the expense of the owner of the vessel or aircraft, until
completion of the inspection of the alien by an immigration officer. If
detention on board the vessel or aircraft pending inspection is not
possible, the carrier shall advise the Service of this fact without
delay, and the Service may authorize that the carrier detain the
stowaway at another designated location, at the expense of the owner,
until the immigration officer arrives. No notice to detain the alien
shall be required. Failure to detain an alien stowaway pending
inspection shall result in a civil penalty under section 243(c)(1)(A)
of the Act. The owner, agent, master, commanding officer, charterer, or
consignee of a vessel or aircraft must present the stowaway for
inspection, along with any documents or evidence of identity or
nationality in the possession of the alien or obtained by the carrier
relating to the alien stowaway, and must provide any available
information concerning the alien's boarding or apprehension.
(b) Removal of stowaways from vessel or aircraft for medical
treatment. The district director may parole an alien stowaway into the
United States for medical treatment, but the costs of detention and
treatment of the alien stowaway shall be at the expense of the owner of
the vessel or aircraft, and such removal of the stowaway from the
vessel or aircraft does not relieve the carrier of the requirement to
remove the stowaway from the United States once such medical treatment
has been completed.
(c) Repatriation of stowaways--(1) Requirements of carrier.
Following inspection, an immigration officer may order the owner,
agent, master, commanding officer, charterer, or consignee of a vessel
or aircraft bringing any alien stowaway to the United States to remove
the stowaway on the vessel or aircraft of arrival, unless it is
impracticable to do so or other factors exist which would preclude
removal on the same vessel or aircraft. Such factors may include, but
are not limited to, sanitation, health, and safety concerns for the
crew and/or stowaway, whether the stowaway is a female or a juvenile,
loss of insurance coverage on account of the stowaway remaining aboard,
need for repairs to the vessel, and other similar circumstances. If the
owner, agent, master, commanding officer, charterer, or consignee
requests that he or she be allowed to remove the stowaway by other
means, the Service shall favorably consider any such request, provided
the carrier has obtained, or will obtain in a timely manner, any
necessary travel documents and has made or will make all transportation
arrangements. The owner, agent, master, commanding officer, charterer,
or consignee shall transport the stowaway or arrange for secure escort
of the stowaway to the vessel or aircraft of departure to ensure that
the stowaway departs the United States. All expenses relating to
removal shall be borne by the owner. Other than requiring compliance
with the detention and removal requirements contained in section
241(d)(2) of the Act, the Service shall not impose additional
conditions on the carrier regarding security arrangements. Failure to
comply with an order to remove an alien stowaway shall result in a
civil penalty under section 243(c)(1)(A) of the Act.
(2) Detention of stowaways ordered removed. If detention of the
stowaway is required pending removal on other than the vessel or
aircraft of arrival, or if the stowaway is to be removed on the vessel
or aircraft of arrival but departure of the vessel or aircraft is not
imminent and circumstances preclude keeping the stowaway on board the
vessel or aircraft, the Service shall take the stowaway into Service
custody. The owner is responsible for all costs of maintaining and
detaining the stowaway pending removal, including costs for stowaways
seeking asylum as described in paragraph (d) of this section. Such
costs will be limited to those normally incurred in the detention of an
alien by the Service, including, but not limited to, housing, food,
transportation, medical expenses, and other reasonable costs incident
to the detention of the stowaway. The Service may require the posting
of a bond or other surety to ensure payment of costs of detention.
(d) Stowaways claiming asylum--(1) Referral for credible fear
determination. A stowaway who indicates an intention to apply for
asylum or a fear of persecution shall be removed from the vessel or
aircraft of arrival in accordance with Sec. 208.5(b) of this chapter.
The immigration officer shall refer the alien to an asylum officer for
a determination of credible fear in accordance with section
235(b)(1)(B) of the Act and Sec. 208.30 of this chapter. The stowaway
shall be detained in the custody of the Service pending the credible
fear
[[Page 10381]]
determination and any review thereof. Parole of such alien, in
accordance with section 212(d)(5) of the Act, may be permitted only
when the Attorney General determines, in the exercise of discretion,
that parole is required to meet a medical emergency or is necessary for
a legitimate law enforcement objective. A stowaway who has established
a credible fear of persecution in accordance with Sec. 208.30 of this
chapter may be detained or paroled pursuant to Sec. 212.5 of this
chapter during any consideration of the asylum application. In
determining whether to detain or parole the alien, the Service shall
consider the likelihood that the alien will abscond or pose a security
risk.
(2) Costs of detention of asylum-seeking stowaways. The owner of
the vessel or aircraft that brought the stowaway to the United States
shall reimburse the Service for the costs of maintaining and detaining
the stowaway pending a determination of credible fear under section
235(b)(1)(B) of the Act, up to a maximum period of 72 hours. The owner
is also responsible for the costs of maintaining and detaining the
stowaway during the period in which the stowaway is pursuing his or her
asylum application, for a maximum period of 15 working days, excluding
Saturdays, Sundays, and holidays. The 15-day period shall begin on the
day following the day in which the alien is determined to have a
credible fear of persecution by the asylum officer, or by the
immigration judge if such review was requested by the alien pursuant to
section 235(b)(1)(B)(iii)(III) of the Act, but not later than 72 hours
after the stowaway was initially presented to the Service for
inspection. Following the determination of credible fear, if the
stowaway's application for asylum is not adjudicated within 15 working
days, the Service shall pay the costs of detention beyond this time
period. If the stowaway is determined not to have a credible fear of
persecution, or if the stowaway's application for asylum is denied,
including any appeals, the carrier shall be notified and shall arrange
for repatriation of the stowaway at the expense of the owner of the
vessel or aircraft on which the stowaway arrived.
Sec. 241.12 Nonapplication of costs of detention and maintenance.
The owner of a vessel or aircraft bringing an alien to the United
States who claims to be exempt from payment of the costs of detention
and maintenance of the alien pursuant to section 241(c)(3)(B) of the
Act shall establish to the satisfaction of the district director in
charge of the port of arrival that such costs should not be applied.
The district director shall afford the owner a reasonable time within
which to submit affidavits and briefs to support the claim. There is no
appeal from the decision of the district director.
Secs. 241.13--241.19 [Reserved]
Subpart B--Deportation of Excluded Aliens (for hearings commenced
prior to April 1, 1997)
Sec. 241.20 Proceedings commenced prior to April 1, 1997.
Subpart B of 8 CFR part 241 applies to exclusion proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart are references to the Act in effect prior to April 1,
1997.
Sec. 241.21 Stay of deportation of excluded alien.
The district director in charge of the port of arrival may stay the
immediate deportation of an excluded alien pursuant to sections 237 (a)
and (d) of the Act under such conditions as he or she may prescribe.
Sec. 241.22 Notice to surrender for deportation.
An alien who has been finally excluded pursuant to 8 CFR part 240,
subpart D may at any time surrender himself or herself to the custody
of the Service and shall surrender to such custody upon notice in
writing of the time and place for his or her surrender. The Service may
take the alien into custody at any time. An alien taken into custody
either upon notice to surrender or by arrest shall not be deported less
than 72 hours thereafter without his or her consent thereto filed in
writing with the district director in charge of the place of his or her
detention. An alien in foreign contiguous territory shall be informed
that he or she may remain there in lieu of surrendering to the Service,
but that he or she will be deemed to have acknowledged the execution of
the order of exclusion and deportation in his or her case upon his or
her failure to surrender at the time and place prescribed.
Sec. 241.23 Cost of maintenance not assessed.
A claim pursuant to section 237(a)(1) of the Act shall be
established to the satisfaction of the district director in charge of
the port of arrival, from whose adverse decision no appeal shall lie.
The district director shall afford the line a reasonable time within
which to submit affidavits and briefs to support its claim.
Sec. 241.24 Notice to transportation line of alien's exclusion.
(a) An excluded alien shall, immediately or as promptly as the
circumstances permit, be offered for deportation to the master,
commanding officer, purser, person in charge, agent, owner, or
consignee of the vessel or aircraft on which the alien is to be
deported, as determined by the district director, with a written notice
specifying the cause of exclusion, the class of travel in which such
alien arrived and is to be deported, and with the return of any
documentation that will assist in effecting his or her deportation. If
special care and attention are required, the provisions of Sec. 241.10
shall apply.
(b) Failure of the carrier to accept for removal an alien who has
been ordered excluded and deported shall result in the carrier being
assessed any costs incurred by the Service for detention after the
carrier's failure to accept the alien for removal including the cost of
any transportation. The User Fee Account shall not be assessed for
expenses incurred because of the carrier's violation of the provisions
of section 237 of the Act and this paragraph. The Service will, at the
carrier's option, retain custody of the excluded alien for an
additional 7 days beyond the date of the deportation/exclusion order.
If, after the third day of this additional 7-day period, the carrier
has not made all the necessary transportation arrangements for the
excluded alien to be returned to his or her point of embarkation by the
end of the additional 7-day period, the Service will make the
arrangements and bill the carrier for its costs.
Sec. 241.25 Deportation.
(a) Definitions of terms. For the purposes of this section, the
following terms mean:
(1) Adjacent island--as defined in section 101(b)(5) of the Act.
(2) Foreign contiguous territory--any country sharing a common
boundary with the United States.
(3) Residence in foreign contiguous territory or adjacent island--
any physical presence, regardless of intent, in a foreign contiguous
territory or an adjacent island if the government of such territory or
island agrees to accept the alien.
(4) Aircraft or vessel--any conveyance and other mode of travel by
which arrival is effected.
(5) Next available flight--the carrier's next regularly scheduled
departure to
[[Page 10382]]
the excluded alien's point of embarkation regardless of seat
availability. If the carrier's next regularly scheduled departure to
the excluded aliens point of embarkation is full, the carrier has the
option of arranging for return transportation on other carriers which
service the excluded aliens point of embarkation.
(b) Place to which deported. Any alien (other than an alien
crewmember or an alien who boarded an aircraft or vessel in foreign
contiguous territory or an adjacent island) who is ordered excluded
shall be deported to the country where the alien boarded the vessel or
aircraft on which the alien arrived in the United States. If that
country refuses to accept the alien, the alien shall be deported to:
(1) The country of which the alien is a subject, citizen, or
national;
(2) The country where the alien was born;
(3) The country where the alien has a residence; or
(4) Any country willing to accept the alien.
(c) Contiguous territory and adjacent islands. Any alien ordered
excluded who boarded an aircraft or vessel in foreign contiguous
territory or in any adjacent island shall be deported to such foreign
contiguous territory or adjacent island if the alien is a native,
citizen, subject, or national of such foreign contiguous territory or
adjacent island, or if the alien has a residence in such foreign
contiguous territory or adjacent island. Otherwise, the alien shall be
deported, in the first instance, to the country in which is located the
port at which the alien embarked for such foreign contiguous territory
or adjacent island.
(d) Land border pedestrian arrivals. Any alien ordered excluded who
arrived at a land border on foot shall be deported in the same manner
as if the alien had boarded a vessel or aircraft in foreign contiguous
territory.
Secs. 241.26-241.29 [Reserved]
Subpart C--Deportation of Aliens in the United States (for hearings
commenced prior to April 1, 1997)
Sec. 241.30 Proceedings commenced prior to April 1, 1997.
Subpart C of 8 CFR part 241 applies to deportation proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart are references to the Act in effect prior to April 1,
1997.
Sec. 241.31 Final order of deportation.
Except as otherwise required by section 242(c) of the Act for the
specific purposes of that section, an order of deportation, including
an alternate order of deportation coupled with an order of voluntary
departure, made by the immigration judge in proceedings under 8 CFR
part 240 shall become final upon dismissal of an appeal by the Board of
Immigration Appeals, upon waiver of appeal, or upon expiration of the
time allotted for an appeal when no appeal is taken; or, if such an
order is issued by the Board or approved by the Board upon
certification, it shall be final as of the date of the Board's
decision.
Sec. 241.32 Warrant of deportation.
A Form I-205, Warrant of Deportation, based upon the final
administrative order of deportation in the alien's case shall be issued
by a district director. The district director shall exercise the
authority contained in section 243 of the Act to determine at whose
expense the alien shall be deported and whether his or her mental or
physical condition requires personal care and attention en route to his
or her destination.
Sec. 241.33 Expulsion.
(a) Execution of order. Except in the exercise of discretion by the
district director, and for such reasons as are set forth in
Sec. 212.5(a) of this chapter, once an order of deportation becomes
final, an alien shall be taken into custody and the order shall be
executed. For the purposes of this part, an order of deportation is
final and subject to execution upon the date when any of the following
occurs:
(1) A grant of voluntary departure expires;
(2) An immigration judge enters an order of deportation without
granting voluntary departure or other relief, and the alien respondent
waives his or her right to appeal;
(3) The Board of Immigration Appeals enters an order of deportation
on appeal, without granting voluntary departure or other relief; or
(4) A Federal district or appellate court affirms an administrative
order of deportation in a petition for review or habeas corpus action.
(b) Service of decision. In the case of an order entered by any of
the authorities enumerated above, the order shall be executed no sooner
than 72 hours after service of the decision, regardless of whether the
alien is in Service custody, provided that such period may be waived on
the knowing and voluntary request of the alien. Nothing in this
paragraph shall be construed, however, to preclude assumption of
custody by the Service at the time of issuance of the final order.
PART 242--[REMOVED AND RESERVED]
106. Part 242 is removed and reserved.
PART 243--[REMOVED AND RESERVED]
107. Part 243 is removed and reserved.
PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
108. The heading for part 244 is revised as set forth above.
109. The authority citation for part 244 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.
Secs. 244.1 and 244.2 [Removed]
110. Sections 244.1 and 244.2 are removed.
Secs. 244.3 through 244.22 [Redesignated as Secs. 244.1 through
244.20]
111. Newly designated Secs. 244.3 through 244.22 are further
redesignated as Secs. 244.1 through 244.20, respectively.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
112. The authority citation for part 245 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.
113. Section 245.1 is amended by:
a. Removing the word ``and'' at the end of the paragraph (c)(3);
b. Removing the ``.'' at the end of paragraphs (c)(4) through
(c)(7), and replacing it with a ``;'';
c. Redesignating paragraph (c)(8) as paragraph (c)(9);
d. Adding a new paragraph (c)(8);
e. Revising newly redesignated paragraph (c)(9) introductory text;
f. Revising newly redesignated paragraphs (c)(9)(i) through
(c)(9)(iii); and by
g. Revising paragraph (f), to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(c) * * *
(8) Any arriving alien who is in removal proceedings pursuant to
section 235(b)(1) or section 240 of the Act; and
(9) Any alien who seeks to adjust status based upon a marriage
which occurred on or after November 10, 1986, and while the alien was
in exclusion, deportation, or removal proceedings, or judicial
proceedings relating thereto.
(i) Commencement of proceedings. The period during which the alien
is in
[[Page 10383]]
deportation, exclusion, or removal proceedings or judicial proceedings
relating thereto, commences:
(A) With the issuance of the Form I-221, Order to Show Cause and
Notice of Hearing prior to June 20, 1991;
(B) With the filing of a Form I-221, Order to Show Cause and Notice
of Hearing, issued on or after June 20, 1991, with the Immigration
Court;
(C) With the issuance of Form I-122, Notice to Applicant for
Admission Detained for Hearing Before Immigration Judge, prior to April
1, 1997,
(D) With the filing of a Form I-862, Notice to Appear, with the
Immigration Court, or
(E) With the issuance and service of Form I-860, Notice and Order
of Expedited Removal.
(ii) Termination of proceedings. The period during which the alien
is in exclusion, deportation, or removal proceedings, or judicial
proceedings relating thereto, terminates:
(A) When the alien departs from the United States while an order of
exclusion, deportation, or removal is outstanding or before the
expiration of the voluntary departure time granted in connection with
an alternate order of deportation or removal;
(B) When the alien is found not to be inadmissible or deportable
from the United States;
(C) When the Form I-122, I-221, I-860, or I-862 is canceled;
(D) When proceedings are terminated by the immigration judge or the
Board of Immigration Appeals; or
(E) When a petition for review or an action for habeas corpus is
granted by a Federal court on judicial review.
(iii) Exemptions. This prohibition shall no longer apply if:
(A) The alien is found not to be inadmissible or deportable from
the United States;
(B) Form I-122, I-221, I-860, or I-862, is canceled;
(C) Proceedings are terminated by the immigration judge or the
Board of Immigration Appeals;
(D) A petition for review or an action for habeas corpus is granted
by a Federal court on judicial review;
(E) The alien has resided outside the United States for 2 or more
years following the marriage; or
(F) The alien establishes the marriage is bona fide by providing
clear and convincing evidence that the marriage was entered into in
good faith and in accordance with the laws of the place where the
marriage took place, was not entered into for the purpose of procuring
the alien's entry as an immigrant, and no fee or other consideration
was given (other than to an attorney for assistance in preparation of a
lawful petition) for the filing of a petition.
* * * * *
(f) Concurrent applications to overcome grounds of inadmissibility.
Except as provided in 8 CFR parts 235 and 249, an application under
this part shall be the sole method of requesting the exercise of
discretion under sections 212(g), (h), (i), and (k) of the Act, as they
relate to the inadmissibility of an alien in the United States. No fee
is required for filing an application to overcome the grounds of
inadmissibility of the Act if filed concurrently with an application
for adjustment of status under the provisions of the Act of October 28,
1977, and of this part.
* * * * *
114. Section 245.2 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraph (a)(4)(ii);
c. Revising paragraph (a)(5)(ii) and (iii); and by
d. Revising paragraph (c), to read as follows:
Sec. 245.2 Application.
(a) * * * (1) Jurisdiction. An alien who believes he or she meets
the eligibility requirements of section 245 of the Act or section 1 of
the Act of November 2, 1966, and Sec. 245.1 shall apply to the director
having jurisdiction over his or her place of residence unless otherwise
instructed in 8 CFR part 245, or by the instruction on the application
form. After an alien, other than an arriving alien, is in deportation
or removal proceedings, his or her application for adjustment of status
under section 245 of the Act or section 1 of the Act of November 2,
1966 shall be made and considered only in those proceedings. An
arriving alien, other than an alien in removal proceedings, who
believes he or she meets the eligibility requirements of section 245 of
the Act or section 1 of the Act of November 2, 1966, and Sec. 245.1
shall apply to the director having jurisdiction over his or her place
of arrival. An adjustment application by an alien paroled under section
212(d)(5) of the Act, which has been denied by the director, may be
renewed in removal proceedings under 8 CFR part 240 only if:
(i) The denied application must have been properly filed subsequent
to the applicant's earlier inspection and admission to the United
States; and
(ii) The applicant's later absence from and return to the United
States was under the terms of an advance parole authorization on Form
I-512 granted to permit the applicant's absence and return to pursue
the previously filed adjustment application.
* * * * *
(4) * * *
(ii) Under section 245 of the Act. The departure from the United
States of an applicant who is under exclusion, deportation, or removal
proceedings shall be deemed an abandonment of the application
constituting grounds for termination of the proceeding by reason of the
departure. The departure of an applicant who is not under exclusion,
deportation, or removal proceedings shall be deemed an abandonment of
his or her application constituting grounds for termination, unless the
applicant was previously granted advance parole by the Service for such
absence, and was inspected upon returning to the United States. If the
application of an individual granted advance parole is subsequently
denied, the applicant will be treated as an applicant for admission,
and subject to the provisions of sections 212 and 235 of the Act.
* * * * *
(5) * * *
(ii) Under section 245 of the Act. If the application is approved,
the applicant's permanent residence shall be recorded as of the date of
the order approving the adjustment of status. An application for
adjustment of status, as a preference alien, shall not be approved
until an immigrant visa number has been allocated by the Department of
State, except when the applicant has established eligibility for the
benefits of Public Law 101-238. No appeal lies from the denial of an
application by the director, but the applicant, if not an arriving
alien, retains the right to renew his or her application in proceedings
under 8 CFR part 240. Also, an applicant who is a parolee and meets the
two conditions described in Sec. 245.2(a)(1) may renew a denied
application in proceedings under 8 CFR part 240 to determine
admissibility. At the time of renewal of the application, an applicant
does not need to meet the statutory requirement of section 245(c) of
the Act, or Sec. 245.1(g), if, in fact, those requirements were met at
the time the renewed application was initially filed with the director.
Nothing in this section shall entitle an alien to proceedings under
section 240 of the Act who is not otherwise so entitled.
(iii) Under the Act of November 2, 1966. If the application is
approved, the applicant's permanent residence shall be recorded in
accordance with the provisions of section 1. No appeal lies from the
denial of an application by the director, but the applicant, if not an
[[Page 10384]]
arriving alien, retains the right to renew his or her application in
proceedings under 8 CFR part 240. Also, an applicant who is a parolee
and meets the two conditions described in Sec. 245.2(a)(1) may renew a
denied application in proceedings under 8 CFR part 240 to determine
admissibility.
* * * * *
(c) Application under section 214(d) of the Act. An application for
permanent resident status pursuant to section 214(d) of the Act shall
be filed on Form I-485 with the director having jurisdiction over the
applicant's place of residence. A separate application shall be filed
by each applicant. If the application is approved, the director shall
record the lawful admission of the applicant as of the date of
approval. The applicant shall be notified of the decision and, if the
application is denied, of the reasons therefor. No appeal shall lie
from the denial of an application by the director but such denial shall
be without prejudice to the alien's right to renew his or her
application in proceedings under 8 CFR part 240.
115. Section 245.5 is amended by revising the first sentence to
read as follows:
Sec. 245.5 Medical examination.
Pursuant to section 232(b) of the Act, an applicant for adjustment
of status shall be required to have a medical examination by a
designated civil surgeon, whose report setting forth the findings of
the mental and physical condition of the applicant, including
compliance with section 212(a)(1)(A)(ii) of the Act, shall be
incorporated into the record. * * *
116. Section 245.8 is amended by revising paragraph (e), to read as
follows:
Sec. 245.8 Adjustment of status as a special immigrant under section
101(a)(27)(K) of the Act.
* * * * *
(e) Removal provisions of section 237 of the Act. If the Service is
made aware by notification from the appropriate executive department or
by any other means that a section 101(a)(27)(K) special immigrant who
has already been granted permanent residence fails to complete his or
her total active duty service obligation for reasons other than an
honorable discharge, the alien may become subject to the removal
provisions of section 237 of the Act, provided the alien is in one or
more of the classes of deportable aliens specified in section 237 of
the Act. The Service shall obtain a current Form DD-214, Certificate of
Release or Discharge from Active Duty, from the appropriate executive
department for verification of the alien's failure to maintain
eligibility.
* * * * *
117. Section 245.9 is amended by revising paragraphs (d) and (m),
to read as follows:
Sec. 245.9 Adjustment of Status of Certain Nationals of the People's
Republic of China under Public Law 102-404.
* * * * *
(d) Waivers of inadmissibility under section 212(a) of the Act. An
applicant for the benefits of the adjustment of status provisions of
Pub. L. 102-404 is automatically exempted from compliance with the
requirements of sections 212(a)(5) and 212(a)(7)(A) of the Act. A Pub.
L. 102-404 applicant may also apply for one or more waivers of
inadmissibility under section 212(a) of the Act, except for
inadmissibility under section 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B),
212(a)(3)(C) or 212(a)(3)(E) of the Act.
* * * * *
(m) Effect of enactment on family members other than qualified
family members. The adjustment of status benefits and waivers provided
by Pub. L. 102-404 do not apply to a spouse or child who is not a
qualified family member as defined in paragraph (c) of this section.
However, a spouse or child whose relationship to the principal alien
was established prior to the approval of the principal's adjustment of
status application may be accorded the derivative priority date and
preference category of the principal alien, in accordance with the
provisions of section 203(d) of the Act. The spouse or child may use
the priority date and category when it becomes current, in accordance
with the limitations set forth in sections 201 and 202 of the Act.
Persons who are unable to maintain lawful nonimmigrant status in the
United States and are not immediately eligible to apply for adjustment
of status may request voluntary departure pursuant to 8 CFR part 240.
118. Section 245.10 is amended by:
a. Revising paragraphs (a) (3) and (6); and by
b. Revising introductory text in paragraph (b), to read as follows:
Sec. 245.10 Adjustment of status upon payment of additional sum under
Public Law 103-317.
(a) * * *
(3) Is not inadmissible from the United States under any provision
of section 212 of the Act, or all grounds for inadmissibility have been
waived;
* * * * *
(6) Remits the sum specified in section 245(i) of the Act, unless
payment of the sum is waived under section 245(i) of the Act; and
* * * * *
(b) Payment of additional sum. An applicant filing under the
provisions of section 245(i) of the Act must pay the standard
adjustment of status filing fee, as shown on Form I-485 and contained
in Sec. 103.7(b)(1) of this chapter. The applicant must also pay the
additional sum specified in section 245(i) of the Act, unless at the
time the application for adjustment of status is filed, the alien is:
* * * * *
119. Section 245.11 is amended by:
a. Revising paragraph (a)(4)(ii)(B);
b. Revising paragraph (b)(1)(iii);
c. Revising the introductory text in paragraph (c); and by
d. Revising paragraphs (h) and (i), to read as follows:
Sec. 245.11 Adjustment of aliens in S nonimmigrant classification.
(a) * * *
(4) * * *
(ii) * * *
(B) Be admissible to the United States as an immigrant, unless the
ground of inadmissibility has been waived;
* * * * *
(b) * * *
(1) * * *
(iii) The family member is not inadmissible from the United States
as a participant in Nazi persecution or genocide as described in
section 212(a)(3)(E) of the Act;
* * * * *
(c) Waivers of inadmissibility. An alien seeking to adjust status
pursuant to the provisions of section 101(a)(15)(S) of the Act may not
be denied adjustment of status for conduct or a condition that:
* * * * *
(h) Removal under section 237 of the Act. Nothing in this section
shall prevent an alien adjusted pursuant to the terms of these
provisions from being removed for conviction of a crime of moral
turpitude committed within 10 years after being provided lawful
permanent residence under this section or for any other ground under
section 237 of the Act.
(i) Denial of application. In the event the district director
decides to deny an application on Form I-485 and an approved Form I-854
to allow an S nonimmigrant to adjust status, the Assistant Attorney
General, Criminal Division, and the relevant LEA shall be notified in
writing to that effect. The Assistant Attorney General, Criminal
Division, shall concur in or object to
[[Page 10385]]
that decision. Unless the Assistant Attorney General, Criminal
Division, objects within 7 days, he or she shall be deemed to have
concurred in the decision. In the event of an objection by the
Assistant Attorney General, Criminal Division, the matter will be
expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant LEA
have a right of appeal from any decision to deny. A denial of an
adjustment application under this paragraph may not be renewed in
subsequent removal proceedings.
120. Part 246 is revised to read as follows:
PART 246--RESCISSION OF ADJUSTMENT OF STATUS
Sec.
246.1 Notice.
246.2 Allegations admitted; no answer filed; no hearing
requested.
246.3 Allegations contested or denied; hearing requested.
246.4 Immigration judge's authority; withdrawal and
substitution.
246.5 Hearing.
246.6 Decision and order.
246.7 Appeals.
246.8 [Reserved]
246.9 Surrender of Form I-551.
Authority: Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8
CFR part 2.
Sec. 246.1 Notice.
If it appears to a district director that a person residing in his
or her district was not in fact eligible for the adjustment of status
made in his or her case, a proceeding shall be commenced by the
personal service upon such person of a notice of intent to rescind
which shall inform him or her of the allegations upon which it is
intended to rescind the adjustment of his or her status. In such a
proceeding the person shall be known as the respondent. The notice
shall also inform the respondent that he or she may submit, within
thirty days from the date of service of the notice, an answer in
writing under oath setting forth reasons why such rescission shall not
be made, and that he or she may, within such period, request a hearing
before an immigration judge in support of, or in lieu of, his or her
written answer. The respondent shall further be informed that he or she
may have the assistance of or be represented by counsel or
representative of his or her choice qualified under part 292 of this
chapter, at no expense to the Government, in the preparation of his or
her answer or in connection with his or her hearing, and that he or she
may present such evidence in his or her behalf as may be relevant to
the rescission.
Sec. 246.2 Allegations admitted; no answer filed; no hearing
requested.
If the answer admits the allegations in the notice, or if no answer
is filed within the thirty-day period, or if no hearing is requested
within such period, the district director shall rescind the adjustment
of status previously granted, and no appeal shall lie from his
decision.
Sec. 246.3 Allegations contested or denied; hearing requested.
If, within the prescribed time following service of the notice
pursuant to Sec. 246.1, the respondent has filed an answer which
contests or denies any allegation in the notice, or a hearing is
requested, a hearing pursuant to Sec. 246.5 shall be conducted by an
immigration judge, and the requirements contained in Secs. 240.3,
240.4, 240.5, 240.6, 240.7, and 240.9 of this chapter shall be
followed.
Sec. 246.4 Immigration judge's authority; withdrawal and substitution.
In any proceeding conducted under this part, the immigration judge
shall have authority to interrogate, examine, and cross-examine the
respondent and other witnesses, to present and receive evidence, to
determine whether adjustment of status shall be rescinded, to make
decisions thereon, including an appropriate order, and to take any
other action consistent with applicable provisions of law and
regulations as may be appropriate to the disposition of the case.
Nothing contained in this part shall be construed to diminish the
authority conferred on immigration judges by the Act. The immigration
judge assigned to conduct a hearing shall, at any time, withdraw if he
or she deems himself or herself disqualified. If a hearing has begun
but no evidence has been adduced other than the notice and answer, if
any, pursuant to Secs. 246.1 and 246.2, or if an immigration judge
becomes unavailable to complete his or her duties within a reasonable
time, or if at any time the respondent consents to a substitution,
another immigration judge may be assigned to complete the case. The new
immigration judge shall familiarize himself or herself with the record
in the case and shall state for the record that he or she is familiar
with the record in the case.
Sec. 246.5 Hearing.
(a) Service counsel. The Government shall be represented at the
hearing by a Service counsel who shall have authority to present
evidence, and to interrogate, examine, and cross-examine the respondent
and other witnesses. The Service counsel is authorized to appeal from a
decision of the immigration judge pursuant to Sec. 246.7 and to move
for reopening or reconsideration pursuant to Sec. 3.23 of this chapter.
(b) Opening. The immigration judge shall advise the respondent of
the nature of the proceeding and the legal authority under which it is
conducted; advise the respondent of his or her right to representation,
at no expense to the Government, by counsel or representative of his or
her own choice qualified under part 292 of this chapter and require him
or her to state then and there whether he or she desires
representation; advise the respondent that he or she will have a
reasonable opportunity to examine and object to the evidence against
him or her, to present evidence in his or her own behalf, and to cross-
examine witnesses presented by the Government; place the respondent
under oath; read the allegations in the notice to the respondent and
explain them in nontechnical language, and enter the notice and
respondent's answer, if any, as exhibits in the record.
(c) Pleading by respondent. The immigration judge shall require the
respondent to state for the record whether he or she admits or denies
the allegations contained in the notice, or any of them, and whether he
or she concedes that his or her adjustment of status should be
rescinded. If the respondent admits all of the allegations and concedes
that the adjustment of status in his or her case should be rescinded
under the allegations set forth in the notice, and the immigration
judge is satisfied that no issues of law or fact remain, he or she may
determine that rescission as alleged has been established by the
respondent's admissions. The allegations contained in the notice shall
be taken as admitted when the respondent, without reasonable cause,
fails or refuses to attend or remain in attendance at the hearing.
Sec. 246.6 Decision and order.
The decision of the immigration judge may be oral or written. The
formal enumeration of findings is not required. The order shall direct
either that the proceeding be terminated or that the adjustment of
status be rescinded. Service of the decision and finality of the order
of the immigration judge shall be in accordance with, and as stated in
Secs. 240.13 (a) and (b) and 240.14 of this chapter.
[[Page 10386]]
Sec. 246.7 Appeals.
Pursuant to 8 CFR part 3, an appeal shall lie from a decision of an
immigration judge under this part to the Board of Immigration Appeals.
An appeal shall be taken within 30 days after the mailing of a written
decision or the stating of an oral decision. The reasons for the appeal
shall be specifically identified in the Notice of Appeal (Form EOIR
26); failure to do so may constitute a ground for dismissal of the
appeal by the Board.
Sec. 246.8 [Reserved]
Sec. 246.9 Surrender of Form I-551.
A respondent whose status as a permanent resident has been
rescinded in accordance with section 246 of the Act and this part,
shall, upon demand, promptly surrender to the district director having
administrative jurisdiction over the office in which the action under
this part was taken, the Form I-551 issued to him or her at the time of
the grant of permanent resident status.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
121. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.
122. Section 248.1 is amended by revising paragraph (b)(4) to read
as follows:
Sec. 248.1 Eligibility.
* * * * *
(b) * * *
(4) The alien is not the subject of removal proceedings under 8 CFR
part 240.
* * * * *
PART 249--CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT
RESIDENCE
123. The authority citation for part 249 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1259; 8 CFR part 2.
124. Section 249.2 is amended by revising the first sentence in
paragraph (a) and by revising paragraph (b), to read as follows:
Sec. 249.2 Application.
(a) Jurisdiction. An application by an alien, other than an
arriving alien, who has been served with a notice to appear or warrant
of arrest shall be considered only in proceedings under 8 CFR part 240.
* * *
(b) Decision. The applicant shall be notified of the decision and,
if the application is denied, of the reasons therefor. If the
application is granted, a Form I-551, showing that the applicant has
acquired the status of an alien lawfully admitted for permanent
residence, shall not be issued until the applicant surrenders any other
document in his or her possession evidencing compliance with the alien
registration requirements of former or existing law. No appeal shall
lie from the denial of an application by the district director.
However, an alien, other than an arriving alien, may renew the denied
application in proceedings under 8 CFR part 240.
PART 251--ARRIVAL MANIFESTS AND LISTS: SUPPORTING DOCUMENTS
125. The authority citation for part 251 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282, 8 CFR part 2.
126. Section 251.1 is revised to read as follows:
Sec. 251.1 Arrival manifests and lists.
(a) Vessels--(1) General. The master or agent of every vessel
arriving in the United States from a foreign place or an outlying
possession of the United States shall present to the immigration
officer at the port where the immigration inspection is performed a
manifest of all crewmen on board on Form I-418, Passenger List and Crew
List, in accordance with the instructions contained thereon.
(2) Longshore work notations. The master or agent of the vessel
shall indicate in writing immediately below the name of the last alien
listed on the Form I-418 whether or not crewmen aboard the vessel will
be used to perform longshore work at any United States port before the
vessel departs the United States.
(i) If no longshore work will be performed, no further notation
regarding longshore work is required.
(ii) If longshore work will be performed, the master or agent shall
note which exception listed in section 258 of the Act permits the work.
The exceptions are:
(A) The hazardous cargo exception;
(B) The prevailing practice exception in accordance with a port's
collective bargaining agreements;
(C) The prevailing practice exception at a port where there is no
collective bargaining agreement, but for which the vessel files an
attestation;
(D) The prevailing practice exception for automated vessels; and
(E) The reciprocity exception.
(iii) If longshore work will be performed under the hazardous cargo
exception, the vessel must either be a tanker or be transporting dry
bulk cargo that qualifies as hazardous. All tankers qualify for the
hazardous cargo exception, except for a tanker that has been gas-freed
to load non-hazardous dry bulk commodities.
(A) To invoke the exception for tankers, the master or agent shall
note on the manifest that the vessel is a qualifying tanker.
(B) If the vessel is transporting dry bulk hazardous cargo, the
master or agent shall note on the manifest that the vessel's dry bulk
cargo is hazardous and shall show the immigration officer the dangerous
cargo manifest that is signed by the master or an authorized
representative of the owner, and that under 46 CFR 148.02 must be kept
in a conspicuous place near the bridge house.
(iv) If longshore work will be performed under the prevailing
practice exception, the master or agent shall note on the manifest each
port at which longshore work will be performed under this exception.
Additionally, for each port the master or agent shall note either that:
(A) The practice of nonimmigrant crewmen doing longshore work is in
accordance with all collective bargaining agreements covering 30
percent or more of the longshore workers in the port;
(B) The port has no collective bargaining agreement covering 30
percent or more of the longshore workers in the port and an attestation
has been filed with the Secretary of Labor;
(C) An attestation that was previously filed is still valid and the
vessel continues to comply with the conditions stated in that
attestation; or
(D) The longshore work consists of operating an automated, self-
unloading conveyor belt or a vacuum-actuated system.
(v) If longshore work will be performed under the reciprocity
exception, the master or agent shall note on the manifest that the work
will be done under the reciprocity exception, and will note the
nationality of the vessel's registry and the nationality or
nationalities of the holders of a majority of the ownership interest in
the vessel.
(3) Exception for certain Great Lakes vessels. (i) A manifest shall
not be required for a vessel of United States, Canadian, or British
registry engaged solely in traffic on the Great Lakes or the St.
Lawrence River and connecting waterways, herein designated as a Great
Lakes vessel, unless:
[[Page 10387]]
(A) The vessel employs nonimmigrant crewmen who will do longshore
work at a port in the United States; or
(B) The vessel employs crewmen of other than United States,
Canadian, or British citizenship.
(ii) In either situation, the master shall note the manifest in the
manner prescribed in paragraph (a)(2) of this section.
(iii) After submission of a manifest on the first voyage of a
calendar year, a manifest shall not be required on subsequent arrivals
unless a nonimmigrant crewman of other than Canadian or British
citizenship is employed on the vessel who was not aboard and listed on
the last prior manifest, or a change has occurred regarding the
performance of longshore work in the United States by nonimmigrant
crewmen, or a change has occurred in the exception that the master or
agent of the vessel wishes to invoke which was not noted on the last
prior manifest.
(4) The master or agent of a vessel that only bunkers at a United
States port en route to another United States port shall annotate Form
I-418 presented at the onward port to indicate the time, date, and
place of bunkering.
(5) If documentation is required to support an exception, as
described in Sec. 258.2 of this chapter, it must accompany the
manifest.
(b) Aircraft. The captain or agent of every aircraft arriving in
the United States from a foreign place or from an outlying possession
of the United States, except an aircraft arriving in the United States
directly from Canada on a flight originating in that country, shall
present to the immigration officer at the port where the inspection is
performed a manifest on United States Customs Service Form 7507 or on
the International Civil Aviation Organization's General Declaration of
all the alien crewmembers on board, including alien crewmembers who are
returning to the United States after taking an aircraft of the same
line from the United States to a foreign place or alien crewmembers who
are entering the United States as passengers solely for the purpose of
taking an aircraft of the same line from the United States to a foreign
port. The captain or agent of an aircraft that only refuels at the
United States en route to another United States port must annotate the
manifest presented at the onward port to indicate the time, date, and
place of refueling. The surname, given name, and middle initial of each
alien crewman listed also shall be shown on the manifest. In addition,
the captain or agent of the aircraft shall indicate the total number of
United States citizen crewmembers and total number of alien
crewmembers.
(c) Additional documents. The master, captain, or agent shall
prepare as a part of the manifest, when one is required for
presentation to an immigration officer, a completely executed set of
Forms I-95, Conditional Landing Permit, for each nonimmigrant alien
crewman on board, except:
(1) A Canadian or British citizen crewman serving on a vessel
plying solely between Canada and the United States; or
(2) A nonimmigrant crewman who is in possession of an unmutilated
Form I-184, Alien Crewman Landing Permit and Identification Card, or an
unmutilated Form I-95 with space for additional endorsements previously
issued to him or her as a member of the crew of the same vessel or an
aircraft of the same line on his or her last prior arrival in the
United States, following which he or she departed from the United
States as a member of the crew of the same vessel or an aircraft of the
same line.
127. Section 251.2 is revised to read as follows:
Sec. 251.2 Notification of illegal landings.
As soon as discovered, the master or agent of any vessel from which
an alien crewman has illegally landed or deserted in the United States
shall inform the immigration officer in charge of the port where the
illegal landing or desertion occurred, in writing, of the name,
nationality, passport number and, if known, the personal description,
circumstances and time of such illegal landing or desertion of such
alien crewman, and furnish any other information and documents that
might aid in his or her apprehension, including any passport
surrendered pursuant to Sec. 252.1(d) of this chapter. Failure to file
notice of illegal landing or desertion and to furnish any surrendered
passport within 24 hours of the time of such landing or desertion
becomes known shall be regarded as lack of compliance with section
251(d) of the Act.
128. Section 251.3 is revised to read as follows:
Sec. 251.3 Departure manifests and lists for vessels.
(a) Form I-418, Passenger List-Crew List. The master or agent of
every vessel departing from the United States shall submit to the
immigration officer at the port from which such vessel is to depart
directly to some foreign place or outlying possession of the United
States, except when a manifest is not required pursuant to
Sec. 251.1(a), a single Form I-418 completed in accordance with the
instructions on the form. Submission of a Form I-418 that lacks any
required endorsement shall be regarded as lack of compliance with
section 251(c) of the Act.
(b) Exception for certain Great Lakes vessels. The required list
need not be submitted for Canadian or British crewmembers of Great
Lakes vessels described in Sec. 251.1(a)(3).
129. Section 251.4 is revised to read as follows:
Sec. 251.4 Departure manifests and lists for aircraft.
(a) United States Customs Service Form 7507 or International Civil
Aviation Organization's General Declaration. The captain or agent of
every aircraft departing from the United States for a foreign place or
an outlying possession of the United States, except on a flight
departing for and terminating in Canada, shall submit to the
immigration officer at the port from which such aircraft is to depart a
completed United States Customs Service Form 7507 or the International
Civil Aviation Organization's General Declaration. The form shall
contain a list of all alien crewmen on board, including alien crewmen
who arrived in the United States as crewmen on an aircraft of the same
line and who are departing as passengers. The surname, given name, and
middle initial of each such alien crewman listed shall be shown. In
addition, the captain or agent of the aircraft shall indicate the total
number of alien crewmembers and the total number of United States
citizen crewmembers.
(b) Notification of changes in employment for aircraft. The agent
of the air transportation line shall immediately notify in writing the
nearest immigration office of the termination of employment in the
United States of each alien employee of the line furnishing the name,
birth date, birthplace, nationality, passport number, and other
available information concerning such alien. The procedure to follow in
obtaining permission to pay off or discharge an alien crewman in the
United States after initial immigration inspection, other than an alien
lawfully admitted for permanent residence, is set forth in
Sec. 252.1(f) of this chapter.
130. Section 251.5 is revised to read as follows:
Sec. 251.5 Exemptions for private vessels and aircraft.
The provisions of this part relating to submission of arrival and
departure manifests and lists shall not apply to a private vessel or a
private aircraft not
[[Page 10388]]
engaged directly or indirectly in the carriage of persons or cargo for
hire.
PART 252--LANDING OF ALIEN CREWMEN
131. The authority citation for part 252 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1184, 1258, 1281, 1282; 8 CFR part 2.
132. Section 252.1 is amended by revising paragraphs (a) through
(c) to read as follows:
Sec. 252.1 Examination of crewmen.
(a) Detention prior to examination. All persons employed in any
capacity on board any vessel or aircraft arriving in the United States
shall be detained on board the vessel or at the airport of arrival by
the master or agent of such vessel or aircraft until admitted or
otherwise permitted to land by an officer of the Service.
(b) Classes of aliens subject to examination under this part. The
examination of every nonimmigrant alien crewman arriving in the United
States shall be in accordance with this part except that the following
classes of persons employed on vessels or aircraft shall be examined in
accordance with the provisions of 8 CFR parts 235 and 240:
(1) Canadian or British citizen crewmen serving on vessels plying
solely between Canada and the United States; or
(2) Canadian or British citizen crewmen of aircraft arriving in a
State of the United States directly from Canada on flights originating
in that country. The crew of a vessel arriving at a United States port
that may not require inspection by or clearance from the United States
Customs Service is, nevertheless, subject to examination under this
part; however, the master of such a vessel is not required to present
Form I-95 for any crewman who is not an applicant for a conditional
landing permit.
(c) Requirements for landing permits. Every alien crewman applying
for landing privileges in the United States must make his or her
application in person before an immigration officer, present whatever
documents are required, be photographed and fingerprinted as the
district director may require, and establish to the satisfaction of the
immigration officer that he or she is not inadmissible under any
provision of the law and is entitled clearly and beyond doubt to
landing privileges in the United States.
* * * * *
133. Section 252.2 is revised to read as follows:
Sec. 252.2 Revocation of conditional landing permits; removal.
(a) Revocation and removal while vessel is in the United States. A
crewman whose landing permit is subject to revocation pursuant to
section 252(b) of the Act may be taken into custody by any immigration
officer without a warrant of arrest and be transferred to the vessel of
arrival, if the vessel is in any port in the United States and has not
departed foreign since the crewman was issued his or her conditional
landing permit. Detention and removal of the crewman shall be at the
expense of the transportation line on which the crewman arrived.
Removal may be effected on the vessel of arrival or, if the master of
the vessel has requested in writing, by alternate means if removal on
the vessel of arrival is impractical.
(b) Revocation and removal after vessel has departed the United
States. A crewman who was granted landing privileges prior to April 1,
1997, and who has not departed foreign on the vessel of arrival, or on
another vessel or aircraft if such permission was granted pursuant to
Sec. 252.1(f), is subject to removal proceedings under section 240 of
the Act as an alien deportable pursuant to section 237(a)(1)(C)(i) of
the Act. A crewman who was granted landing privileges on or after April
1, 1997, and who has not departed foreign on the vessel of arrival, or
on another vessel or aircraft if such permission was granted pursuant
to Sec. 252.1(f), shall be removed from the United States without a
hearing, except as provided in Sec. 208.2(b)(1) of this chapter. In
either case, if the alien is removed within 5 years of the date of
landing, removal of the crewman shall be at the expense of the owner of
the vessel. In the case of a crewman ordered removed more than 5 years
after the date of landing, removal shall be at the expense of the
appropriation for the enforcement of the Act.
134. Section 252.3 is revised to read as follows:
Sec. 252.3 Great Lakes vessels and tugboats arriving in the United
States from Canada; special procedures.
(a) United States vessels and tugboats. An immigration examination
shall not be required of any crewman aboard a Great Lakes vessel of
United States registry or a tugboat of United States registry arriving
from Canada at a port of the United States who has been examined and
admitted by an immigration officer as a member of the crew of the same
vessel or tugboat or of any other vessel or tugboat of the same company
during the current calendar year.
(b) Canadian or British vessels or tugboats. An alien crewman need
not be presented for inspection if the alien crewman:
(1) Serves aboard a Great Lakes vessel of Canadian or British
registry or aboard a tugboat of Canadian or British registry arriving
at a United States port-of-entry from Canada;
(2) Seeks admission for a period of less than 29 days;
(3) Has, during the current calendar year, been inspected and
admitted by an immigration officer as a member of the crew of the same
vessel or tugboat, or of any other vessel or tugboat of the same
company;
(4) Is either a British or Canadian citizen or is in possession of
a valid Form I-95 previously issued to him or her as a member of the
crew of the same vessel or tugboat, or of any other vessel or tugboat
of the same company;
(5) Does not request or require landing privileges in the United
States beyond the time the vessel or tugboat will be in port; and,
(6) Will depart to Canada with the vessel or tugboat.
135. Section 252.4 is revised to read as follows:
Sec. 252.4 Permanent landing permit and identification card.
A Form I-184 is valid until revoked. It shall be revoked when an
immigration officer finds that the crewman is in the United States in
willful violation of the terms and conditions of his or her permission
to land, or that he or she is inadmissible to the United States. On
revocation, the Form I-184 shall be surrendered to an immigration
officer. No appeal shall lie from the revocation of Form I-184.
136. Section 252.5 is revised to read as follows:
Sec. 252.5 Special procedures for deserters from Spanish or Greek
ships of war.
(a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and
28 CFR 0.109, and E.O. 11300 of August 17, 1966, (31 FR 11009), and 28
CFR 0.110, the Commissioner and immigration officers (as defined in
Sec. 103.1(j) of this chapter) are designated as ``competent national
authorities'' on the part of the United States within the meaning of
Article XXIV of the 1903 Treaty of Friendship and General Relations
between the United States and Spain (33 Stat. 2105, 2117), and ``local
authorities'' and ``competent officers'' on the part of the United
States within the meaning of Article XIII of the Convention between the
United States and Greece (33 Stat. 2122, 2131).
[[Page 10389]]
(b) Application for restoration. On application of a Consul
General, Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek
Government, made in writing pursuant to Article XXIV of the treaty, or
Article XIII of the Convention, respectively, stipulating for the
restoration of crewmen deserting, stating that the person named therein
has deserted from a ship of war of that government, while in any port
of the United States, and on proof by the exhibition of the register,
crew list, or official documents of the vessel, or a copy or extract
therefrom, duly certified, that the person named belonged, at the time
of desertion, to the crew of such vessel, such person shall be taken
into custody by any immigration officer without a warrant of arrest.
Written notification of charges shall be served on the alien when he or
she is taken into custody or as soon as practical thereafter.
(c) Examination. Within a reasonable period of time after the
arrest, the alien shall be accorded an examination by the district
director, acting district director, or the deputy district director
having jurisdiction over the place of arrest. The alien shall be
informed that he or she may have the assistance of or be represented by
a counsel or representative of his or her choice qualified under 8 CFR
part 292 without expense to the Government, and that he or she may
present such evidence in his or her behalf as may be relevant to this
proceeding. If, upon the completion of such examination, it is
determined that:
(1) The individual sought by the Spanish or Greek authorities had
deserted from a Spanish or Greek ship of war in a United States port;
(2) The individual actually arrested and detained is the person
sought;
(3) The individual is not a citizen of the United States; and
(4) The individual had not previously been arrested for the same
cause and set at liberty because he or she had been detained for more
than 3 months, or more than 2 months in the case of a deserter from a
Greek ship of war, from the day of his or her arrest without the
Spanish or Greek authorities having found an opportunity to send him or
her home, the individual shall be served with a copy of the findings,
from which no appeal shall lie, and be surrendered forthwith to the
Spanish or Greek authorities if they are prepared to remove him or her
from the United States. On written request of the Spanish or Greek
authorities, the individual shall be detained, at their expense, for a
period not exceeding 3 months or 2 months, respectively, from the day
of arrest to afford opportunity to arrange for his or her departure
from the United States.
(d) Timely departure not effected. If the Spanish authorities delay
in sending the individual home for more than 3 months, or if the Greek
authorities delay in sending the individual home for more than 2
months, from the day of his or her arrest, the individual shall be
dealt with as any other alien unlawfully in the United States under the
removal provisions of the Act, as amended.
(e) Commission of crime. If the individual has committed any crime
or offense in the United States, he or she shall not be placed at the
disposal of the consul until after the proper tribunal having
jurisdiction in his or her case shall have pronounced sentence, and
such sentence shall have been executed.
PART 253--PAROLE OF ALIEN CREWMEN
137. The authority citation for part 253 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.
138. In Sec. 253.1, paragraph (f) is revised to read as follows:
Sec. 253.1 Parole.
* * * * *
(f) Crewman, stowaway, or alien removable under section 235(c)
alleging persecution. Any alien crewman, stowaway, or alien removable
under section 235(c) of the Act who alleges that he or she cannot
return to his or her country of nationality or last habitual residence
(if not a national of any country) because of fear of persecution in
that country on account of race, religion, nationality, membership in a
particular social group, or political opinion, is eligible to apply for
asylum or withholding of removal under 8 CFR part 208. Service officers
shall take particular care to ensure that the provisions of
Sec. 208.5(b) of this chapter regarding special duties toward aliens
aboard certain vessels are closely followed.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
139. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
140. Section 274a.12 is amended by:
a. Revising paragraphs (a)(10) and (12);
b. Revising paragraphs (c)(8) and (10);
c. Revising paragraph (c)(12); and by
d. Revising paragraph (c)(18), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) * * *
(10) An alien granted withholding of deportation or removal for the
period of time in that status, as evidenced by an employment
authorization document issued by the Service;
* * * * *
(12) An alien granted Temporary Protected Status under section 244
of the Act for the period of time in that status, as evidenced by an
employment authorization document issued by the Service; or
* * * * *
(c) * * *
(8) An alien who has filed a complete application for asylum or
withholding of deportation or removal pursuant to 8 CFR part 208, whose
application:
(i) Has not been decided, and who is eligible to apply for
employment authorization under Sec. 208.7 of this chapter because the
150-day period set forth in that section has expired. Employment
authorization may be granted according to the provisions of Sec. 208.7
of this chapter in increments to be determined by the Commissioner and
shall expire on a specified date; or
(ii) Has been recommended for approval, but who has not yet
received a grant of asylum or withholding or deportation or removal;
* * * * *
(10) An alien who has filed an application for suspension of
deportation under section 244 of the Act (as it existed prior to April
1, 1997) or cancellation of removal pursuant to section 240A of the
Act. Employment authorization shall be granted in increments not
exceeding one year during the period the application is pending
(including any period when an administrative appeal or judicial review
is pending) and shall expire on a specified date;
* * * * *
(12) An alien granted benefits under the Family Unity provisions of
section 301 of IMMACT 90 and the provisions of part 236, Subpart B of
this chapter.
* * * * *
(18) An alien against whom a final order of deportation or removal
exists and who is released on an order of supervision under the
authority contained in section 241(a)(3) of the Act may be granted
employment authorization in the discretion of the district director
only if the alien cannot be removed due to the refusal of all countries
designated by the alien or under section 241 of the Act to receive the
alien, or because the removal of the alien is otherwise impracticable
or
[[Page 10390]]
contrary to the public interest. Additional factors which may be
considered by the district director in adjudicating the application for
employment authorization include, but are not limited to, the
following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the
United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be
removed from the United States.
* * * * *
PART 286--IMMIGRATION USER FEE
141. The authority citation for part 286 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.
142. In Sec. 286.9, paragraph (b)(3) is revised to read as follows:
Sec. 286.9 Fee for processing applications and issuing documentation
at land border Ports-of-Entry.
* * * * *
(b) * * *
(3) A Mexican national in possession of a valid nonresident alien
border crossing card or nonimmigrant B-1/B-2 visa who is required to be
issued Form I-94, Arrival/Departure Record, pursuant to Sec. 235.1(f)
of this chapter, must remit the required fee for issuance of Form I-94
upon determination of admissibility.
* * * * *
PART 287--FIELD OFFICERS; POWERS AND DUTIES
143. The authority citation for part 287 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8
CFR part 2.
144. Section 287.3 is revised to read as follows:
Sec. 287.3 Disposition of cases of aliens arrested without warrant.
(a) Examination. An alien arrested without a warrant of arrest
under the authority contained in section 287(a)(2) of the Act will be
examined by an officer other than the arresting officer. If no other
qualified officer is readily available and the taking of the alien
before another officer would entail unnecessary delay, the arresting
officer, if the conduct of such examination is a part of the duties
assigned to him or her, may examine the alien.
(b) Determination of proceedings. If the examining officer is
satisfied that there is prima facie evidence that the arrested alien
was entering, attempting to enter, or is present in the United States
in violation of the immigration laws, the examining officer will refer
the case to an immigration judge for further inquiry in accordance with
8 CFR parts 235, 239, or 240, order the alien removed as provided for
in section 235(b)(1) of the Act and Sec. 235.3(b) of this chapter, or
take whatever other action may be appropriate or required under the
laws or regulations applicable to the particular case.
(c) Notifications and information. Except in the case of an alien
subject to the expedited removal provisions of section 235(b)(1)(A) of
the Act, an alien arrested without warrant and placed in formal
proceedings under section 238 or 240 of the Act will be advised of the
reasons for his or her arrest and the right to be represented at no
expense to the Government. The examining officer will provide the alien
with a list of the available free legal services provided by
organizations and attorneys qualified under 8 CFR part 3 and
organizations recognized under Sec. 292.2 of this chapter that are
located in the district where the hearing will be held. The examining
officer shall note on Form I-862 that such a list was provided to the
alien. The officer will also advise the alien that any statement made
may be used against him or her in a subsequent proceeding.
(d) Custody procedures. Unless voluntary departure has been granted
pursuant to subpart C of 8 CFR part 240, a determination will be made
within 24 hours of the arrest whether the alien will be continued in
custody or released on bond or recognizance and whether a notice to
appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239
will be issued.
145. In Sec. 287.4, paragraph (d) is revised to read as follows:
Sec. 287.4 Subpoena.
* * * * *
(d) Invoking aid of court. If a witness neglects or refuses to
appear and testify as directed by the subpoena served upon him or her
in accordance with the provisions of this section, the officer or
immigration judge issuing the subpoena shall request the United States
Attorney for the district in which the subpoena was issued to report
such neglect or refusal to the United States District Court and to
request such court to issue an order requiring the witness to appear
and testify and to produce the books, papers, or documents designated
in the subpoena.
146. In Sec. 287.5, paragraphs (b) through (f) are revised to read
as follows:
Sec. 287.5 Exercise of power by immigration officers.
* * * * *
(b) Power and authority to patrol the border. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the power to patrol the border conferred by section 287(a)(3)
of the Act:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Immigration inspectors (seaport operations only);
(4) Adjudications officers and deportation officers when in the
uniform of an immigration inspector and performing inspections or
supervising other immigration inspectors performing inspections
(seaport operations only);
(5) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(6) Immigration officers who need the authority to patrol the
border under section 287(a)(3) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner.
(c) Power and authority to arrest--(1) Arrests of aliens under
section 287(a)(2) of the Act for immigration violations. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the arrest power conferred by section 287(a)(2) of the Act and
in accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors;
(v) Adjudications officers;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(vii) Immigration officers who need the authority to arrest aliens
under section 287(a)(2) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner.
(2) Arrests of persons under section 287(a)(4) of the Act for
felonies regulating the admission or removal of aliens. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise
[[Page 10391]]
the arrest power conferred by section 287(a)(4) of the Act and in
accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors;
(v) Adjudications officers;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(vii) Immigration officers who need the authority to arrest persons
under section 287(a)(4) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
(3) Arrests of persons under section 287(a)(5)(A) of the Act for
any offense against the United States. The following immigration
officers who have successfully completed basic immigration law
enforcement training are hereby authorized and designated to exercise
the arrest power conferred by section 287(a)(5)(A) of the Act and in
accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors (permanent full-time immigration
inspectors only);
(v) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(vii) Immigration officers who need the authority to arrest persons
under section 287(a)(5)(A) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner with the approval of
the Deputy Attorney General.
(4) Arrests of persons under section 287(a)(5)(B) of the Act for
any felony. (i) Section 287(a)(5)(B) of the Act authorizes designated
immigration officers, as listed in paragraph (c)(4)(iii) of this
section, to arrest persons, without warrant, for any felony cognizable
under the laws of the United States if:
(A) The immigration officer has reasonable grounds to believe that
the person to be arrested has committed or is committing such a felony;
(B) The immigration officer is performing duties relating to the
enforcement of the immigration laws at the time of the arrest;
(C) There is a likelihood of the person escaping before a warrant
can be obtained for his or her arrest; and
(D) The immigration officer has been certified as successfully
completing a training program that covers such arrests and the
standards with respect to the enforcement activities of the Service as
defined in Sec. 287.8.
(ii) The following immigration officers who have successfully
completed basic immigration law enforcement training are hereby
authorized and designated to exercise the arrest power conferred by
section 287(a)(5)(B) of the Act and in accordance with Sec. 287.8(c):
(A) Border patrol agents, including aircraft pilots;
(B) Special agents;
(C) Deportation officers;
(D) Immigration inspectors (permanent full-time immigration
inspectors only);
(E) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(F) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(G) Immigration officers who need the authority to arrest persons
under section 287(a)(5)(B) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner with the approval of
the Deputy Attorney General.
(iii) Notwithstanding the authorization and designation set forth
in paragraph (c)(4)(ii) of this section, no immigration officer is
authorized to make an arrest for any felony under the authority of
section 287(a)(5)(B) of the Act until such time as he or she has been
certified by the Director of Training as successfully completing a
training course encompassing such arrests and the standards for
enforcement activities as defined in Sec. 287.8. Such certification
shall be valid for the duration of the immigration officer's continuous
employment, unless it is suspended or revoked by the Commissioner or
the Commissioner's designee for just cause.
(5) Arrests of persons under section 274(a) of the Act who bring
in, transport, or harbor certain aliens, or induce them to enter. (i)
Section 274(a) of the Act authorizes designated immigration officers,
as listed in paragraph (c)(5)(ii) of this section, to arrest persons
who bring in, transport, or harbor aliens, or induce them to enter the
United States in violation of law. When making an arrest, the
designated immigration officer shall adhere to the provisions of the
enforcement standard governing the conduct of arrests in Sec. 287.8(c).
(ii) The following immigration officers who have successfully
completed basic immigration law enforcement training are authorized and
designated to exercise the arrest power conferred by section 274(a) of
the Act:
(A) Border patrol agents, including aircraft pilots;
(B) Special agents;
(C) Deportation officers;
(D) Immigration inspectors;
(E) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(F) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(G) Immigration officers who need the authority to arrest persons
under section 274(a) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
(6) Custody and transportation of previously arrested persons. In
addition to the authority to arrest pursuant to a warrant of arrest in
paragraph (e)(3)(iv) of this section, detention enforcement officers
who have successfully completed basic immigration law enforcement
training are hereby authorized and designated to take and maintain
custody of and transport any person who has been arrested by an
immigration officer pursuant to paragraphs (c)(1) through (c)(5) of
this section.
(d) Power and authority to conduct searches. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the power to conduct searches conferred by section 287(c) of
the Act:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Immigration inspectors;
(5) Adjudications officers;
(6) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(7) Immigration officers who need the authority to conduct searches
under section 287(c) of the Act in order to
[[Page 10392]]
effectively accomplish their individual missions and who are
designated, individually or as a class, by the Commissioner.
(e) Power and authority to execute warrants--(1) Search warrants.
The following immigration officers who have successfully completed
basic immigration law enforcement training are hereby authorized and
designated to exercise the power conferred by section 287(a) of the Act
to execute a search warrant:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph,
and
(iv) Immigration officers who need the authority to execute search
warrants under section 287(a) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner with the approval of
the Deputy Attorney General.
(2) Issuance of arrest warrants for immigration violations. A
warrant of arrest may be issued only by the following immigration
officers:
(i) District directors (except foreign);
(ii) Deputy district directors (except foreign);
(iii) Assistant district directors for investigations;
(iv) Deputy assistant district directors for investigations;
(v) Assistant district directors for deportation;
(vi) Deputy assistant district directors for deportation;
(vii) Assistant district directors for examinations;
(viii) Deputy assistant district directors for examinations;
(ix) Officers in charge (except foreign);
(x) Assistant officers in charge (except foreign);
(xi) Chief patrol agents;
(xii) Deputy chief patrol agents;
(xiii) Associate chief patrol agents;
(xiv) Assistant chief patrol agents;
(xv) Patrol agents in charge;
(xvi) The Assistant Commissioner, Investigations;
(xvii) Institutional Hearing Program directors;
(xviii) Area port directors;
(xix) Port directors; or
(xx) Deputy port directors.
(3) Service of warrant of arrests for immigration violations. The
following immigration officers who have successfully completed basic
immigration law enforcement training are hereby authorized and
designated to exercise the power pursuant to section 287(a) of the Act
to execute warrants of arrest for administrative immigration violations
issued under section 236 of the Act or to execute warrants of criminal
arrest issued under the authority of the United States:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Detention enforcement officers (warrants of arrest for
administrative immigration violations only);
(v) Immigration inspectors;
(vi) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(vii) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(viii) Immigration officers who need the authority to execute
arrest warrants for immigration violations under section 287(a) of the
Act in order to effectively accomplish their individual missions and
who are designated, individually or as a class, by the Commissioner,
for warrants of arrest for administrative immigration violations, and
with the approval of the Deputy Attorney General, for warrants of
criminal arrest.
(4) Service of warrant of arrests for non-immigration violations.
The following immigration officers who have successfully completed
basic immigration law enforcement training are hereby authorized and
designated to exercise the power to execute warrants of criminal arrest
for non-immigration violations issued under the authority of the United
States:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(v) Immigration officers who need the authority to execute warrants
of arrest for non-immigration violations under section 287(a) of the
Act in order to effectively accomplish their individual missions and
who are designated, individually or as a class, by the Commissioner
with the approval of the Deputy Attorney General.
(f) Power and authority to carry firearms. The following
immigration officers who have successfully completed basic immigration
enforcement training are hereby authorized and designated to exercise
the power conferred by section 287(a) of the Act to carry firearms
provided that they are individually qualified by training and
experience to handle and safely operate the firearms they are permitted
to carry, maintain proficiency in the use of such firearms, and adhere
to the provisions of the enforcement standard governing the use of
force in Sec. 287.8(a):
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Detention enforcement officers;
(5) Immigration inspectors;
(6) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(7) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(8) Immigration officers who need the authority to carry firearms
under section 287(a) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
147. Section 287.7 is revised to read as follows:
Sec. 287.7 Detainer provisions under section 287(d)(3) of the Act.
(a) Detainers in general. Detainers are issued pursuant to sections
236 and 287 of the Act and this chapter. Any authorized Service
official may at any time issue a Form I-247, Immigration Detainer-
Notice of Action, to any other Federal, State, or local law enforcement
agency. A detainer serves to advise another law enforcement agency that
the Service seeks custody of an alien presently in the custody of that
agency, for the purpose of arresting and removing the alien. The
detainer is a request that such agency advise the Service, prior to
release of the alien, in order for the Service to arrange to assume
custody, in situations when gaining immediate physical custody is
either impracticable or impossible.
(b) Authority to issue detainers. The following officers are
authorized to issue detainers:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Immigration inspectors;
(5) Adjudications officers;
(6) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed in this paragraph;
and
(7) Immigration officers who need the authority to issue detainers
under
[[Page 10393]]
section 287(d)(3) of the Act in order to effectively accomplish their
individual missions and who are designated individually or as a class,
by the Commissioner.
(c) Availability of records. In order for the Service to accurately
determine the propriety of issuing a detainer, serving a notice to
appear, or taking custody of an alien in accordance with this section,
the criminal justice agency requesting such action or informing the
Service of a conviction or act that renders an alien inadmissible or
removable under any provision of law shall provide the Service with all
documentary records and information available from the agency that
reasonably relates to the alien's status in the United States, or that
may have an impact on conditions of release.
(d) Temporary detention at Service request. Upon a determination by
the Service to issue a detainer for an alien not otherwise detained by
a criminal justice agency, such agency shall maintain custody of the
alien for a period not to exceed 48 hours, excluding Saturdays,
Sundays, and holidays in order to permit assumption of custody by the
Service.
(e) Financial responsibility for detention. No detainer issued as a
result of a determination made under this chapter shall incur any
fiscal obligation on the part of the Service, until actual assumption
of custody by the Service, except as provided in paragraph (d) of this
section.
PART 299--IMMIGRATION FORMS
148. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
149. Section 299.1 is amended by:
a. Revising the entries for Forms ``I-147'', ``I-205'', ``I-246'',
``I-247'', ``I-259'', ``I-284'', ``I-286'', ``I-291'', ``I-296'', ``I-
408'', ``I-541'', ``I-589'', ``I-775'', ``I-851'', and ``I-851A'';
b. Removing the entries for Forms I-122'', ``I-221'', ``I-259C'',
``I-290A'', and ``I-444'', and by
c. Adding the entries for Forms ``I-94T'', ``I-99'', ``I-148'',
``I-160'', ``I-210'', ``I-213'', ``I-217'', ``I-220A'', ``I-220B'',
``I-241'', ``I-261'', ``I-270'', ``I-275'', ``I-294'', ``I-407'', ``I-
546'', ``I-701'', ``I-770'', ``I-771'', ``I-826'', ``I-827B'', ``I-
860'', ``I-862'', ``I-863'', ``I-867AB'', and ``I-869'' in proper
numerical sequence, to the listing of forms, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
----------------------------------------------------------------------------------------------------------------
Form No. Edition date Title
----------------------------------------------------------------------------------------------------------------
* * * * * * *
I-94T.................................... 09-22-87................................ Arrival-Departure Record
(Transit without visa).
* * * * * * *
I-99..................................... 04-01-97................................ Notice of Revocation and
Penalty.
* * * * * * *
I-147.................................... 04-01-97................................ Notice of Temporary
Inadmissibility to U.S.
I-148.................................... 04-01-97................................ Notice of Permanent
Inadmissibility.
I-160.................................... 04-01-97................................ Notice of Parole/Lookout
Intercept.
* * * * * * *
I-205.................................... 04-01-97................................ Warrant of Removal.
I-210.................................... 04-01-97................................ Notice of Action--Voluntary
Departure.
* * * * * * *
I-213.................................... 04-01-97................................ Record of Deportable/
Inadmissible Alien.
I-217.................................... 04-01-97................................ Information for Travel
Document or Passport.
I-220A................................... 04-01-97................................ Order of Release on
Recognizance.
I-220B................................... 04-01-97................................ Order of Supervision.
* * * * * * *
I-241.................................... 04-01-97................................ Request for Travel Document
to Country Designated by
Alien.
* * * * * * *
I-246.................................... 04-01-97................................ Application for Stay of
Removal.
I-247.................................... 04-01-97................................ Immigration Detainer--
Notice of Action.
I-259.................................... 04-01-97................................ Notice to Detain, Deport,
Remove, or Present Aliens.
* * * * * * *
I-261.................................... 04-01-97................................ Additional Charges of
Removability.
I-270.................................... 04-01-97................................ Request for Consent to
Return Person to Canada.
I-275.................................... 04-01-97................................ Withdrawal of Application/
Consular Notification.
I-284.................................... 04-01-97................................ Notice to Transportation
Line Regarding Deportation
and Detention Expenses of
Detained Alien.
I-286.................................... 04-01-97................................ Notification to Alien of
Conditions of Release or
Detention.
* * * * * * *
I-291.................................... 04-01-97................................ Decision on Application for
Status as Permanent
Resident.
* * * * * * *
I-294.................................... 04-01-97................................ Notice of Country to Which
Deportation has been
Directed and Penalty for
Reentry without
Permission.
I-296.................................... 04-01-97................................ Notice to Alien Ordered
Removed.
* * * * * * *
I-407.................................... 04-01-97................................ Abandonment by Alien of
Status as Lawful Permanent
Resident.
I-408.................................... 04-01-97................................ Application to Pay Off or
Discharge Alien Crewman.
[[Page 10394]]
* * * * * * *
I-541.................................... 04-01-97................................ Order of Denial of
Application for Extension
of Stay or Student
Employment or Student
Transfer.
* * * * * * *
I-546.................................... 04-01-97................................ Order to Appear--Deferred
Inspection.
* * * * * * *
I-589.................................... 04-01-97................................ Application for Asylum and
Withholding of Removal.
* * * * * * *
I-701.................................... 04-01-97................................ Detainee Transfer
Worksheet.
* * * * * * *
I-770.................................... 04-01-97................................ Notice of Rights and
Request for Disposition.
I-771.................................... 04-01-97................................ Bond Computation Worksheet.
I-775.................................... 04-01-97................................ Visa Waiver Pilot Program
Agreement.
* * * * * * *
I-826.................................... 04-01-97................................ Notice of Rights and
Request for Disposition
I-851.................................... 04-01-97................................ Notice of Intent to Issue
Final Administrative
Removal Order.
I-851A................................... 04-01-97................................ Final Administrative
Removal Order.
* * * * * * *
I-860.................................... 04-01-97................................ Notice and Order of
Expedited Removal.
I-862.................................... 04-01-97................................ Notice to Appear.
I-863.................................... 04-01-97................................ Notice of Referral to
Immigration Judge.
I-867AB.................................. 04-01-97................................ Record of Sworn Statement
in Proceedings under
Section 235(b)(1) of the
Act.
I-869.................................... 04-01-97................................ Record of Negative Credible
Fear Finding and Request
for Review by Immigration
Judge.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
150. Section 299.5 is amended by:
a. Removing the entry for Form ``I-259C''; and by
b. Revising the entries for Forms ``I-246'' and ``I-589'', and to
read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form no. INS form title OMB control
no.
------------------------------------------------------------------------
* * * *
* * *
I-246 Application for Stay 1115-0055
of Removal.
* * * *
* * *
I-589 Application for Asylum 1115-0086
and Withholding of
Removal.
* * * *
* * *
------------------------------------------------------------------------
PART 316--GENERAL REQUIREMENTS FOR NATURALIZATION
151. The authority citation for part 316 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1443, 1447; 8 CFR part 2.
152. Section 316.5 is amended by revising paragraph (c)(3) to read
as follows:
Sec. 316.5 Residence in the United States.
* * * * *
(c) * * *
(3) Removal and return. Any departure from the United States while
under an order of removal (including previously issued orders of
exclusion or deportation) terminates the applicant's status as a lawful
permanent resident and, therefore, disrupts the continuity of residence
for purposes of this part.
* * * * *
PART 318--PENDING REMOVAL PROCEEDINGS
153. The heading for part 318 is revised as set forth above.
154. The authority citation for part 318 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1252, 1429, 1443; 8 CFR part 2.
155. Section 318.1 is revised to read as follows:
Sec. 318.1 Warrant of arrest.
For the purposes of section 318 of the Act, a notice to appear
issued under 8 CFR part 239 (including a charging document issued to
commence proceedings under sections 236 or 242 of the Act prior to
April 1, 1997) shall be regarded as a warrant of arrest.
PART 329--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
NATURALIZATION BASED UPON ACTIVE DUTY SERVICE IN THE UNITED STATES
ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES
156. The authority citation for part 329 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1440, 1443; 8 CFR part 2.
[[Page 10395]]
159 Section 329.2 is amended by revising paragraph (e)(3) to read
as follows:
Sec. 329.2 Eligibility.
* * * * *
(e) * * *
(3) The applicant may be naturalized even if an outstanding notice
to appear pursuant to 8 CFR part 239 (including a charging document
issued to commence proceedings under sections 236 or 242 of the Act
prior to April 1, 1997) exists.
Dated: February 26, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-5250 Filed 2-28-97; 3:29 pm]
BILLING CODE 4410-10-P
