[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Rules and Regulations]
[Pages 26351-26353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12080]
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DEPARTMENT OF JUSTICE
8 CFR Part 3
[EOIR No. 103F; AG Order No. 1966-95]
RIN 1125-AA03
Executive Office for Immigration Review; Stipulated Requests for
Deportation or Exclusion Orders, Telephonic, Video Electronic Media
Hearings
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends 8 CFR 3.25 by codifying an Immigration
Judge's discretion 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 telephonic hearings in deportation,
exclusion, or recission cases, and codifies the authority of the
Immigration Judge to hold video electronic media hearings.
The proposed rule also clarifies the language in Sec. 3.25(a) to
conform with in absentia hearing provisions under the Immigration and
Nationality Act (the ``Act''), 8 U.S.C. 1252, 1252b.
EFFECTIVE DATE: June 16, 1995.
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.
SUPPLEMENTARY INFORMATION: The Department of Justice published a
proposed rule on May 13, 1994 (59 FR 24976). The proposed rule sought
to amend Sec. 3.25 of title 8, CFR, to require an Immigration Judge 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 under certain specified
circumstances. The requirement to enter orders of deportation or
exclusion based on the written record would arise only in instances
where the Immigration Judge determined that the charging document set
forth a valid basis for deportability or excludability; the stipulated
request for an order of deportation or exclusion was voluntarily
entered into by the respondent/applicant; and the respondent/applicant
specifically waived relief from deportation or exclusion as well as the
described hearing rights.
The rule also proposed to establish the authority of the
Immigration Judge to hold telephonic hearings and video electronic
media hearings. Additionally, the proposed rule made minor technical
changes in paragraph (a) to conform with the in absentia provisions of
8 U.S.C. 1252.
The Executive Office for Immigration Review (``EOIR'' or ``the
Agency'') received eighteen comments concerning the proposed rule. The
comments addressed the waiver of presence of the parties, the
requirement that an Immigration Judge enter stipulated orders of
deportation and exclusion under certain circumstances, and an
Immigration Judge's discretion to conduct telephonic and video
electronic media hearings.
1. Section 3.25(a) Waiver of Presence of the Parties
The Agency received one comment objecting to the proposed rule's
provision allowing the Immigration Judge to waive the presence of an
alien who is a child where a parent or legal guardian is present. The
commenter argued that the rule would provide children with less due
process protection than it provides adults.
This rule is for the convenience of the parties. For example, if
parents and their infant child are in deportation proceedings, this
rule allows the Immigration Judge to waive the presence of the infant.
Such a waiver allows parents to place the child in childcare during the
hearing. The waiver allows the parents and the Immigration Judge to
concentrate on the substantive issues. For pragmatic reasons, the
Agency has decided to retain this rule.
2. Section 3.25(b) Stipulated Request for Deportation or Exclusion
Orders
Numerous commenters expressed due process concerns with the
proposed rule's provision requiring an Immigration Judge to enter an
order of deportation or exclusion if, based on the written record, the
Judge determines that a represented respondent/applicant voluntarily
entered into a stipulated request for an order of deportation or
exclusion. Conversely, other commenters expressed approval of the
requirement and suggested that the Agency expand the requirement to
include motions for changes of venue and some forms of relief.
Commenters also expressed concern that the rule requiring that a
respondent/applicant make no application for relief unjustly limits the
options of the respondent/applicant.
The rule has been modified to respond to the commenters' due
process concerns. The final rule does not require an Immigration Judge
to enter an order of deportation or exclusion based on the parties'
written stipulation. stead, the rule explicitly recognizes a Judge's
discretion to enter an order of deportation or exclusion based on the
parties' written stipulation. The Immigration Judge's discretion to
enter an order by written stipulation in the absence of the parties is
limited to cases in which the applicant or respondent is represented at
the time of the stipulation and where the stipulation is 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. At this juncture, the Agency declines to modify the scope
of the stipulation procedure, and so the final rule does not address
venue and has not changed with respect to application for relief.
Commenters stated that the proposed rule did not give sufficient
emphasis to the requirement that only represented respondents/
applicants may enter into stipulation requests. In response, the word
``represented'' has been inserted before each reference to respondent/
applicant in the final version of Sec. 3.25(b).
Commenters stated that the proposed rule did not give sufficient
emphasis to the requirement that the respondent/applicant fully
understand the ramifications of a stipulation. In ascertaining the
extent of understanding, one commenter suggested that the Immigration
Judge should focus specifically on the respondent/applicant's English
language skills. The words ``voluntarily, [[Page 26352]] knowingly and
intelligently'' have been added to ensure maximum protection for aliens
entering into stipulations. Because language skills are subsumed in the
voluntarily, knowingly and intelligently formula, the Agency considers
it unnecessary for the rule to specifically address language skills.
One commenter, although supporting the rule's concept, expressed a
technical concern with the elimination of ``hearings'' when the
requirements for a stipulated deportation or exclusion are met.
According to the comment, there is a statutory mandate that Immigration
Judge conduct ``hearings''. In response to this comment, the final rule
now states that the Immigration Judge may ``conduct hearings in the
absence of the parties.''
A few commenters stated, in essence, that the requirement that the
respondent/applicant introduce written statements as an exhibit to the
record of proceedings was superfluous. The commenters suggested
deletion of this requirement. Because of the potential value of a
complete record, the Agency rejects this suggestion.
One commenter suggested that the rule should explicitly permit
revocation of stipulated deportations and exclusions. Because the Code
of Federal Regulations already provides mechanisms for motions to
reopen, motions to reconsider, and notices of appeal, e.g., 8 CFR
103.5, 208.19, 242.21, 242.22, and 3.3, a revocation provision would be
redundant and potentially confusing.
The rule implements the statutory requirement of expeditious
deportation of criminal aliens under 8 U.S.C. 1252(i), 1252a(d), while
protecting the rights of the parties. The rule contemplates employing
stipulated deportations to expedite departures of aliens convicted of
offenses rendering them immediately deportable or excludable.
Stipulated deportations also allow the prompt departure of imprisoned
criminal aliens who have no apparent avenue of relief from deportation
or exclusion and who wish to avoid immigration-related detention after
having completed their criminal sentences. 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 in the criminal
context and can be used in other appropriate settings. The practice
codified by the final rule already exists in some jurisdictions. The
final rule promotes judicial efficiency in uncontested cases and
resolves the commenters' due process concerns.
3. Section 3.25(c) Telephonic or Video Electronic Media Hearing
Commenters raised both statutory and practical concerns with this
section of the proposed rule. The statutory concerns revolved around
the proper construction of the phrase ``before a special inquiry
officer'' as used in 8 U.S.C. 1252(b). According to some comments, the
word ``before'' must be construed to mean that an alien is entitled to
appear physically before an Immigration Judge. Commenters made no
distinction between telephonic and video electronic media hearings.
These comments relied on Purba v. INS, 884 F.2d 516, 517-18 (9th Cir.
1989) (holding that ``section 242a(b) [of the Act] requires that the
hearing be conducted with the hearing participants in the physical
presence of the IJ [Immigration Judge]'' and that ``telephonic hearings
by an IJ, absent consent of the parties, simply are not authorized by
the statute''). The Ninth Circuit decision in Purba informs the issue
of whether telephonic hearings are appropriate. However, Purba disposes
of the issue in the Ninth Circuit only. Notably, the Eleventh Circuit
also has addressed the issue of whether the statutory language of the
Act allows for telephonic hearings at the Immigration Judge's
discretion or whether the statutory language requires parties' consent.
Bigby v. INS, 21 F.3d 1059 (11th Cir. 1994).
The Eleventh Circuit expressly cited to and disagreed with the
holding in Purba, finding instead that an Immigration Judge has the
discretion to hold a hearing by telephonic means and that party consent
is unnecessary, at least where credibility determinations are not at
issue. Bigby, 21 F.3d at 1062-64. See also U.S. v. McCalla, 821 F.
Supp. 363, 369 n. 11 (E.D.Pa. 1993) (``Assuming that the defendant in
this case did not consent to holding the hearing by telephone, this is
of no moment * * * [the defendant] has demonstrated no prejudice
resulting from the use of the telephone such that he would have been
entitled to relief from deportation on appeal.'')
Commenters relied exclusively on the Ninth Circuit decision and, as
of the date of their comments, apparently were unaware of the Eleventh
Circuit's recent decision. Numerous commenters conceded that the
telephonic hearings currently conducted are procedurally effective and
convenient, citing as examples, detained aliens and attorneys who
practice some distance from the Immigration Court. However, commenters
asserted that telephonic and video electronic media hearings, as
contemplated by the proposed rule, would result in deprivations of
respondents' due process rights. The commenters argued that, in some
instances, this rule would deprive respondents of the opportunity to
present and inspect evidence and the right to cross-examine adverse
witnesses. They also stated that telephonic and video electronic media
hearings would impair the Immigration Judge's ability to assess
credibility. furthermore, commenters maintained that telephonic and
video electronic media hearings would handicap the communication
between non-English speaking respondents and their interpreters and
would handicap respondents' representation by counsel. In addition,
commenters noted that this rule would lead to disparate treatment in
the various circuits. Given these perceived harms, the commenters
suggested that the Agency either withdraw the telephonic/video
electronic media hearing provision or modify it to be consistent with
Purba by requiring party consent.
In response to the commenters' due process concerns, the Agency has
modified the rule's telephonic hearing provision. The final rule
requires that parties consent to telephonic procedures which are full
evidentiary hearings on the merits. Consequently, the parties will have
an opportunity to elect an in-person hearing at a critical juncture.
The final rule, however, distinguishes between telephonic and video
electronic media hearings. The final rule does not require that parties
consent to video electronic media hearings of any kind. Video
electronic media hearings are completely within the discretion of the
Immigration Judge. The sophistication of modern video electronic media
coupled with the prudent use of Immigration Judge discretion should be
sufficient to preserve the integrity of the procedure and the due
process rights of the parties.
The final rule, furthermore, retains the proposed rule's provision
recognizing the Immigration judge's discretion to conduct hearings
telephonically and by video electionic media when such proceedings are
not contested, full evidentiary merit hearings. Judicial discretion
will ensure that telephonic and video electronic media hearings will be
conducted only as appropriate.
Althought his rule probably will result in disparate treatment
among the circuits, this situation is neither unusual nor prohibited in
our federal system. The Immigration Judges in the
[[Page 26353]] geographical confines of the Ninth Circuit currently
follow Purba and will continue to follow the law of that circuit.
Commenters also raised practical concerns with telephonic and video
electronic media hearings. Given the nature of immigration proceedings,
they correctly note that parties are often unable to communicate
proficiently in the English language. These comments posit that
telephonic and video electronic media hearings would further impair
communication. The caliber of today's technology, the requirement for
party consent in critical telephonic merit hearings, the prudent use of
Immigration Judge discretion, and the availability of procedural
vehicles for review of Immigration Judge decisions sufficiently
safeguard non-English speakers from potential prejudice.
The final rule codifies some of the current practices of
Immigration Judges holding telephonic hearings at their discretion and
extends these practices to video electronic media hearings. The final
rule also codifies a limitation on Immigration Judge discretion to
conduct certain telephonic hearings. The final rule allows
implementation of modern technology in order to increase procedural
efficiency while protecting parties' due process rights. The rule
assists the Agency in carrying out the country's immigration policy in
an equitable and productive manner.
The final rule also makes minor technical changes in paragraph 9a)
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. The Attorney General has
determined that this rule is not a significant regulatory action under
Executive Order No. 12866, Sec. 3(f), and accordingly this rule has not
been reviewed by the Office of Management and Budget. 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 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 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. In addition, in
absentia hearings may be held pursuant to sections 1252(b) and 1252b(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 may conduct hearings in the absence
of the parties and 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, knowingly,
and intelligently entered into a stipulated request for an order of
deportation or exclusion. The stipulation document 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 excludability as charged;
(3) 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 deportation, or any other
possible relief under the Act;
(4) A designation of a country for deportation under 8 U.S.C.
1253(a);
(5) A concession to the introduction of the written statements of
the respondent/applicant as an exhibit to the record or proceedings;
(6) 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;
(7) 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
(8) A waiver of appeal of the written order of deportation or
exclusion.
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(b) of this part.
(c) Telephonic or video electronic media hearing. An Immigration
Judge may conduct hearings via video electronic media or by telephonic
media in any proceeding under 8 U.S.C. 1226, 1252, or 1256, except that
contested full evidentiary hearings on the merits may be conducted by
telephonic media only with the consent of the alien.
Dated: May 8, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-12080 Filed 5-16-95; 8:45 am]
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