[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11314]
[[Page Unknown]]
[Federal Register: May 13, 1994]
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DEPARTMENT OF JUSTICE
8 CFR Part 3
[AG Order No. 1873-94]
Executive Office for Immigration Review; Stipulated Requests for
Deportation or Exclusion Orders Telephonic, Video Teleconferenced
Hearings
agency: Department of Justice.
action: Proposed rule.
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summary: This proposed rule would amend agency regulations by requiring
Immigration Judge to enter an order of deportation or exclusion,
without a hearing, if satisfied that the alien voluntarily entered into
a plea-negotiated or otherwise stipulated request for an order of
deportation or exclusion. It further codifies the practice of
Immigration Judges conducting telephone hearings in deportation,
exclusion, or rescission cases, and codifies the authority of the
Immigration Judge to hold video teleconferenced hearings.
The proposed rule also clarifies regulatory language to conform
with in absentia hearing provisions under the Immigration and
Nationality Act (the ``Act'').
dates: Written comments must be received no later than June 13, 1994.
addresses: Please submit written comments, in triplicate, to Gerald S.
Hurwitz, Counsel to the Director, Executive Office for Immigration
Review, suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041
(703) 305-0470.
for further information contact: Gerald S. Hurwitz, Counsel to the
Director, Executive Office for Immigration Review, Suite 2400, 5107
Leesburg Pike, Falls Church, Virginia 22041 (703) 305-0470; Brian
O'Leary, Associate General Counsel, Office of the General Counsel, room
6100, Immigration and Naturalization Service, 425 I Street, NW.,
Washington, DC 20536 (202) 514-2895.
supplementary information: This proposed rule amends 8 CFR 3.25 by
requiring the Immigration Judge, under new subparagraph (b), to enter
an order of deportation or exclusion on the written record, without an
in-person hearing, based upon the stipulated written request of the
respondent/applicant and the government, provided that the Immigration
Judge determines that the charging document sets forth a valid basis
for deportability or excludability; the stipulated request for an order
of deportation or exclusion is voluntarily entered into by the
respondent/applicant; and the respondent/applicant specifically waives
relief from deportation or exclusion as well as the described hearing
rights. The requirements that the Immigration Judge enter the order
without a hearing is limited to cases in which the applicant or
respondent was represented at the time of the stipulation. The
stipulation must be signed on behalf of the government and by both the
applicant or respondent and his or her attorney or other representative
qualified under part 292 of this chapter.
This procedure codifies the litigation practice in some
jurisdictions where, if a party enters into a stipulated request for a
deportation or exclusion order with a written waiver of his or her
appearance and rights, the Immigration Judge may sign the order of
deportation or exclusion based upon the written record. This practice
facilitates judicial efficiency in uncontested cases. For example, it
has been used to expedite departure shortly after the sentencing of
aliens convicted of offenses rendering them immediately deportable or
excludable. Whereas this practice currently occurs at the discretion of
the Immigration Judge, the proposed rule would make it mandatory.
The procedure also has been used by imprisoned criminal aliens
having no apparent avenue of relief from deportation or exclusion who,
after consultation with counsel, wish to avoid further detention
pending deportation or exclusion proceedings following release from
prison. While protecting the rights of the parties, the rule also
implements the statutory requirement of expeditious deportation of
criminal aliens under 8 U.S.C. 1252(i), 1252a(d). If used more widely
by litigants and criminal prosecutors, the procedure could alleviate
overcrowded federal, state, and local detention facilities and
eliminate the need to calendar such uncontested cases on crowded
immigration court dockets. The procedure is not limited to cases
arising from the criminal context and can be used in other appropriate
settings.
New subparagraph (c) establishes the authority of Immigration
Judges to hold telephonic hearings. Although the proposal is meant to
be applicable nationwide, Purba v. INS, 884 F.2d 761 (9th Cir. 1988),
holds that telephonic deportation hearings may only be conducted with
the consent of the parties. This is in conflict with the proposed
regulation, which permits telephonic hearings to be conducted at the
discretion of the Immigration Judge. The Immigration Judges in the
geographical confines the Ninth Circuit currently follow Purba and will
continue to follow the law of the circuit if the proposed rule is
finally adopted. In all areas outside the Ninth Circuit the regulation
would be effective and telephonic hearings would be conducted when an
Immigration Judge, in his or her sound discretion, deems it
appropriate. Subparagraph (c) also codifies the authority of
Immigration Judges to hold video teleconferenced hearings. This
practice increases administrative efficiency.
The proposed rule also makes minor technical changes in
subparagraph (a) to conform with the in absentia provisions of 8 U.S.C.
1252.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not a major rule
within the meaning of section 1(b) of Executive Order No. 12291 and
this rule has no Federalism implications warranting the preparation of
a Federalism Assessment in accordance with Executive Order No. 12612.
The rule meets the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order No. 12778.
List of Subjects in 8 CFR Part 3
Administrative practice and procedure, Immigration and
Naturalization Service, Organization and functions (government
agencies).
Accordingly, 8 CFR part 3 is proposed to be amended as set forth
below:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. 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, 1362;
28 U.S.C. 509, 510, 1746; Section 2, Reorganization Plan No. 2 of
1950, 3 CFR, 1949-1953 Comp., p. 1002.
2. Section 3.25 is revised to read as follows:
Sec. 3.25 Waiver of presence of the parties.
(a) Good cause shown. The Immigration Judge may, for good cause,
waive the presence of a respondent/applicant at the hearing where the
alien is represented or where the alien is a minor child at least one
of whose parents or whose legal guardian is present. In addition, in
absentia hearings may be held pursuant to sections 1252(b) and 1252(c)
of Title 8, United States Code with or without representation.
(b) Stipulated request for order; waiver of hearing.
Notwithstanding any other provision of this chapter, upon the written
request of the respondent/applicant and upon concurrence of the
government, the Immigration Judge shall not hold a hearing and shall
enter an order of deportation or exclusion on the written record if the
Immigration Judge determines, upon a review of the charging document,
stipulation document, and supporting documents, if any, that a
represented respondent/applicant voluntarily entered into a stipulated
request for an order of deportation or exclusion. The stipulation
document shall include:
(i) An admission of all factual allegations contained in the
charging document to be true and correct as written;
(ii) A concession of deportability or excludability as charged;
(iii) A statement that the respondent/applicant makes no
application for relief from deportation or exclusion, including, but
not limited to, voluntary departure, asylum, adjustment of status,
registry, de novo review of a termination of conditional resident
status, de novo review of a denial or revocation of temporary protected
status, relief under 8 U.S.C. 1182(c), suspension of deportion, or any
other possible relief under the Act;
(iv) A designation of a country for deportation under 8 U.S.C.
1253(a);
(v) A concession to the introduction of the written statements of
the respondent/applicant as an exhibit to the record or proceedings;
(vi) A statement that the attorney/representative has explained the
consequences of the stipulated request to the respondent/applicant and
that the respondent/applicant enters the request voluntarily, knowingly
and intelligently;
(vii) A statement that the respondent/applicant will accept a
written order for his or her deportation or exclusion as a final
disposition of the proceedings; and
(viii) A waiver of appeal of the written order of deportation or
exclusion.
(2) The stipulated request and required waivers shall be signed on
behalf of the government and by both the respondent/applicant and his
or her attorney or other representative qualified under part 292 of
this chapter. The attorney or other representative shall file a Notice
of Appearance in accordance with Sec. 3.16(a) of this part.
(c) Telephonic or video teleconferenced hearing. An Immigration
Judge may conduct a telephonic or video teleconferenced hearing in any
proceeding under 8 U.S.C. 1226, 1252, or 1256.
Dated: May 1, 1994.
Janet Reno,
Attorney General.
FR Doc. 94-11314 Filed 5-12-94; 8:45 am]
BILLING CODE 4410-01-M
