[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Rules and Regulations]
[Pages 21039-21041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10548]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 245a
[INS No. 1321-91; AG Order No. 1964-95]
RIN 1115-AC18
Procedure for Automatic Termination of Temporary Resident Status
Upon Final Order of Deportation or Exclusion
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends existing regulations by providing, in
specified circumstances, for the automatic termination of temporary
resident status under provisions of the Immigration and Nationality
Act, as amended (Act), upon the entry of a final order of deportation
or exclusion. This amendment is necessary to avoid possible delays in,
or termination of, pending deportation and exclusion proceedings that
would result if the Immigration and Naturalization Service (INS) were
required to follow existing procedures for the termination of temporary
resident status. This amendment permits the expeditious deportation and
removal of aliens who hold temporary resident status and have been
convicted of an aggravated felony [[Page 21040]] or have been found to
be ineligible for admission into the United States for reasons that are
not waivable. This rule also prevents the release of dangerous criminal
aliens into society during deportation or exclusion proceedings.
EFFECTIVE DATE: This rule is effective May 31, 1995.
FOR FURTHER INFORMATION CONTACT:
Gerald S. Hurwitz, Counsel to the Executive Director, Executive Office
for Immigration Review, Suite 2400, Skyline Tower, 5107 Leesburg Pike,
Falls Church, Virginia 22041, telephone number (703) 305-0470 or David
Dixon, Chief Appellate Counsel, Immigration and Naturalization Service,
425 I Street, N.W., Room 6100, Washington, DC 20536, telephone number
(703) 756-6257.
SUPPLEMENTARY INFORMATION: The INS published a proposed rule on May 13,
1994 at 59 FR 24979. The proposed rule provided for automatic
termination of temporary resident status under provisions of the Act
upon the entry of a final order of deportation or exclusion. No
comments were received and no changes have been made by the INS in
preparing this final rule. This final rule will correct a procedural
anomaly that has resulted in the release of aggravated felons who hold
temporary resident status and which has impaired the ability of the INS
to deport those who, after obtaining temporary resident status, commit
deportable acts.
Matter of Medrano, Interim Decision #3138 (BIA September 10, 1990)
(Medrano), holds that the status of a temporary resident alien must
first be terminated pursuant to section 245A(b)(2) of the Act (8 U.S.C.
1255a(b)(2)) and in accordance with 8 CFR 245a.2(u) before any
deportation proceedings can be commenced. That interpretation leaves
the INS with conflicting mandates.
Medrano requires termination of temporary resident status before
apprehension and commencement of deportation proceedings against a
deportable alien, yet section 242(a)(2)(A) of the Act (8 U.S.C.
1252(a)(2)(A)) requires the INS to detain aggravated felons. Medrano
and 8 CFR 245a.2(u)(2) also grant more procedural rights to temporary
residents than to lawful permanent residents. Under Medrano and 8 CFR
245a.2(u)(2), the INS must terminate, as a condition precedent to the
commencement of deportation proceedings, the temporary resident status
of an alien who commits a deportable offense after he has acquired
temporary resident status. In contrast, permanent residents may be
deported upon commission of an aggravated felony without first having
their status terminated. This final rule, permitting deportation
proceedings prior to terminating temporary status, conforms with other
regulations currently in force with respect to automatic revocation of
status of Special Agricultural Workers. See 8 CFR 210.4(d).
Thus, in order to avoid any delay or termination of deportation or
exclusion proceedings that may be caused by invoking the termination
procedure prescribed in 8 CFR 245a.2(u)(2) and to permit the
expeditious deportation and removal of aggravated felons as required by
section 242A(d) (8 U.S.C. 1252a(d)) and 242(i) (8 U.S.C. 1252(i)) of
the Act, a new paragraph (ii) has been added to section 245a.2(u)(2).
The new paragraph provides for the institution of deportation or
exclusion proceedings and the automatic termination of temporary
resident status upon the entry of a final order of deportation or
exclusion in cases where: (1) The ground for deportation arises under
section 241(a)(2)(A)(iii) of the Act (8 U.S.C. 1251(a)(2)(A)(iii))
(convicted aggravated felons); (2) the ground of deportation arises
after the acquisition of temporary resident status, and that ground may
not be waived pursuant to section 245A(d)(2)(B)(ii) of the Act (8
U.S.C. 1255a(d)(2)(B)(ii)) (relating to certain crimes, drug offenses,
national security and likelihood of becoming a public charge); or (3)
the alien seeks admission and the ground of inadmissibility may not be
waived pursuant to section 245A(d)(2)(B)(ii) of the Act (8 U.S.C.
1255a(d)(2)(B)(ii).
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities. It will affect certain individual
aliens, not small entities. This is not a significant rule within the
meaning of section 3(f) of Executive Order 12866, nor does this rule
have Federalism implications warranting the preparation of a Federalism
Assessment in accordance with Executive Order 12612.
List of Subjects in 8 CFR Part 245a
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, part 245a of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF
THE IMMIGRATION AND NATIONALITY ACT
1. The heading for part 245a is revised to read as set forth above.
2. The authority citation for part 245a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1255a, and 1255a note.
3. Section 245a.2(u)(2) is amended by:
a. Designating the existing text of paragraph (u)(2) as paragraph
(u)(2)(i);
b. Adding a new heading and revising the first sentence of
paragraph (u)(2)(i); and
c. Adding a new paragraph (u)(2)(ii), to read as follows:
Sec. 245a.2 Application for temporary residence.
* * * * *
(u) * * *
(2) * * *
(i) Termination by the Service. Except as provided in paragraph
(u)(2)(ii) of this section, termination of an alien's temporary
resident status under paragraph (u)(1) of this section will be made
before instituting deportation proceedings against a temporary resident
alien and only on notice sent to the alien by certified mail directed
to his or her last known address, and to his or her representative, if
any. * * *
(ii) Termination upon entry of final order of deportation or
exclusion. (A) The Service may institute deportation or exclusion
proceedings against a temporary resident alien without regard to the
procedures set forth in paragraph (u)(2)(i) of this section:
(1) If the ground for deportation arises under section
241(a)(2)(A)(iii) of the Act (8 U.S.C. 1251(a)(2)(A)(iii));
(2) If the ground for deportation arises after the acquisition of
temporary resident status, and the basis of such ground of deportation
is not waivable pursuant to section 245A(d)(2)(B)(ii) of the Act (8
U.S.C. 1255a(d)(2)(B)(ii)); or
(3) If the ground for exclusion arises after the acquisition of
temporary resident status and is not waivable pursuant to section
245A(d)(2)(B)(ii) of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)).
(B) In such cases, the entry of a final order of deportation or
exclusion will automatically terminate an alien's temporary resident
status acquired under section 245A(a)(1) of the Act.
* * * * * [[Page 21041]]
Dated: April 21, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-10548 Filed 4-28-95; 8:45 am]
BILLING CODE 4410-10-M
