[Federal Register Volume 60, Number 164 (Thursday, August 24, 1995)]
[Rules and Regulations]
[Pages 43954-43962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20946]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 242 and 299
[INS No. 1672-94; AG Order No. 1984-95]
RIN 1115-AD76
Administrative Deportation Procedures for Aliens Convicted of
Aggravated Felonies Who Are Not Lawful Permanent Residents
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule establishes administrative deportation
procedures for aliens not admitted for permanent residence and not
statutorily eligible for any relief from deportation who have been
convicted of aggravated felonies. This regulation is being promulgated
to implement the statutory measure eliminating the requirement for a
hearing before an Immigration Judge and limiting judicial review. While
incorporating procedural safeguards, it will expedite the deportation
process in certain cases involving aliens who have committed serious
criminal offenses.
EFFECTIVE DATE: This rule is effective September 25, 1995.
FOR FURTHER INFORMATION CONTACT: Leonard C. Loveless, Detention and
Deportation Officer, Immigration and Naturalization Service, 425
Street, NW., Washington, D.C. 20536, Telephone (202) 514-2865.
SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service
(``the Service'') published a proposed rule on March 30, 1995, at 60 FR
16386. This final rule, which incorporates changes based on the
comments received on the proposed rule, establishes an expedited
administrative deportation procedure for aliens who have committed
aggravated felonies and who are not lawful permanent residents.
Congress authorized such a procedure in section 130004 of the Violent
Crime Control and Law Enforcement Act of 1994, Public Law 103-322,
which amended section 242A of the Immigration and Nationality Act
(``the Act''), effective September 14, 1994. (The Immigration and
Nationality Technical Corrections Act of 1994, Public Law 103-416,
enacted October 25, 1994, made minor technical changes to section
242A.) Section 242A(b)(4) of the Act authorizes the Attorney General to
implement an expedited deportation procedure that eliminates hearings
before Immigration Judges for certain aliens convicted of serious
criminal
[[Page 43955]]
offenses. Section 242A(b)(3) provides that aliens subject to this
administrative deportation procedure shall be entitled to limited
judicial review upon filing of a petition for review within 30 days
after a Final Administrative Deportation Order is issued.
Before enactment of Public Law 103-322, all deportation and
exclusion proceedings were required to be conducted before an
Immigration Judge pursuant to section 242(b) of the Act (except in the
case of certain security-related cases, Visa Waiver nonimmigrants,
stowaways, and crewman violators). By enactment of Public Law 103-322,
Congress authorized a more streamlined deportation process for aliens
who have been convicted of aggravated felonies and who are not lawful
permanent residents. Section 242A(b)(4) requires the Attorney General
to prescribe regulations for such expedited proceedings. This final
rule authorizes district director or chief patrol agent to issue a
Final Administrative Order of Deportation in accordance with section
242A(b) of the Act. Under section 242A(b)(2)(B), the administrative
procedure can be used only if an alien does not satisfy the statutory
conditions that would make the alien eligible for possible relief from
deportation under the provisions of the Act.
The final rule requires the Service to afford aliens certain
procedural protections during the administrative deportation process:
a. An alien will be given reasonable notice of the charge of
deportability on Form I-851, Notice of Intent to Issue a Final
Administrative Deportation Order. The Notice must set forth allegations
of fact and conclusions of law establishing that the alien is not a
lawful permanent resident, is deportable under section 241
(a)(2)(A)(iii) of the Act (relating to conviction for an aggravated
felony), and is not statutorily eligible for relief from deportation.
b. The charge of deportability must be supported by clear,
convincing, and unequivocal evidence.
c. An alien will be afforded the opportunity to be represented by
counsel in the deportation proceedings at no expense to the Government
and will be provided a list of available free legal services.
d. An alien will be afforded a reasonable opportunity to inspect
the evidence supporting the charge, and to rebut the charge within 10
days, with an extension granted by the district director or chief
patrol agent for good cause shown
e. The person who renders the final decision will not be the same
person who issues the charge.
f. A record of the proceedings must be maintained for judicial
review.
g. An alien is able to seek review of the final order by filing a
petition for judicial review within 30 days.
The Service cannot take action to commence the administrative
deportation proceedings unless there is evidence establishing the
statutory preconditions for deportation. If an alien appears to be
statutorily eligible for relief from deportation, the Service will not
commence proceedings under section 242A(b) of the Act.
An alien may obtain judicial review of a Final Administrative
Deportation Order by filing a petition for review in accordance with
section 106 of the Act. Such review, however, is limited under section
106(d) to: (1) Whether the person is in fact the alien described in the
order; (2) whether the person was not lawfully admitted for permanent
residence at the time at which deportation proceedings commenced; (3)
whether the person is not eligible for any relief from deportation; (4)
whether the alien has been convicted of an aggravated felony and such
conviction has become final; and (5) whether the alien was afforded the
procedures required by section 242A(b)(4) of the Act.
Section 242(a)(2) of the Act requires the Service to take into
custody any alien who has been convicted of an aggravated felony, upon
the alien's release from incarceration. An alien who has been lawfully
admitted may be released from the Service's custody if the alien
demonstrates to the satisfaction of the Attorney General that the alien
is not a threat to the community and is likely to appear for any
scheduled proceedings. The Attorney General may not release from
custody any alien who has not been lawfully admitted. An alien can seek
review of a custody determination by filing a writ of habeas corpus
with the district court.
The final rule differs from the proposed rule in the following
respects: The rule amends 8 CFR 242.25(b)(2) by adding subparagraph
(iii) to require the Service to provide a list of free legal-aid
services to an alien in conjunction with the Notice of Intent. The
final rule also amends 8 CFR 242.25(b)(2) by adding subparagraph (iv)
to require the Service either to provide the alien a written
translation of the Notice of Intent or to explain the contents of the
Notice of Intent in the alien's native language or in a language the
alien understands. The final rule also amends 8 CFR 299.1 by adding the
entries for Forms I-851 (Notice of Intent to Issue a Final
Administrative Deportation Order) and I-851A (Final Administrative
Deportation Order) to the listing of forms, to ensure that Service
personnel and the public are aware of these new forms and their proper
edition dates. The rule also makes non-substantive changes to the
provisions of the proposed rule for clarification.
In response to the proposed rule, the Service received several
comment letters and memoranda of law from various independent
attorneys, law enforcement officials, and legal defense organizations.
The following sections summarize the comments and explain the revisions
adopted.
The comments principally focused upon the following topics: aliens'
entitlement to due process; the absence of an ``in person'' hearing in
the administrative deportation procedure; the competence of the
deciding Service officer; the complexity of determining whether an
alien has been convicted of an ``aggravated felony'' or is entitled to
relief from deportation; the form and content of the notice provided to
the alien; the deadlines imposed upon the alien for responding to the
Notice of Intent; aliens' opportunity to obtain counsel; aliens'
opportunity to rebut charges; the impartiality of the deciding Service
officer; the risk of deportation of United States citizens or lawful
permanent residents; the lack of review of the deciding Service
officer's decision by an Immigration Judge or by the Service's General
Counsel; and the termination without prejudice of Immigration Judge
proceedings when it appears that an alien is subject to administrative
proceedings under section 242A(b) of the Act.
1. Procedural Due Process in the Absence of an In-Person Hearing
Comments: Several commenters contended that the proposed rule
violated constitutional requirements of procedural due process. In
particular, the commenters argued that the process is constitutionally
inadequate because of the failure to provide an in-person hearing
before the deciding Service officer.
Response and Disposition: Congress decided to permit expedited
deportation procedures for a certain class of aliens with respect to
whom the decision to deport typically is straightforward and not
subject to discretionary or equitable considerations. Because
deportation of such aliens involves no discretionary factors, and
because there rarely will be any factual disputes bearing upon
deportability that cannot be resolved
[[Page 43956]]
through documentary evidence, a testimonial hearing for such aliens
rarely if ever will serve a useful purpose. Accordingly, Congress
authorized the ``[e]limination of [a]dministrative [h]earing[s]'' for
such aliens. Public Law 103-322, Section 130004(a), 108 Stat. 2026. The
Service is merely implementing this congressional decision. Both the
statute and the rule provide all the process that is due.
It is well established that the Fifth Amendment entitles aliens to
due process of law in deportation proceedings. See Reno v. Flores, 113
S. Ct. 1439, 1449 (1993). As the Supreme Court explained in Landon v.
Plasencia, 459 U.S. 21, 34 (1982), whether deportation procedures
satisfy due process depends upon three factors: (i) The interest at
stake for the alien; (ii) the risk of an erroneous deprivation of the
interest through the procedures used and the probable value of
additional or different procedural safeguards; and (iii) the interest
of the government in using the given procedures rather than additional
or different procedures. As these three factors suggest, the
constitutional sufficiency of procedures provided in any particular
situation is dependent on context; it will vary with the particular
circumstances, and what is sufficient for one type of deportation
determination may not be sufficient for another. Landon, 459 U.S. at
34-35. In the context of deportation of aliens who are aggravated
felons and who are not lawful permanent residents, consideration of the
three factors compels the conclusion that the procedures provided in
this rule satisfy due process.
With respect to the first factor, the Service recognizes that the
interest at stake for the alien--remaining in the United States--can be
substantial. An alien stands to lose the right ``to stay and live and
work in this land of freedom,'' Landon, 459 U.S. at 34, and may lose
the right to rejoin his or her immediate family, id. However, the
aliens covered by this rule have somewhat lesser cognizable interests
than aliens who are either permanent lawful residents, or who are not
aggravated felons, or both. The aliens in question, because they will
either have been admitted on a temporary basis or will have entered the
country unlawfully, will not have ``develop[ed] * * * ties'' to the
United States, see Landon, 459 U.S. at 32, equivalent to those enjoyed
by permanent resident aliens. Moreover, this discrete class of aliens
has demonstrated a disregard for the laws of the United States, as
evidenced by their aggravated felony convictions. Those aliens who have
been incarcerated will already have had their ties to this country
diminished as a result; and even aliens who originally had been
lawfully admitted should have less of an expectation to those ties
because, by virtue of their commission of an aggravated felony, they
will have failed to fulfill the conditions under which they gained
entry and under which they were entitled to developed such ties.
As to the third factor in the due process calculation, the
government's interest in ensuring expedited deportation of this class
of aliens is substantial. To begin with, it ``weighs heavily in the
balance'' that control of immigration matters ``is a sovereign
prerogative.'' Landon, 459 U.S. at 34. In addition, the government also
has a ``weighty'' interest ``in efficient administration of the
immigration laws.'' Id. Considerable weight must be given to ``the
administrative burden and other societal costs that would be associated
with requiring * * * an evidentiary hearing upon demand in all cases.''
Mathews v. Eldridge, 424 U.S. 319, 347 (1976).
With regard to ``the administrative burden,'' the interest of the
government and the public ``in conserving scarce fiscal and
administrative resources'' is critical. Mathews, 424 U.S. at 348. The
administrative process encouraged by Congress and established by this
rule addresses Congress' concern that aliens who are serious criminal
offenders have not heretofore been deported swiftly. Presently, without
the expedited proceedings provided by this rule, many of these aliens,
particularly those who serve short sentences for their convictions,
remain in the custody of the Service for prolonged periods. Congress
recognized that the present hearing procedure, with its ``repeated
appeals,'' ``can consume several years.'' 139 Cong. Rec. E749 (Mar. 24,
1993) (statement of Rep. McCollum). The cost of incarcerating these
aliens during that period is substantial, and Congress authorized the
expedited deportation procedures in large part to ameliorate that cost.
Id. See also 140 Cong. Rec. S3068 (Mar. 16, 1994) (statement of Sen.
Roth). The expedited procedure also serves to address ``other societal
costs.'' Mathews, 424 U.S. at 347. Because aliens presently can invoke
the more formal procedures, their custody continues for an extended
period. This exacerbates the ``problem of limited detention capacity''
that the Service faces, 139 Cong. Rec. E749 (Mar. 24, 1993) (statement
of Rep. McCollum), and permits alien felons extended opportunity to
commit further crime in this country. See 140 Cong. Rec. S3068 (Mar.
16, 1994) (statement of Sen. Roth).
Finally, with respect to the second due process factor, there is
little risk that the administrative procedures established by this
rule--in particular, the lack of an in-person hearing--will result in
an erroneous deprivation of aliens' interests, and the probable value
of additional or different procedural safeguards is minimal, at best.
It is worth noting, as an initial matter, that a number of aliens
who are aggravated felons and who are not lawful permanent residents
may choose not to contest deportation, since such deportation is based
on objective, nondiscretionary criteria for aliens who fall within the
class covered by section 242A of the Act.
Some aliens will, however, challenge deportation under section 242A
of the Act; and due process requires that in any deportation
proceeding, an alien must be entitled to notice of the nature of the
charge and ``a fair opportunity to be heard'' on the charge. Kwong Hai
Chew v. Colding, 344 U.S. 590, 597-98 (1953). As in other contexts,
``[t]he fundamental requirement of due process'' in a deportation
proceeding ``is the opportunity to be heard `at a meaningful time and
in a meaningful manner.' '' Mathews, 424 U.S. at 333 (citation
omitted). See, e.g., Rafeedie v. INS, 880 F.2d 506, 524 (D.C. Cir.
1989). An alien must, therefore, be apprised of clearly defined
charges, have a fair opportunity to present evidence in his or her
favor, and have the right to inspect the evidence on which the matter
is to be decided. See, e.g., Kaczmarczyk v. INS, 933 F.2d 588, 595-96
(7th Cir.), cert. denied, 502 U.S. 981 (1991). Due process in the
deportation context does not, however, require the same procedural
protections as would be provided in a criminal trial, see Dor v.
District Director, 891 F.2d 997, 1003 (2d Cir. 1989), nor does it
automatically dictate and opportunity for an alien to be heard upon a
regular, set occasion, and according to the forms of judicial
procedure; instead, due process merely requires that an alien be given
an opportunity to be heard ``that will secure the prompt, vigorous
action contemplated by Congress, and at the same time be appropriate to
the nature of the case.'' Yamataya v. Fisher, 189 U.S. 86, 101 (1903).
An alien's due process rights to be heard and to defend are
protected by this rule. An alien will have been questioned by an
immigration officer, and will be given reasonable notice of the
charges, the right to counsel, and a reasonable opportunity to inspect
the evidence and rebut the charges. An
[[Page 43957]]
alien can submit whatever evidence he or she wishes to rebut the
charges, and the deportation decision will be made by an immigration
official other than the official who issues the charging document. The
burden of proof is upon the Service to establish deportability by
clear, convincing, and unequivocal evidence. The decision is subject to
judicial review by the court of appeals on a petition for review.
The fact that an in-person hearing before the deciding Service
officer typically will be unavailable under the administrative
proceedings does not automatically result in a denial of due process.
To begin with, in the usual case the alien will already have had a
face-to-face interview, when the Service takes into custody or
otherwise first encounters the alien. During such an interview, the
investigative officer may take a sworn statement or affidavit from the
alien and then complete Form I-213, Record of Deportable Alien. See 8
U.S.C. 1357(b); 8 CFR 287.5(a). The results of this interview typically
will form a basis for both the initiation of administrative deportation
proceedings and the charge of deportability; thus, the alien has an
opportunity at that initial interview to rebut the facts upon which
administrative deportation would be predicated. Little, if anything,
would be gained by requiring another interview before the deciding
Service officer. And, since many aliens in administrative deportation
proceedings will be detained by other law enforcement agencies, a
requirement of another ``in-person'' hearing would result in further
delays by requiring Service officers to travel to remote locations to
repeat the interview with each alien.
Even more significantly, in a deportation proceeding under this
rule the risk of making an erroneous decision will be minimal, and the
value of an in-person hearing would be speculative at best. The only
issues to be decided in such proceedings are ``relatively
straightforward matters,'' Califano v. Yamasaki, 442 U.S. 682, 696
(1979), namely: alienage, lawful permanent resident status, conviction
of an aggravated felony, and statutory eligibility for relief. The
Service can determine alienage, lawful permanent resident status, and
eligibility for relief based solely upon documentary evidence, such as
information contained in the alien registration file and computer
databases, and can supplement that evidence with the statement of the
alien at the initial interview. The Service can determine whether the
alien has been convicted of an aggravated felony based upon the record
of conviction. Most importantly, unlike many determinations that can
arise in other types of deportation proceedings, these determinations
must be made by the Service without consideration of any equities or
discretionary factors. Accordingly, there are unlikely to be any
``issues of witness credibility and veracity,'' Mathews, 424 U.S. at
343-44, that might justify an in-person, testimonial hearing.
The Supreme Court has held that due process does not require an in-
person, testimonial hearing in front of the deciding official where the
decision in question ``will turn, in most cases, upon `routine,
standard, and unbiased' '' documentary evidence. Mathews, 424 U.S. at
344 (citation omitted). Where the facts on which the ultimate decision
are to be based are ``sharply focused and easily documented,'' id. at
343, as in the case of aliens who have committed aggravated felonies
and who are not permanent resident aliens, more formal testimonial
hearings are not constitutionally required. The facts on which
deportation will depend for these aliens are ``relatively
straightforward matters,'' Califano, 442 U.S. at 696, and are
``typically more amenable to written than to oral presentation,''
Mathews, 424 U.S. at 345. See also id. at 344 n.28.
Several commenters suggested that there may be certain cases in
which testimony will be necessary to determine such issues as alienage
or possible statutory eligibility for relief from deportation. Because
of the nature of these determinations, the Service believes that the
cases will be few and far between in which such determinations cannot
be made on the basis of documentary evidence. But even if there are
such isolated cases, that would not mean that the rule itself is
unconstitutional.
To begin with, although the regulation does not require an in-
person hearing, the deciding Service officer can request further
evidence after the alien's initial submission, if that officer
determines that such evidence will aid in the decision. Under 8 CFR
242.25(d)(2)(ii), if the deciding Service officer finds that the
alien's written response raises a genuine issue of material fact
regarding the preliminary findings, the officer may request additional
evidence, as he or she may deem appropriate. Thus, if any testimony is
required, it can and should be heard.
More fundamentally, ``procedural due process rules are shaped by
the risk of error inherent in the truth-finding process as applied to
the generality of cases, not the rare exceptions.'' Mathews, 424 U.S.
at 344. And ``[i]t would be inconsistent with that principle to require
a hearing * * * when review of [an alien's] written submission is an
adequate means of resolving all but a few * * * disputes.'' Califano,
442 U.S. at 696. If an alien believes that due process requires
additional protections because of the particular exigencies of his or
her case, the alien can raise the issue in the record of proceedings,
and the alien thereafter can, in appropriate circumstances, seek
judicial review to redress any alleged constitutional deprivation. But
the mere possibility of such as-applied due process challenges does not
justify the enormous cost that would be entailed in providing an in-
person hearing for every deportation determination. See Mathews, 424
U.S. at 909; Califano, 442 U.S. at 696. Therefore, the rule is not
susceptible to a ``facial challenge'' on procedural due process
grounds. Cf. Reno v. Flores, 113 S. Ct. at 1450-51 (because due process
would not be denied in the majority of cases, facial due process
challenge is rejected).
Accordingly, the provisions of the proposed rule requiring a
documentary record and not requiring an in-person hearing have been
adopted without substantive amendment in the final rule.
2. Reasonable Notice
Comments: Several commenters stated that the Notice provided to the
alien pursuant to 8 CFR 242.25(b)(2) should advise the alien of
eligibility for relief, be translated into the alien's native language
if he or she is not proficient in English, and be explained to the
alien. Other commenters stated that aliens often do not understand that
nature of the proceedings; that aliens may be incompetent or mentally
ill; and that proper notice should include more information regarding
the law and legal rights. One comment stated that if the alien receives
the Notice while detained, the regulation should provide that the alien
be given writing materials and postage stamps for a response.
Response and Disposition: In conformity with the statute and the
final rule, the Notice of Intent to Issue a Final Administrative
Deportation Order (Form I-851) will contain legally sufficient factual
allegations, conclusions of law, charge of deportability, and advice to
the respondent (similar to an Order to Show Cause). These elements of
notice satisfy due process requirements. The Notice will instruct the
alien to identify which findings supporting deportation he or she is
challenging, if any, and to corroborate any challenge with
documentation or other evidence. To facilitate the process, page two of
the Notice of Intent also will provide easy-to-understand boxes that an
alien
[[Page 43958]]
should check to indicate the nature of the alien's response. It would
be inappropriate for the regulation to recommend which kinds of
evidence an alien should choose to present in defending against the
charge or in presenting a claim to relief, given the variety of
evidence that might be germane to the determinations at issue.
Both the Act and the regulations set forth the various forms of
relief that may or may not be available in deportation proceedings.
Moreover, under the rule, aliens will have a reasonable opportunity to
obtain counsel of their choosing who may assist them in determining
whether relief is available. If an alien submits evidence supporting a
prima facie claim that he or she may be statutorily eligible for some
relief from deportation, Sec. 242.25(d)(2)(iii) of the rule requires
the Service to terminate the administrative proceedings and, where
appropriate, to initiate proceedings before an Immigration Judge. If an
alien appears to satisfy the statutory conditions for eligibility for
relief from deportation, the Service would not then have jurisdiction
to commence or to continue proceedings under 242A(b) of the Act. In
light of these protections, the proposed rule will not be changed to
require that the Service advise the alien of the various forms of
statutory eligibility for relief.
The Form I-851 (Notice of Intent) will advise respondent aliens of
the availability of a list of free legal services. The rule is amended
to require the Service to provide such a legal aid list in conjunction
with the Notice of Intent. Service of the Notice must, in accordance
with 8 CFR 292.5(a), be made upon an attorney or representative of
record, if the alien is so represented. The Notice of Intent will
clearly provide the address to which the alien must send a response.
The Service agrees that it is important that the alien understand
the Notice of Intent. Therefore, to enhance fairness and ensure that
the notice of the charges is reasonable, the proposed rule is amended
to add subparagraph (iv) to 8 CFR 242.25(b)(2), which will require that
the Service either provide the alien a written translation of the
Notice of Intent or explain the contents of the Notice of Intent in the
alien's native language or in a language that the alien understands.
The Service agrees that, in certain particular cases, an alien may
be unable to read or understand the nature of proceedings because of
his or her incompetence or mental illness. This rule provides a
reasonable opportunity for an alien to seek the services of counsel, a
relative, or friend. Providing further protections in a particular
proceeding where circumstances warrant such protections will be the
responsibility of the deciding Service officer, who may, for example,
schedule an interview, where appropriate. The Service officer's
decision on what, if any, additional notice and/or procedure to provide
the alien will be subject to judicial review. The possibility that the
Notice of Intent might not suffice to provide constitutionally adequate
notice in rare circumstances does not suffice to call into question the
constitutionality of the rule itself, which will provide
constitutionally sufficient notice in the vast majority of cases. See
Mathews, 424 U.S. at 909; Califano, 442 U.S. at 696.
3. Fair Opportunity To Respond to the Notice and To Inspect and Rebut
the Evidence Supporting Deportation
Comments: Several commenters stated that the proposed rule would
not provide sufficient time for an alien to respond to the Notice, and
suggested that the response period be changed to one month. Commenters
state that respondents who are incompetent, mentally ill, or who do not
understand the nature of the proceedings, may need more time to obtain
counsel and to rebut the charge. The comments outlined the numerous
obstacles that detained aliens may face, such as: language impediments;
mail delays; an inability to communicate with family, attorneys, and
potential witnesses; lack of access to law libraries or writing
materials; and difficulty in producing affidavits, identification
documents, or birth records. One commenter stated that requiring the
response to be supported by an affidavit is unnecessary because the
regulation can provide that any response shall be considered to be made
under oath. Finally, some commenters stated that the record of
proceeding should be provided automatically to all aliens, rather than
only upon an alien's request.
Response and Disposition: The Service believes that the proposed
rule provides a fair opportunity for aliens to inspect evidence and
rebut charges of deportability. Pursuant to 8 CFR 242.25(c)(2), ``[i]f
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 then has ten additional days
following service of the Government's evidence (thirteen days if
service is by mail), to furnish a final response in accordance with 8
CFR 242.25(c) (1)-(2). Pursuant to 8 CFR 242.25(d)(2)(ii)(B), if, after
the alien's rebuttal of the Notice, the deciding Service officer
considers additional evidence from a source other than the alien, that
evidence will also be provided to the alien and still another extension
of time to respond shall be given. Thus, these regulations already
provide respondents ample opportunity to inspect all evidence relied
upon by the Government and contained in the record of proceeding.
The Service believes that any further increase in the time periods
for response would contravene Congress' intent that the Service
expeditiously adjudicate the deportation cases of the serious criminal
offenders described under section 242A(b) of the Act. Many aliens in
this class, particularly in county and local jails, are inmates who are
incarcerated less than a year, and frequently less than six months.
Expeditious proceedings under section 242A(b) of the Act will prevent
``spillover'' detention of these short-term inmates into the Service's
detention, thereby relieving the aliens of further incarceration while
saving substantial costs to the Service and to the public. Nonetheless,
if an alien makes a timely written request for more time and explains
the reasons for doing so--for instance, that the alien needs to contact
family members or potential witnesses--the deciding Service officer may
grant an extension for the alien to file a response under 8 CFR
242.25(c)(1). The deciding Service officer must ensure fairness in the
adjudicative process. Accordingly, the Service believes that this rule
provides sufficient opportunity for aliens to respond to the Notice.
The Service believes that the requirement that the alien request
access to the evidence in order to receive it is constitutional and
salutary. As explained above, it is unlikely that the majority of
aliens covered by the administrative proceedings will contest their
deportability. This fact counsels against expending the considerable
cost and burden of sending all evidence to all aliens in the first
instance. Those aliens who do wish to contest deportation readily can
receive the evidence upon a simple request. Moreover, section 291 of
the Act expressly provides that in presenting proof of time, manner,
and place of entry into the United States, the alien ``shall be
entitled to the production of his visa or other entry document, if any,
and of any other documents and records * * * pertaining to such entry
in the custody of the Service.'' The Service must therefore produce any
such documents that are in its possession in accordance with that
section of the Act.
[[Page 43959]]
The Service agrees that an alien should not be required to submit
an accompanying affidavit with his or her response. It is incumbent
upon the alien to choose his or her own corroborating evidence in
rebutting a charge. Accordingly, Sec. 242.25(c)(2) has been modified to
provide that the alien should submit with the response ``affidavit(s),
documentary evidence, or other specific evidence supporting the
challenge.''
4. Impartial Fact-Finder
Comments: Several commenters stated that the rule was unfair or
unconstitutional because it will permit the issuing Service officer and
the deciding Service officer both to be enforcement officials who may
be agents of the same party, such as a District Director. One commenter
recommended that the rule should explicitly prohibit the deciding
Service officer from engaging in ex parte communication with the
issuing Service officer or otherwise considering evidence outside the
record, because due process requires that the decisionmaker make an
independent evaluation and consider only evidence on the record that
the alien has had a fair opportunity to rebut. Another commenter urged
that the initiation of proceedings under the rule be subject to review
by the Service's General Counsel, and another expressed concern that
the rule does not provide adequate checks against Service misconduct.
Response and Disposition: Congress has provided for administrative
deportation proceedings to be conducted without a hearing before an
Immigration Judge. The officers of the Service are in the best position
to perform such proceedings. The statute mandates that the Final
Administrative Deportation Order not be issued by the same person who
issues the Notice of Intent, and the rule reflects this protection.
The Service believes that the rule reasonably ensures that
decisions are made by an impartial fact-finder. In order to prevent any
``blurring'' of investigative and adjudicative functions, the statute
and the rule expressly forbid the ``deciding'' officer from being the
same person who issues the charging document. It has been clear for at
least 40 years that due process is not violated in deportation
proceedings simply because the deciding official is subject to the
control of officials charged with investigative and prosecuting
functions. Marcello v. Bonds, 349 U.S. 302, 311 (1955).
Since the Service's attorney work force is available to provide
legal advice to Service personnel, there is no need in the regulation
to require General Counsel review of administrative proceedings.
The deciding Service officer is authorized under 8 CFR 242.25(d) to
issue an order of deportation only if the ``evidence in the record of
proceeding'' establishing deportability is clear, convincing and
unequivocal. Thus, that officer is duty-bound to make an independent
evaluation only of the evidence contained in the four corners of the
record of proceeding, and may not rely upon evidence outside the record
of proceeding. In addition, since the deciding Service officer is not
authorized to make discretionary determinations on eligibility for
relief in section 242A(b) proceedings, he or she may not consider any
discretionary factors. Accordingly, the proposed rule has not been
modified.
5. Termination of Immigration Judge Proceedings Without Prejudice to
the Service
Comment: The proposed rule provides that the Service may request
that proceedings before an Immigration Judge be terminated so that
administrative deportation proceedings may be initiated. One commenter
stated that if the Government moves to terminate an Immigration Judge
proceeding commenced under section 242(b) of the Act, such termination
should be with prejudice to the Service because the Service should not
be allowed to ``forum shop'' and reinstate the deportation process in a
setting where the alien has fewer procedural protections.
Response and Disposition: The Service may initiate or continue
proceedings under this rule only if there is no evidence that an alien
is prima facie eligible for relief. Thus, for example, if after a
Notice of Intent is issued, the Service discovers that an alien appears
to be statutorily eligible for relief from deportation, then, pursuant
to 8 CFR 242.25(d)(2)(iii), the Service must terminate administrative
deportation proceedings and, where appropriate, initiate deportation
proceedings under section 242(b) of the Act.
Conversely, if the Service discovers that an alien who has been
placed in proceedings before an Immigration Judge in fact is amenable
to proceedings under section 242A(b) of the Act, it would implement
Congress' intent for the Service to exercise its prosecutorial
discretion to move to terminate the Immigration Judge proceedings in
order to expedite the deportation process. In such a case, the alien's
eligibility for expedited deportation renders the Immigration Judge
proceedings unnecessary. Transfer to administrative proceedings in such
a case would not be ``forum shopping''; rather, it would simply be a
move to a more efficient and appropriate forum, in accord with
Congress' intent that administrative proceedings be used for aliens who
have committed aggravated felonies and who are not lawful permanent
residents. There is, therefore, no reason that the termination of
Immigration Judge proceedings should be with prejudice to the Service,
particularly since the Immigration Judge will have made no decision on
the substantive issues of deportability under section 241 of the Act or
relief from deportation. The final rule therefore will remain
unchanged.
6. Lack of Administrative Appeal
Comment: A commenter cautioned that execution of Final
Administrative Deportation Orders should not be completed without
allowing appeal to the Board of Immigration Appeals (``BIA''), to
permit an independent review of the evidence by the BIA. This commenter
stated that such appeals would not delay deportations because appeals
would be completed while the alien is serving his or her sentence.
Another commenter stated that, by eliminating any meaningful
administrative hearing or review, the regulations will place an added
burden on federal courts, which will be forced to decide issues more
appropriately resolved on the administrative level.
Response and Disposition: Congress authorized administrative
deportation in order to streamline deportation proceedings for a
certain class of aliens with respect to whom the decision to deport
typically is straightforward and not subject to discretionary or
equitable considerations. The rule affords the alien the right to
petition for judicial review on limited issues, and such a petition
will be entertained by a federal appellate court, which is an
independent tribunal with jurisdiction to decide any due process claims
properly raised. As noted above, many of the inmates described by the
provisions of section 242A(b) of the Act serve short sentences. County
and city jail terms of less than a year, and frequently less than six
months, are often too short to permit Institutional Hearing Program
hearings prior to Service detention of such aliens. This rule permits
the Service to serve Notices of Intent to issue a Final Administrative
Deportation Order upon short-term inmates and more rapidly adjudicate
their cases before the inmates are released from incarceration. The
rule
[[Page 43960]]
thus prevents costly detention at Service expense and appropriately
eliminates a layer of administrative hearings and administrative
appeals, which will in turn make it more likely that deportation
proceedings will be completed before inmates' release from
incarceration. In addition, some aliens convicted of aggravated
felonies who have completed their sentences might not be incarcerated
when first encountered by the Service. The Service must detain and hold
in custody such aliens, at great expense. The rule reduces the length
of detention in those cases, as well. Allowing an appeal to the BIA
would undermine Congress' intent by recreating the undesirable cost,
delay and detention problems that prompted Congress to act in the first
instance to permit expedited deportation. Accordingly, the proposed
rule remains unchanged.
7. Ensuring That Responses Are Timely Included in Records of Proceeding
Comment: Two commenters expressed concern that, since many offices
of the Service are not in a position to process mail received on a
timely basis, the Service may not be able to include an alien's timely
responses in a record of proceeding in time to prevent the alien from
receiving a final order of deportation for failure to timely file a
response. The comments stated that, in such a case, the case should be
reopened.
Response and Disposition: The rule specifically requires the
Service to create and maintain a full record of proceeding in each
case. The Notice of Intent will facilitate the matching of responses to
the record of proceeding by providing the alien with the contact person
to whom the response must be submitted, and an address for that person.
Like any other court proceeding, Service personnel will be responsible
for matching documents to the record of proceeding for review and
adjudication by the deciding Service officer in the district or sector
where the charging document was issued.
The deciding Service officer is not precluded from correcting any
mistake discovered with respect to the timeliness of receipt of any
document, or any other mistake that is pertinent to the final decision.
To the contrary, the deciding Service officer may render whatever
ruling is deemed appropriate that is supported by the record in
carrying out his or her responsibilities as an adjudicator.
Furthermore, the integrity of the process in a particular case remains
subject to judicial review on a petition for review, based upon the
full record of proceeding.
8. Risk of Deporting U.S. Citizens, Permanent Residents, or Other
Aliens Ineligible for Deportation or Eligible for Relief From
Deportation
Comments: Several commenters stated that the process creates an
unacceptable risk of deporting a United States citizen or lawful
permanent resident alien. Commenters also questioned the training and
expertise of issuing Service officers, arguing that the issues of
aggravated felony conviction, derivative citizenship, and relief from
deportation are too complex and should be left to an Immigration Judge.
One commenter warned that Service officers may initiate expedited
proceedings against aliens who have a right to hearings before
Immigration Judges or who are citizens and are not aware of it, and the
Service will have no incentive to verify derivative citizenship. These
commenters even recommended that the Attorney General withdraw the
proposed rule for these reasons.
Response and Disposition: As previously stated, Congress authorized
administrative deportation for aliens who are aggravated felons and who
are not lawful permanent residents. The due process safeguards
incorporated in this rule are designed precisely to minimize the risk
of an erroneous determination of deportability, while ensuring
fairness. As explained above, ``procedural due process rules are shaped
by the risk of error inherent in the truth-finding process as applied
to the generality of cases, not the rare exceptions.'' Mathews, 424
U.S. at 344. Under this rule, the risk of making an erroneous decision
in the generality of cases is minimal. The questions of citizenship,
alienage, lawful permanent resident status, conviction for an
aggravated felony, and statutory eligibility for relief, are matters
that are well within the expertise and competence of Service officers
to decide. Indeed, pursuant to other provisions of the Act and other
regulations, immigration officers already regularly determine issues
germane to deportability, including: whether an alien is finally
convicted of an aggravated felony (for purposes of issuing charging
documents); acquisition of citizenship at birth; derivation of
citizenship; eligibility for adjustment of status or naturalization;
and eligibility for any of the forms of relief under the Act. Under
current law, district directors are authorized to adjudicate a variety
of applications for immigration benefits, including the authority to
grant or deny petitions for naturalization.
Because of the straightforward, nondiscretionary nature of the
determinations under this rule, there is no reason to believe that
United States citizens would face a greater risk of deportation before
the deciding Service officer than before an Immigration Judge. If,
after the Notice of Intent is issued, an alien appears to be
statutorily eligible for relief or raises a genuine issue of material
fact regarding the preliminary findings, then the deciding Service
officer must either seek additional evidence bearing on the disputed
issue, or terminate the administrative deportation proceedings.
9. Typographical and Other Non-Substantive Corrections
Comment: A commenter pointed out that the title for proposed 8 CFR
242.25(d)(iii) does not make sense as it presently reads.
Response and Disposition: The commenter is correct that the word
``Secretary'' in the heading of 8 CFR 242.25(d)(iii) is a typographical
error, and should read ``Statutory.'' Accordingly, the word
``Secretary'' is replaced by the word ``Statutory'' in the final rule.
The substantive text of the above section, nevertheless, was correct
and sufficiently clear to allow for meaningful comment on this
provision of the proposed rule. This final rule also makes other non-
substantive corrections to the language of the proposed rule.
10. Favorable Comments
Comment: One respondent, a metropolitan Chief of Police, pledged to
give this procedure his full support because it is a positive step in
dealing with the problems created by criminal undocumented aliens, a
growing and dangerous segment of the criminal population.
Response and Disposition: The Service agrees with the commenter
that the process under the rule will help combat criminal activity of
deportable aliens in many parts of the country, as Congress intended.
Attorney General Certifications
The Attorney General, in accordance with 5 U.S.C. 605(b), certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities.
This rule is not considered to be a ``significant regulatory
action'' within the meaning of section 3(f) of E.O. 12866, Regulatory
Planning and Review, and the Office of Management and Budget has waived
its review process under section 6(a)(3)(A).
This rule is not considered to have Federalism implications
warranting the
[[Page 43961]]
preparation of a Federalism Assessment in accordance with section 6 of
Executive Order 12612.
List of Subjects
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, part 242 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
1. The authority citation for part 242 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252a, 1252b, 1254, 1362; 8 CFR part 2.
2. In part 242, a new section 242.25 is added to read as follows:
Sec. 242.25 Proceedings under section 242A(b) of the Act.
(a) Definitions. As used in this section--Deciding Service officer
means a district director, chief patrol agent, or 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. 242.1(a) as authorized
to issue orders to show cause. Prima facie claim means a claim that, on
its face and consistent with the evidence in the record of proceeding,
demonstrates an alien's present statutory eligibility for a specific
form of relief from deportation under the Immigration and Nationality
Act (``the Act'').
(b) Preliminary consideration and Notice of Intent to issue a Final
Administrative Deportation Order; commencement of proceedings. (1)
Basis of Service charge. An issuing Service officer shall cause to be
served upon an alien a Notice of Intent to issue a Final Administrative
Deportation Order (Notice of Intent, Form I-851), 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;
(iii) Has been convicted (as demonstrated by one or more of the
sources listed in Sec. 3.41 of this chapter) of an aggravated felony
and such conviction has become final;
(iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and
(v) Does not appear statutorily eligible for any relief from
deportation under the Act.
(2) Notice. (i) Deportation proceedings under section 242A(b) of
the Act shall commence upon personal service of the Notice of Intent
upon the alien, as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of
this chapter. The Notice of Intent shall set for the preliminary
determinations and inform the alien of the Service's intention to issue
a Final Administrative Deportation Order (Final Administrative
Deportation Order, Form I-851A) without a hearing before an Immigration
Judge. This Notice shall constitute the charging document. The Notice
of Intent shall include allegations of fact and conclusions of law. It
shall advise that the alien: has the privilege of being represented by
counsel of the alien's choosing, at no expense to the Government, as
long as counsel is authorized to practice in deportation proceedings;
may inspect the evidence supporting the Notice of Intent; and may rebut
the charges within ten (10) calendar days after service of such Notice
(or thirteen (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 ten (10) calendar days of service
of the Notice of Intent (or thirteen (13) calendar days if service is
by mail), the country to which he or she chooses to be deported in
accordance with section 243 of the Act, in the event that a Final
Administrative Deportation Order is issued, and that the Service will
honor such designation only to the extent permitted under the terms,
limitations, and conditions of section 243 of the Act.
(iii) The Service shall provide the alien with a list of available
free legal services programs qualified under part 292a of this chapter
and organizations recognized pursuant to part 292 of this chapter,
located within the district or sector where the Notice of Intent is
issued.
(iv) 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
ten (10) calendar days from service of the Notice of Intent, or
thirteen (13) calendar days if service is by mail, to file a response
to the Notice. If the final date for filing such a response falls on a
Saturday, Sunday, or legal holiday, the response shall be considered
due on the next business day. In the response, the alien may: Designate
his or her choice of country for deportation; 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
Deportation 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, 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. If
the alien asserts that he or she is entitled to statutory relief from
deportation, the alien also should include with the response a
completed and signed application designed for the relief sought.
(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 ten
(10) calendar days following service of the Government's evidence
(thirteen (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 specific evidence supporting the challenge. If
the alien asserts that he or she is entitled to statutory relief from
deportation, the alien also should include with the final response a
completed and signed application designed for the relief sought.
(d) Determination by deciding Service officer. (1) No response
submitted or concession of deportability. If the deciding Service
officer does not receive
[[Page 43962]]
a timely response and the evidence in the record of processing
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 Deportation Order that states the reasons for the
deportation decision. The alien may knowingly and voluntarily waive in
writing the 30-day waiting period before execution of the final order
of deportation provided in paragraph (f) of this section.
(2) Response submitted. (i) Insufficient rebuttal; no prima facie
claim or 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, and that the alien has not
demonstrated a prima facie claim of eligibility for relief from
deportation under the Act, the deciding Service officer shall issue and
cause to be served upon the alien a Final Administrative Deportation
Order that states the reasons for the deportation decision.
(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 an order to show cause to initiate deportation proceedings
under section 242(b) of the Act. The deciding Service officer also may
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 ten (10) calendar days
of service of the additional evidence (or thirteen (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, and that the alien does not have a prima facie claim of
eligibility for relief from deportation under the Act, the deciding
Service officer shall issue and cause to be served upon the alien a
Final Administrative Deportation Order that states the reasons for the
deportation decision.
(iii) Statutory eligibility for relief; conversion to proceedings
under section 242(b) of the Act. If the deciding Service officer finds
that the alien is not amenable to deportation under section 242A(b) of
the Act or has presented a prima facie claim of statutory eligibility
for a specific form of relief from deportation, the deciding Service
officer shall terminate the expedited proceedings under section 242A(b)
of the Act, and shall, where appropriate, cause to be issued an order
to show cause for the purpose of initiating an Immigration Judge
proceeding under section 242(b) of the Act.
(3) Termination of proceedings by deciding Service officer. Only
the deciding Service officer may terminate proceedings under section
242A(b) of the Act, in accordance with this section.
(e) Proceedings commenced under section 242(b) of the act. In any
proceeding commenced under section 242(b) of the Act, if it appears
that the respondent alien is subject to deportation pursuant to section
242A(b) of the Act, the Immigration Judge may, upon the Service's
request, terminate the case and, upon such termination, the Service may
commence administrative proceedings under section 242A(b) of the Act.
However, in the absence of any such request, the Immigration Judge
shall complete the pending proceeding commenced under section 242(b) of
the Act.
(f) Executing final deportation order of deciding Service officer.
(1) Time of execution. Upon the issuance of a Final Administrative
Deportation Order, the Service shall issue a warrant of deportation in
accordance with 8 CFR 243.2; such warrant shall be executed no sooner
than 30 calendar days after the date the Final Administrative
Deportation Order is issued, unless the alien knowingly, voluntarily
and in writing waives the 30-day period. The 72-hour provisions of
Sec. 243.3(b) of this chapter shall not apply.
(2) Country to which alien is to be deported. The deciding Service
officer shall designate the country of deportation in the manner
prescribed by section 243(a) of the Act.
(g) Arrest and detention. At the time of issuance of a Notice of
Intent or at any time thereafter and up to the time the alien becomes
the subject of a warrant of deportation, the alien may be arrested and
taken into custody under the authority of a warrant of arrest issued by
an officer listed in Sec. 242.2(c)(1) of this chapter. Pursuant to
section 242(a)(2)(A) of the Act, the deciding Service officer shall not
release an alien who has not been lawfully admitted. Pursuant to
section 242(a)(2)(B) of the Act, the deciding Service officer may
release an alien who has been lawfully admitted if, in accordance with
Sec. 242.2(h) of this chapter, the alien demonstrates that he or she is
not a threat to the community and is likely to appear at any scheduled
hearings. The decision of the deciding Service officer concerning
custody or bond shall not be administratively appealable during
proceedings initiated under section 242A(b) of the Act and this
section.
(h) Record of proceeding. The Service shall maintain a record of
proceeding for judicial review of the Final Administrative Deportation
Order sought by any petition for review. The record of proceeding shall
include, but not necessarily be limited to: the charging document
(Notice of Intent); the Final Administrative Deportation Order
(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 or relief from deportation.
PART 299--IMMIGRATION FORMS
3. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
4. Section 299.1 is amended by adding the entries for Forms ``I-
851'' and ``I-851A'' to the listing of forms, in proper numerical
sequence, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-851 04-06-95 Notice of Intent to Issue Final Administrative
Deportation Order.
I-851A 04-06-95 Final Administrative Deportation Order.
* * * * *
------------------------------------------------------------------------
Dated: August 17, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-20946 Filed 8-23-95; 8:45 am]
BILLING CODE 4410-01-M
