federal register March 6,1997 Thursday Asylum Procedures;FinalRule Conduct ofRemovalProceedings; Aliens; DetentionandRemovalof Inspection andExpeditedRemovalof 8 CFRPart1,etal. Review and ExecutveOfficeforImmigration Immigration andNaturalizationService Justice Department of Part II 10311 10312 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE Pike, Suite 2400, Falls Church, VA input on the issues addressed in this 22041, telephone number (703) 305– rulemaking, this rule is being published Immigration and Naturalization Service 0470; for asylum issues—Michael Shaul, as an interim rule with an additional Field Manual Project Office, 120-day comment period. Executive Office for Immigration Immigration and Naturalization Service, The Department received 124 Review 425 I Street NW, ULLB—4th Floor, comments on the proposed rule. Most of 8 CFR Parts 1, 3, 103, 204, 207, 208, Washington, DC 20536, telephone the commenters represented either 209, 211, 212, 213, 214, 216, 217, 221, number (202) 616–7439; for inspections attorney organizations or voluntary 223, 232, 233, 234, 235, 236, 237, 238, issues—Linda Loveless, Office of organizations predominantly involved 239, 240, 241, 242, 243, 244, 245, 246, Inspections, Immigration and with refugees and asylum claimants. 248, 249, 251, 252, 253, 274a, 286, 287, Naturalization Service, 425 I Street NW, Commenters addressed a variety of 299, 316, 318, and 329 Room 4064, Washington, DC 20536, topics, with much of the focus on telephone number (202) 616–7489; for asylum, expedited removal, and [INS No. 1788±96; AG ORDER No. 2071± detention and removal issues—Len voluntary departure. The Department 97] Loveless, Office of Detention and also received comments from individual members of Congress and Congressional RIN 1115±AE47 Deportation, Immigration and Naturalization Service, 425 I Street NW, subcommittees. Since many of the Inspection and Expedited Removal of Room 3008, Washington, DC 20536, comments were duplicative or endorsed Aliens; Detention and Removal of telephone number (202) 616–7799. the submissions of other commenters, Aliens; Conduct of Removal they will be addressed by topic, rather SUPPLEMENTARY INFORMATION: Proceedings; Asylum Procedures than referencing each specific comment Background and commenter. Also, because many of AGENCY: Immigration and Naturalization the comments were complex and dealt Service, Justice, and Executive Office for The Immigration and Naturalization with issues that may be better addressed Immigration Review, Justice. Service and the Executive Office for after the Department has had a period of Immigration Review jointly published a time to gain operational experience ACTION: Interim rule with request for proposed rule on January 3, 1997 (62 FR comments. under the new law, suggestions that 443–517 (1997)), to implement sections were not adopted for the interim period SUMMARY: This interim rule amends the of the Illegal Immigration Reform and will be further considered when a final regulations of the Immigration and Immigrant Responsibility Act of 1996, rule is prepared. A number of comments Naturalization Service (Service) and the Pub. L. 104–208, which was enacted on were received concerning sections of the Executive Office for Immigration September 30, 1996. This legislation regulations that were not specifically Review (EOIR) to implement the significantly amended the Immigration changed by the proposed rule, but were provisions of the Illegal Immigration and Nationality Act (Act) by revising the simply moved to new sections. The Reform and Immigrant Responsibility asylum process and providing a Department has not addressed these Act of 1996 (IIRIRA) governing mechanism for the determination and comments at this time, but will consider expedited and regular removal review of certain applicants who them either as part of separate proceedings, handling of asylum claims, demonstrate a credible fear of rulemaking initiatives or as part of the and other activities involving the persecution if returned to their own final rule rather than the interim rule, apprehension, detention, hearing of country; expanding the grounds of after the Service and EOIR more closely claims and ultimately the removal of inadmissibility; redefining applicants study the proposals. This inadmissible and deportable aliens. This for admission to include aliens who supplementary information will identify rule incorporates a number of changes entered the United States without significant changes made to the which are a part of the Administration’s inspection; creating new expedited proposed rule and briefly discuss reinvention and regulation streamlining removal procedures for aliens reasons why many other major initiative. attempting to enter the United States suggestions were not adopted at this through fraud or misrepresentation or DATES: Effective date: This interim rule time. without proper documents; Although the Department has is effective April 1, 1997. consolidating the former exclusion and Comment date: Written comments addressed the major comments received, deportation proceedings into one there will be further detailed analysis of must be submitted on or before July 7, unified removal proceeding; and 1997. these comments, as well as reorganizing and renumbering consideration of the additional ADDRESSES: Please submit written numerous provisions of existing law. comments received during the 120-day comments, in triplicate, to the Director, The effective date of most of the comment period following publication Policy Directives and Instructions provisions affecting asylum, inspection, of the interim regulation. This will Branch, Immigration and Naturalization and removal processes is April 1, 1997, ensure every suggestion is more fully Service, 425 I Street, NW, Room 5307, and implementing regulations must be explored. Commenters responding to Washington, DC 20536. To ensure in place by March 1, 1997. The the interim rule may choose to amend proper handling, please reference INS proposed rule allowed only a 30-day or expand on prior comments or address number 1788–96 on your comment period. The limited comment other areas not raised by commenters correspondence. Comments are period was necessary, given the short during the first comment period. available for public inspection at the statutory deadline and the time needed above address by calling (202) 514–3048 to draft the rule, coordinate with Definitions to arrange for an appointment. interested agencies, and complete the Several sections of the statute, such as FOR FURTHER INFORMATION CONTACT: For regulatory review process by the Office sections 212(a)(9), 240B, and 241 of the matters relating to the Executive Office of Management and Budget. In order to Act, refer to arriving aliens, even though for Immigration Review—Peggy Philbin, meet the statutory deadline for an this term is not defined in statute. After General Counsel, Executive Office for implementing regulation and yet carefully considering these references, Immigration Review, 5107 Leesburg provide adequate opportunity for public the Department felt that the statute Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10313 seemed to differentiate more clearly One commenter objected to the and with standard practice in many between aliens at ports-of-entry and inclusion of parolee in the definition of jurisdictions. Several commenters those encountered elsewhere in the arriving alien. The definition in the suggested that every alien subject to the United States. For clarity, ‘‘arriving proposed rule states ‘‘An arriving alien expedited removal provisions should alien’’ was specifically defined in 8 CFR remains such even if paroled pursuant automatically be offered the opportunity part 1, and the Department invited to section 212(d)(5) of the Act.’’ The to withdraw his or her application for commentary on the proper scope of the inclusion of paroled aliens was based on admission prior to the secondary regulatory definition. the statutory language in section inspection interview. Permission to One commenter suggested that aliens 212(d)(5) of the Act, which states withdraw an application for admission interdicted in United States waters ‘‘* * * but such parole of such alien is solely at the discretion of the should not be included in the definition shall not be regarded as an admission of Attorney General and is not a right of because persons arriving in United the alien and when the purposes of such the alien, a premise that has been States waters have already legally parole shall, in the opinion of the consistently upheld by the BIA. Only arrived in the United States. The Board Attorney General, have been served the the Attorney General may decide of Immigration Appeals (BIA) has alien shall forthwith return or be whether to pursue removal charges consistently held that the mere crossing returned to the custody from which he against an alien who has violated the into the territorial waters of the United or she was paroled and thereafter his immigration laws. Withdrawal of States has never satisfied the test of case shall continue to be dealt with in application for admission is only one of having entered the United States. See the same manner as that of any other several discretionary options that may Matter of G, 20 I&N Dec. 764 (BIA 1993). applicant for admission to the United be considered by the Service once the Aliens who have not yet established States.’’ Existing regulations at facts of the case are known, and so will physical presence on land in the United § 212.5(d) relating to termination of not automatically be offered to all aliens States cannot be considered as anything parole echo this provision, stating subject to expedited removal. other than arriving aliens. In addition, ‘‘* * * he or she shall be restored to The Department does, however, share the Department has for years relied on the status he or she had at the time of the concern of several commenters that interdiction efforts to stem the flow of parole.’’ The Department feels there is aliens who may be inadvertently or inadmissible aliens and attempted solid statutory basis for inclusion of unintentionally in violation of the illegal entries by sea. The inclusion of certain paroled aliens in the definition immigration laws or regulations should aliens interdicted at sea in the definition of arriving alien, and so will retain this not be subject to the harsh consequences of arriving alien will support the provision. of a formal removal order. The Department’s mandate to protect the The Department has added two Department also wishes to ensure that nation’s borders against illegal additional definitions for the sake of the expedited removal provisions and immigration. These provisions in no clarity. The term ‘‘Service counsel’’ has the discretionary option to permit way alter the Department’s current been added to clarify that although the withdrawal are applied consistently and interdiction policy and should not be term refers to any immigration officer fairly throughout the nation. Although construed as to require that all designated to represent the Service not included in the regulations at this interdicted aliens be brought to the before the Immigration Court or the BIA. time, the Department intends to United States. Only when an express Existing regulations interchangeably use formulate policy guidance and criteria decision is made, in accordance with this term and a variety of other terms, for determining the types of cases in existing interdiction policies, to including trial attorney, district counsel which such permission should or transport an interdicted alien to the and assistant district counsel. The term should not be considered. United States, will that alien be ‘‘aggravated felony’’ has also been considered an arriving alien for defined by reference to section Classes Subject to Expedited Removal purposes of the Act. 101(a)(43) of the Act as amended by Another commenter suggested that IIRIRA. The regulatory definition The Department requested public the definition be expanded to include clarifies that the amended section comment regarding the appropriate use aliens who have been present for less 101(a)(43) applies to any proceeding, of the authority conferred by the statute than 24 hours in the United States application, custody determination or upon the Attorney General to expand without inspection and admission. The adjudication. the class of aliens subject to expedited Department extensively considered this removal. Most commenters commended and similar options, such as a distance- Parole of Aliens the Department on its decision not to based distinction. For the reasons This interim rule modifies § 212.5(a) apply at this time the expedited removal discussed below relating to the decision to comport with the statutory change provisions to aliens in the United States not to apply the expedited removal made by IIRIRA to section 212(d)(5)(A) who have not been admitted or paroled provisions at this time to certain aliens of the Act. and who cannot establish continuous who entered without inspection, and physical presence in the United States considering the difficulty not only in Withdrawal of Application for for the previous two years. At this time, establishing that the alien entered Admission the Department will apply the without inspection, but also in The proposed rule contains provisions only to ‘‘arriving aliens,’’ as determining the exact time of the alien’s provisions to implement the defined in § 1.1(q). The Department arrival, the Department continues to longstanding practice used by the acknowledges that application of the believe the position taken in the Service to permit applicants for expedited removal provisions to aliens proposed rule is correct and will not admission to voluntarily withdraw their already in the United States will involve modify this definition in the interim application for admission to the United more complex determinations of fact rule. The definition of ‘‘arriving alien’’ States in lieu of removal proceedings, and will be more difficult to manage, will be given further consideration in now included in section 235(a)(4) of the and therefore wishes to gain insight and the final rule, however, drawing upon Act. The withdrawal provisions in the experience by initially applying these the experience of the early proposed rule were written to conform new provisions on a more limited and implementation of the interim rule. with rulings of the BIA on withdrawal controlled basis. 10314 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

The Department does, however, instituting removal proceedings, permit verified by the immigration officer by reserve the right to apply the expedited an alien to withdraw his or her referring to official Service records. The removal procedures to additional application for admission in those cases Department intends that when such a classes of aliens within the limits set by where there is no fraudulent intent and prior admission is verified, the the statute, if, in the Commissioner’s the alien is inadmissible only through individual will not be removed under discretion, such action is operationally inadvertent error or misinformation. the expedited removal provisions of warranted. It is emphasized that a There are also discretionary waivers section 235(b) of the Act, regardless of proposed expansion of the expedited available in certain cases. the officer’s determination as to the removal procedures may occur at any individual’s current admissibility and/ Reorganization of § 235.3(b)(1) and (2) time and may be driven either by or retention of such lawful permanent specific situations such as a sudden In order to provide a more logical status. For that reason the first sentence influx of illegal aliens motivated by discussion of the applicability of the of § 235.3(b)(5)(ii) sets forth this political or economic unrest or other expedited removal provisions and the prohibition. Since the removal events or by a general need to increase procedures for applying them, provisions under section 235(b) of the the effectiveness of enforcement § 235.3(b)(1) (determination of Act are not available, the only actions operations at one or more locations. inadmissibility) and § 235.3(b)(2) left for the examining officer are to: Although several commenters (applicability) as they appeared in the admit the individual (through the grant suggested that imposition of the proposed regulation have been of a waiver if need be); defer inspection provisions should only occur after interchanged and revised as discussed to allow the individual to retrieve the publication of a proposed rule followed below. appropriate documents; or place the by a comment period, the statute does Expedited Removal Procedures person in removal proceedings under not impose any specific notice section 240 of the Act. This process will requirement in connection with the Many commenters stated that the allow those individuals verified as Attorney General’s designation under provisions in § 235.3(b) were not having once been admitted as a lawful section 235(b)(1)(A)(3), and certainly sufficiently explicit to ensure that the permanent resident, asylee, or refugee a does not impose the requirement of a expedited removal provisions are fairly full evidentiary hearing in removal full administrative rulemaking. Indeed, and consistently applied. Because most proceedings under section 240 of the such a requirement would defeat a of these commenters represented Act before an immigration judge to major purpose of this provision: to organizations primarily concerned with address the heavily fact-based issues of allow the Attorney General to respond refugee and asylum issues, we have abandonment of status or other issues rapidly, effectively, and flexibly to addressed this topic in detail below in concerning loss of status. The language situations of mass influx or other the section relating to credible fear ‘‘may initiate proceedings’’ was used exigencies. The Attorney General has determinations and claims of asylum or here to indicate that the officer is not elected to exercise this authority in fear of persecution by aliens subject to required to initiate any proceedings but connection with publication of a notice expedited removal. may opt to admit the individual into the in the Federal Register (in advance, Review of Claim of Status as Lawful United States. where practicable) simply as a matter of Permanent Resident, Asylee, or Refugee As for those individuals claiming to sound administration and policy. The be returning lawful permanent provisions contained in § 235.3(b) of Several commenters suggested residents, asylees, or refugees, but who this interim rule will apply for now only provisions of § 235.3(b)(5) were not are not verified by the Service as having to arriving aliens. sufficiently clear to provide adequate ever been admitted in such status, the Several commenters suggested that review of claims by returning lawful referral to the immigration judge in certain classes of individuals, such as permanent residents, asylees, or § 235.3(b)(5)(iv) is for the purpose of minors, certain nonimmigrant refugees who are subject to expedited allowing the individual to establish classifications, and aliens claiming to be removal. Specifically, the commenters such a prior admission in such status, lawful permanent residents or U.S. asserted that § 235.3(b)(5)(ii) could be nothing more. If the individual citizens, should not be subject to interpreted to imply that an alien whose establishes such a prior admission, the expedited removal, or that it should not claim to lawful permanent residence is immigration judge will terminate the be applied where resources or location verified and is not granted a expedited removal order and at that do not permit optimal inspection discretionary waiver or provided an point that person will be in the same conditions. Some stated that aliens in opportunity through deferred inspection position as the person whose prior expedited removal should be entitled to to present the required documents could admission was verified by the a full hearing before an immigration be ordered removed under section inspecting Service officer: the Service judge. The statute is clear that the 235(b) of the Act. These commenters can admit the individual or contest his expedited removal provisions apply to requested that § 235.3(b)(5)(iv) of the or her current retention of such status in all aliens inadmissible under sections proposed regulation be amended to the context of removal proceedings 212(a)(6)(C) or (7) of the Act, and that allow that claimed lawful permanent under section 240 of the Act. such aliens are not entitled to further residents, asylees, or refugees (who the Another commenter contended that it hearing or review with specific limited Service has been unable to verify ever is not appropriate to refer aliens who are exceptions. Although the statute does was admitted in such status) be referred verified as having been admitted or not require it, the Department has directly to removal proceedings under establish that they were once admitted provided for supervisory review and section 240 of the Act. as lawful permanent residents, asylees, concurrence on all expedited removal For the following reasons, these or refugees to proceedings under section orders. The statute itself provides for sections of the proposed regulation will 240 of the Act. Section 235(b)(1)(C) of review of a claim to lawful permanent not be changed in the interim rule. the Act states that the Attorney General resident, refugee, or asylee status. In Section 235.3(b)(5)(ii) of the proposed shall provide regulations for addition, the Department has a certain regulation relates to those arriving administrative review of an expedited amount of prosecutorial discretion aliens whose prior admission as a removal order entered against ‘‘an alien provided by statute. It may, in lieu of lawful permanent resident has been who claims under oath . . .’’ to have Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10315 been lawfully admitted as a lawful admitted as permanent residents, procedure’’ and there was no emergency permanent resident, asylee, or refugee. refugees, or asylees. necessitating the more recent The statute provides no further directive Several commenters stated that the departure), the director may determine as to how aliens who actually have been regulations do not provide any criteria that favorable exercise of discretionary admitted in such status are to be for the detention or release of these authority is not warranted. Accordingly, processed if, in fact, the Service believes individuals. The provisions of the regulation provides that the district that such status may no longer be valid. § 235.3(b)(2)(iii) requiring detention of director having jurisdiction over the If that claim is never verified or all aliens subject to the expedited overseas location, or over the inspection established before the inspecting removal provisions and issued a facility in the case of an alien at a port- Service officer or an Immigration Judge, removal order also apply to persons of-entry, may deny the application as a the expedited removal order entered whose claim to lawful permanent matter of discretion. against the alien will be effected and the resident, refugee, asylee, or U.S. citizen A few commenters suggested that alien will be removed from the United status has not been verified. To clarify there be no limit on how long after States. However, once an alien that detention is required for these departure the application may be filed. establishes admission in such status, it individuals, the interim rule reiterates Others suggested that the time limit be is not inconsistent with the statute for this requirement in § 235.3(b)(5)(i). shortened from 1 year to 6 months to coincide with the 6 month time frame further proceedings against an alien Filing of an Application for a Refugee in section 101(a)(13)(C) of the Act, known to have been lawfully admitted Travel Document While Outside the which is the period during which a as a permanent resident, asylee, or United States refugee to occur in the context of lawful permanent resident who meets proceedings under section 240 of the Several commenters remarked certain other requirements is not Act. Further, given the greater interests favorably on the proposal to revise 8 considered to be an applicant for and ties to the United States normally CFR part 223 to allow refugees and admission. Another commenter stated at stake for such aliens compared to asylees to apply for refugee travel that the validity of a refugee travel those arriving without any previous documents from outside the United document approved under this process status, the Department considers it States, after departure from the United should not be limited to 1 year from the appropriate that verified arriving States, under certain very limited date of the alien’s departure from the permanent residents, asylees, and circumstances. The Department United States, so long as the application refugees be accorded the protections proposed this revision with full was filed within 1 year of that inherent in proceedings under section awareness of the provision in section departure. The 1-year limitation was 240 of the Act. 208(c)(1) of the Act under which the chosen because it is the maximum Attorney General may allow the alien to validity period for which a document Review of Claim to U.S. Citizenship travel abroad ‘‘with the prior consent of would have been approved had the Several commenters stated that while the Attorney General.’’ Despite the alien complied with the requirement of the statute and regulations provide for implied language of the statute, the filing prior to departure. Allowing an review of an expedited removal order of Department felt that an exception was applicant to file from outside the United an alien claiming to be a lawful warranted for those cases where the States more than 1 year after departure permanent resident, refugee, or asylee, alien innocently departed in ignorance would effectively authorize a longer there is no such provision for review of of the requirement or, although aware of validity period for the person who failed a claim to U.S. citizenship. While U.S. the requirement, departed without to comply with the requirement than for citizens are not subject to the applying for the document due to an one who did. This would not be inadmissibility and removal provisions urgent humanitarian need, such as the appropriate. Likewise, the 6-month of the Act and the Department makes impending death of a close relative. It period during which a lawful every effort to prevent the inadvertent should be noted that the current permanent resident (who meets the removal of U.S. citizens, there are regulations only require that an other criteria in section 101(a)(13) of the approximately 35,000 false claims to application be filed before departure, Act) is not deemed to be seeking U.S. citizenship made every year at not that the applicant delay travel until admission is not analogous to that of the ports-of-entry. Congress recognized this after the application is approved and the stranded refugee, since the refugee is problem in IIRIRA by adding a new document is received. The Service has clearly deemed to be seeking admission. ground of inadmissibility to section always provided the option of allowing Additionally, 6 months might be too 212(a)(6)(C)(ii) of the Act specifically the alien to pick up the document short a time for the alien who realizes designating such aliens as inadmissible overseas at an American consular post. his or her error to file the application and subject to the expedited removal A few commenters suggested that the and for the Service to verify eligibility provisions. Existing regulations at decision whether to accept such and approve that application. The § 235.1(b), which have been in place for applications not be left to the discretion Department feels that in those cases many years, place the burden of of the Service. This change has been where it is proper to allow an exception establishing a claim to U.S. citizenship made. However, the regulation does not from the requirement to file before on the person seeking entry. Otherwise, remove the general requirement that the departure, it is appropriate that the that person is inspected as an alien. To application be filed before departure, document be valid for the same length provide an additional level of review nor does it intend that the new of time as for the person who complied and safeguard against a mistaken procedure be viewed as a routine with that requirement. determination, the Department will method of obtaining the document. institute the same procedures contained Although not specifically stated in the Revision of Asylum Procedures in § 235.3(b)(5) for persons who have regulation, the Department intends that In general, many commenters not been able to establish U.S. if it is apparent that the alien knew of requested that specific ‘‘step-by-step’’ citizenship, but who maintain a claim the general requirement and simply procedural instructions be placed in the under oath or under penalty of perjury chose to ignore it (e.g., if the alien had regulations regarding the interview to be U.S. citizens, which are used for previously been issued a refugee travel process at both the secondary inspection persons claiming to be lawfully document through this ‘‘overseas stage and the credible fear 10316 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations determination stage. Although a number establishing that one of the exceptions for that circumstance, the application of these suggestions have been adopted, in section 208(a)(2)(D) applies must would have been filed within the year. others have not. While the Department only be to the ‘‘satisfaction of the Some commenters requested that the appreciates both the necessity for equal Attorney General.’’ The rule also Department clarify that failure to and proper treatment of all cases and contemplates that the asylum officer or establish changed circumstances or the advantages of standardization, it immigration judge hearing such a case extraordinary circumstances might bar must also recognize that not all will explore the reasons for the late an applicant from applying for asylum, situations are identical and the filing. Finally, and importantly, the it does not bar him or her from applying interviewing officer must be allowed a Department has decided to follow the for withholding of removal. The certain amount of flexibility in recommendation that the date of arrival Department agrees and the interim rule conducting interviews to account for used to determine the one-year period contains this clarification. differences in individual situations. in section 208(a)(2)(B), consistent with Some commenters objected to the Convention Against Torture the effective date of that section, be no requirement that an alien who meets the earlier than April 1, 1997. Thus, the first extraordinary circumstances criteria, file Many commenters urged that there be case to which this prohibition could the application ‘‘as soon after the express reference in several parts of the apply would be one filed on April 2, deadline as practicable given those regulation to the non-refoulement 1998. circumstances,’’ preferring instead the obligation under Article 3 of the Regarding the changed circumstances phrase ‘‘within a reasonable time period Convention Against Torture. This article exception in section 208(a)(2)(D), the requires a state not to ‘‘expel, return given those circumstances.’’ The Department has followed the (‘refouler’) or extradite a person to Department has adopted this suggestion recommendation of numerous another state where there are substantial and a similar formulation for the commentators to drop the language grounds for believing that he or she ‘‘changed circumstances’’ exception. limiting this exception, for purposes of would be in danger of being subjected section 208(a)(2)(B), to circumstances ‘‘Asylum-Only’’ Hearings to torture.’’ This article has been in that arise after the one-year period. The effect for the United States since The Department noted a conflict in Department has also decided to provide November 1994. Although Article 3 of the proposed rule between the a better definition of this exception by the Torture Convention itself is not self- provisions of § 208.2(b)(1)(i)(C) and indicating that the definition may executing, the Attorney General has § 252.2(b) regarding crewmembers who sufficient administrative authority to include either changed conditions in the are granted landing permits prior to ensure that the United States observes home country or changes in objective April 1, 1997, and subsequently become the limitations on removal required by circumstances relating to the applicant deportable. The former provision would this provision. In fact, the Service has in the United States, including changes place such alien in ‘‘asylum-only’’ received and considered individual in applicable U.S. law, that create a proceedings before the immigration requests for relief under the Torture reasonable possibility that the applicant judge, while the latter would place him Convention since November 1994 and may qualify for asylum. Because of or her in regular removal proceedings has arranged for relief where inconsistency between the formulation under section 240 of the Act. The appropriate. For the present, the of changed circumstances in section interim rule corrects this conflict by Department intends to continue to carry 208(a)(2)(D) and the formulation in specifying that the ‘‘asylum-only’’ out the non-refoulement provision of section 240(c)(5)(ii) of the Act, which process applies to those crewmembers the Torture Convention through its permits an alien to file a motion to granted landing privileges on or after existing administrative authority rather reopen beyond the time limit normally April 1, 1997. Also, § 208.2(b)(2) has than by promulgating regulations. The applicable to such a motion, the been expanded to explain the Service is, however, developing Department has decided to drop the consequences of failure to appear for an thorough guidelines to address Article 3 requirement that, for purposes of the asylum-only hearing and to set forth issues and intends to issue those prohibition in section 208(a)(2)C), such conditions and limitations on reopening guidelines soon. These guidelines exception may only be raised through a such proceedings. motion to reopen. generally, and the expedited removal Discovery and FOIA Issues process in particular, will be A large number of commenters implemented in accordance with Article requested that the Department list Some commenters expressed concern 3. examples of what is meant by about the statement in 8 CFR 208.12 that extraordinary circumstances within the ‘‘[n]othing in this part shall be Prohibitions on Filing Asylum meaning of section 208(a)(2)(D) of the construed to entitle the applicant to Applications Act, and several commenters suggested conduct discovery directed towards the There were numerous comments on examples that they believed were records, officers, agents, or employees of the prohibitions on the filing of asylum appropriate. Accordingly, the the Service, the Department of Justice or applications in section 208(a)(2) of the Department has included such a list in the Department of States.’’ Specifically, Act. Because of the importance of a the interim rule. It is important to bear they feared that the provision would decision to deny an alien the right to two points in mind when reviewing the preclude someone from seeking, or apply for asylum, the Department has list. First, the list is not all-inclusive, excuse the Service from providing, chosen to adopt the suggestion that only and it is recognized that there are many information under the Freedom of asylum officers, immigration judges, other circumstances that might apply if Information Act (FOIA). This fear is and the BIA be empowered to make the applicant is able to show that but for totally groundless. FOIA provisions are such determinations. The Department such circumstances the application covered under separate statutory and has also made clear that, while the alien would have been filed within the first regulatory bases. The Service is guided must establish by clear and convincing year of the alien’s arrival in the United by 5 U.S.C. 522 and 8 CFR 103 with evidence that he or she applied within States. Second, the alien still has the regard to FOIA matters, neither of which one year of his or her arrival in the burden of establishing the existence of are in any way affected by this United States, the alien’s burden of the claimed circumstance and that but rulemaking. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10317

Persecution for Illegal Departure or § 208.16(c)(3) on those aliens who may that the credible fear standard is a low Applying for Asylum be eligible for relief under section one and that cases of certain types Several commenters objected to the 243(h)(3) of the Act, as amended by Pub. should necessarily meet that standard. proposed elimination of L. 104–132. In particular, these Since the statute expressly defines the § 208.13(b)(2)(ii) and § 208.16(b)(4), commenters object to the notion that the term ‘‘credible fear of persecution,’’ we which require asylum officers and United States may summarily preclude have chosen not to provide in the rule immigration judges to give ‘‘due from eligibility for withholding of a further refinement of this definition. consideration’’ to evidence that the deportation aliens convicted of a However, both INS and EOIR will give government of the applicant’s country of particularly serious crime, including an extensive training to their officials on nationality or last habitual residence aggravated felony, without individually the purpose of the credible fear standard considering their cases. However, it is and how it is to be applied to particular persecutes its nationals or residents if well established in U.S. law that aliens cases. The Department believes that they leave the country without who have been convicted of an such training will ensure that the authorization or seek asylum in another aggravated felony are mandatorily standard is implemented in a way country. These commenters interpreted barred from obtaining withholding of which will encourage flexibility and a this change to mean that the Department deportation. See, e.g., Kofa v. INS, 60 F. broad application of the statutory does not wish to consider seriously such 3d 1084, 1090 (4th Cir. 1995) (en banc). standard. evidence or to grant asylum or In the proposed regulation withholding to persons who are at risk Employment Authorization for Asylum implementing section 243(h)(3) of the of punishment for illegal departure from Applicants Act, the Department decided, consistent their countries or for applying for with the revisions made to the Almost all who chose to comment on asylum abroad. This is not the case. The withholding of deportation statute by the Department’s position regarding Department and the United States the Illegal Immigration Reform and work authorization for asylum Government continue to deplore and Immigrant Responsibility Act of 1996, to applicants were pleased with the oppose certain countries’ practice of make relief under this section available decision to continue to allow the severely punishing their citizens for only to those persons convicted of an applicant to apply for an employment illegal departure or for applying for aggravated felony who receive an authorization document once the asylum in another country. The aggregate sentence of imprisonment of asylum application has been pending Department also acknowledges that less than 5 years. This proposal is for 150 days. One commenter requested persons who face severe punishment for almost entirely consistent with a recent that the 150-day period be abolished, such acts may continue to qualify for precedent decision issued by the BIA on but that suggestion was not deemed asylum or withholding of removal. this issue. See Matter of Q–T–M–T–, Int. viable, especially in light of the new However, the regulation at issue did not Dec. 3300 (BIA 1996). Thus, the statutorily-mandated 6-month minimum clearly implement this policy. First, it Department intends to retain the basic time before granting such authorization requires only that asylum officers and approach in the proposed regulation. contained in section 208(d)(2) of the immigration judges give ‘‘due We have only added a sentence Act. consideration’’ to evidence of such providing that an alien convicted of an The Department has also modified the practices; this is a vague and indefinite aggravated felony shall be presumed to regulations relating to employment standard. Second, it obliges adjudicators have been convicted of a particularly authorization at §§ 208.7(a) and to consider evidence of whether a serious crime. This minor change 274a.12(a)(8) to ensure that applicants country ‘‘persecutes’’ its nationals for renders the regulation fully consistent who appear to an asylum officer to be such actions. Such language begs the with the Board’s decision in Matter of eligible for asylum but have not yet very question that an adjudicator must Q–T–M–T–, supra. received a grant of asylum are able to answer in deciding such a case: Does obtain employment authorization. the alleged punishment amount to Admission of the Spouse and Children Section 208(d)(5)(A)(i) of the Act obliges persecution? It is well-established that of an Asylee the Service, prior to granting asylum, to not all punishment for illegal departure The proposed rule reserved § 208.19 check the identity of the applicant constitutes persecution. See, e.g., Sovich for regulations pertaining to the ‘‘against all appropriate records or v. Esperdy, 319 F. 2d 21 (2d Cir. 1963); admission of the spouse and children of databases maintained by the Attorney Matter of Chumpitazi, 16 I&N Dec. 629 an asylee. This matter was the subject of General and by the Secretary of State (BIA 1978). However, in some cases, it a separate proposed rule published July ** *.’’ Such databases include, among may. Such a question must be resolved 9, 1996, see 61 FR 35,984 (1996) and the others, the Federal Bureau of on a case-by-case basis. Thus, rather Department had intended to incorporate Investigation’s (FBI) fingerprint than continue to have an ambiguous the revised regulations into this interim database. At present, the Service regulation on this issue, the Department rule. However, because analysis of the initiates such a fingerprint check at the believes its adjudicators should apply comments to that earlier proposed rule time it grants asylum; if the check turns the same standards to these cases as has not been completed, the Department up information that undercuts that they would to any other case in which will instead redesignate the existing decision, asylum is later revoked. The the applicant claims a fear that derives regulations at § 208.21 as § 208.19. The Service’s experience is that the FBI’s from governmental prosecution. This is revised regulations on the admission of fingerprint checks often take a best accomplished by removing the the spouse and children of an asylee significant period of time to complete. provisions in question from the will be incorporated into the final The new statutory requirement at regulations. regulations, which will be published section 208(d)(5)(A)(i) of the Act thus after the expiration of the comment means that after April 1, 1997, an alien Exception to the Prohibition on period for this interim rule. who would otherwise appear to be Withholding of Deportation in Certain eligible for asylum may have to wait for Cases Credible Fear Standard a long period of time before he or she Several commenters objected to the Several commenters urged that we can be granted asylum or employment proposed rule’s limitation in adopt regulatory language emphasizing authorization. (A similar problem may 10318 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations arise in the case of an alien who is suspected of qualifying for expedited procure (or has sought to procure or has determined to be a refugee under the removal ‘‘may’’ be eligible, and that the procured) a visa, other documentation, new language in section 101(a)(42) of information should be given before the or admission into the United States or the Act but is precluded from being secondary inspection pre-screening other benefit provided under this Act granted asylum because of the cap in process. ** *,’’ as well as aliens who falsely section 207(a)(5) of the Act.) Such a To understand the Service position on represent themselves to be citizens of result is contrary to one of the chief this issue, one must understand the the United States. In addition to the purposes of the asylum reforms brought general inspection process. All persons presentation of fraudulent documents, about by the regulatory changes of entering the United States at ports-of- the falsity of which may not be verified January 1995: to ensure that bona fide entry undergo primary inspection. U.S. until a thorough examination has been asylees are eligible to obtain citizens are exempt from the inspection conducted, the fraud and employment authorization as quickly as process, but must nevertheless undergo misrepresentation referenced in this possible. Thus, consistent with the an examination to determine section may include falsehoods told by authority in section 208(d)(2) of the Act, entitlement to exemption from the alien concerning his or her the Department has decided to make inspection. In FY 96, the Service admission or other misrepresentations employment authorization available to conducted more than 475 million told to Government officials now or in asylum applicants who are primary inspections. During the primary the past. recommended for a grant of asylum but inspection stage, the immigration officer Section 212(a)(7) of the Act, in have not yet received such grant of literally has only a few seconds to addition to covering a lack of valid asylum or withholding. An alien may examine documents, run basic lookout documents (including expired or apply for employment authorization queries, and ask pertinent questions to incorrect visas or passports), also under these provisions as soon as he or determine admissibility and issue encompasses the alien ‘‘who is not in she receives notice of the grant relevant entry documents. At most land possession of a valid unexpired recommendation. border ports-of-entry, primary immigrant visa.’’ Under immigration inspection duties are shared with U.S. law, aliens who cannot establish Credible Fear Determinations and Customs inspectors, who are cross- entitlement to one of the nonimmigrant Claims of Asylum or Fear of designated to perform primary categories contained in the Act are Persecution by Alien Subject to immigration inspections. If there appear presumed to be immigrants, and, if not Expedited Removal to be discrepancies in documents in possession of a valid immigrant visa, Under the new section 235(b)(1)(A)(ii) presented or answers given, or if there are inadmissible under section 212(a)(7) of the Act, an alien subject to expedited are any other problems, questions, or of the Act. The majority of the aliens removal who indicates an intention to suspicions that cannot be resolved currently found inadmissible to the apply for asylum or who expresses a within the exceedingly brief period United States fall into this category and fear of persecution will be referred to an allowed for primary inspection, the will now be subject to expedited asylum officer to determine if the alien person must be referred to a secondary removal. Again, inadmissibility under has a credible fear of persecution. Many inspection procedure, where a more this ground often cannot be determined commenters stated that the regulation in thorough inquiry may be conducted. In until the secondary inspector has § 235.3 was not sufficiently detailed in addition, aliens are often referred to thoroughly questioned the alien. delineating the following procedures for secondary inspection for routine To fully advise, prior to any recognizing and referring arriving aliens matters, such as processing immigration secondary questioning, nearly all aliens who may be genuine refugees fleeing documents and responding to inquiries. referred to secondary inspection of the persecution: disclosures to arriving While millions of aliens (almost 10 expedited removal procedures and of aliens; conditions of secondary million in FY 96) are referred to the possibility of requesting asylum inspection; use of interpreters; secondary inspection each year for would needlessly delay the millions of representation during secondary many reasons, approximately 90 percent aliens who are ultimately found inspection; written record of of these aliens are ultimately admitted admissible after secondary questioning. proceeding; time and place of credible to the United States in a very short For almost all of these people, asylum, fear interview; detention pending a period of time once they have been fear of persecution, or fear of return is determination of credible fear; and interviewed and have established their not an issue. detention following a determination of admissibility. The Service has very carefully credible fear. We will address these The secondary officer often does not considered how best to ensure that bona concerns individually. know if an alien is likely to be removed fide asylum claimants are given every under the expedited removal process opportunity to assert their claim, while Disclosures to Arriving Aliens until he or she has questioned the alien. at the same time not unnecessarily Many commenters expressed the Congress, in drafting the expedited burdening the inspections process or opinion that all arriving aliens should removal provisions, chose to include encouraging spurious asylum claims. be provided with information both section 212(a)(6)(C) and 212(a)(7) Service procedures require that all concerning the credible fear interview. of the Act as the applicable grounds of expedited removal cases will be This contention is based on the inadmissibility. The common documented by creation of an official language of the statute in section perception is that most expedited Service file, to include a complete 235(b)(1)(B)(iv) that states: ‘‘The removal cases will involve obvious sworn statement taken from the alien Attorney General shall provide fraudulent documents, or aliens arriving recording all the facts of the case and information concerning the asylum with no documents at all. This is not the reasons for a finding of interview described in this necessarily the type of case that most inadmissibility. This sworn statement subparagraph to aliens who may be frequently falls within the provisions of will be taken on a new Form I–867AB, eligible * * *.’’ The commenters’ sections 212(a)(6)(C) and (7) of the Act. Record of Sworn Statement in position is that this requirement is not Section 212(a)(6)(C) of the Act includes Proceedings under Section 235(b)(1) of limited only to aliens who ‘‘are’’ ‘‘any alien who, by fraud or willfully the Act. The form will be used in every eligible, but that all aliens who are misrepresenting a material fact, seeks to case where it is determined that an alien Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10319 is subject to the expedited removal Service has always made every effort to immigration inspection and issuance of process, and contains a statement of afford as much privacy during sensitive the order. Therefore, the Department rights, purpose, and consequences of the or complex interviews as conditions will retain its interpretation that an process. Among other things, it clearly allow, and will continue to do so. alien in primary or secondary advises the alien that this may be the As for delaying the secondary inspection is not entitled to only opportunity to present information interview to allow every alien time to representation, except where the person concerning any fears or concerns about rest prior to being questioned, the has become the focus of a criminal being removed from the United States, Service again points out that it conducts investigation and has been taken into and that any information concerning more than ten million secondary custody for that purpose. that fear will be heard confidentially by inspections each year. Most of those another officer. The final page of the questioned are eager to have their Written Record of Proceeding form contains a standard question inspection completed as quickly as Several commenters expressed asking if the alien has any fear or possible. The Department has neither concern that there be a complete record concern of being removed or of being the resources nor the authority to detain of proceeding to ensure that Service sent home. If, during the course of the all secondary referrals without first officers are making proper decisions. As sworn statement, or at any time in the conducting a prompt interview to previously explained, an official Service process, the alien indicates a fear or determine inadmissibility. file will be created on every expedited concern of being removed, he or she Use of Interpreters removal case. The file will include will be given a more detailed written photographs, fingerprints, copies of any The issue of language barriers and the explanation of the credible fear documentary or other evidence use of interpreters is not new to the interview process prior to being placed presented or discovered, and a complete Service. The Service makes use of in detention pending the credible fear written sworn statement. The sworn interview. The Inspector’s Field Manual interpreters whenever necessary and will continue to do so to ensure that all statement will record all facts of the will contain detailed instructions and case and the alien’s statements. As with guidance to officers to assist them in aliens are fully apprised of the proceedings against them. The Service all sworn statements taken by the recognizing potential asylum claims, Service, the alien is required to initial and this topic will also be covered in currently uses its own officers, many of whom are bilingual or multilingual, each page and any corrections, and sign officer training. Every expedited the statement certifying that he or she removal case also undergoes airport personnel, or telephonic interpretive services when in-person has read (or had read to him or her), the supervisory review before the alien is statement and that it is true and correct. removed from the United States. The interpreters are not available. Occasionally, family members or When necessary, interpreters will be Service is confident that these used. The language added to the safeguards will adequately protect persons waiting to meet the arriving alien may be allowed to assist in regulation at § 235.3(b)(2) requires that potential asylum claimants. To ensure such sworn statement be taken in every that these procedures are followed in translation of the interview. The Service will use appropriate means to ensure case. Procedures developed for the every expedited removal case, language Inspector’s Field Manual also contain has been added to § 235.3(b)(4) that aliens being removed are advised of very specific instructions regarding the outlining the procedures. and understand the reasons for the removal and the consequences of such record of proceeding. Conditions of Secondary Inspection removal. Time and Place of Credible Fear Representation During Secondary Interview Numerous commenters indicated that Inspection the secondary inspection should be Several commenters requested that conducted in private, comfortable Several commenters stated that an the regulations state where and when rooms, and that no secondary inspection alien subject to expedited removal the credible fear interviews will take should take place before an alien has should be able to obtain representation place. The statute provides that credible had time to rest (some commenters or counsel prior to any secondary fear interviews may take place either at suggested 24 hours), eat, and consult inspection interview. As discussed in a port-of-entry or at other locations that with family, friends, counsel, or other the section on disclosures to aliens in the Attorney General may designate. representatives. The commenters also expedited removal, the secondary The Service intends that most suggest that aliens should have access to inspection officer often does not know interviews will be conducted at Service interpreters before and during the that an alien will be subject to expedited detention facilities, but prefers the screening process. removal until such questioning has flexibility to make adjustments to this At airports, the inspection facilities taken place, nor will all determinations arrangement as the need arises. for the Federal Inspection Services of inadmissibility under section Therefore, this operational concern will (FIS), which includes the Service, U.S. 212(a)(6)(C) or (7) of the Act result in an not be addressed in the regulation. The Customs Service, the U.S. Department of expedited removal order. Section 292 of Service maintains detention facilities Agriculture, and the U.S. Public Health the Act provides that in any removal near several major airports such as JFK, Service, are provided by the airport proceeding before an immigration judge, Miami, and Los Angeles, as well as authorities. While the Government has the person concerned shall have the many locations along the southern input when new facilities are privilege of being represented by border and other sites like Denver, constructed, the inspection areas, counsel, at no expense to the Seattle, and Houston. In circumstances especially in older airports, simply do Government. Congress did not amend where the port of arrival is not near a not allow for the amenities suggested by this section to include proceedings Service detention facility and it is the commenters. The same is true for before an immigration officer. In impractical to transport the alien to a land border ports, where the facility is addition, while Congress specifically Service facility, the alien may be usually provided by the General provided for consultation prior to the detained in other Service-approved Services Administration and overall credible fear interview, it did not detention sites, such as local or county space is often extremely limited. The provide for consultation prior to the jails. In these instances an asylum 10320 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations officer will travel to the detention site in exclusion proceedings after April 1, the Act provides that if an asylum to conduct the interview. 1997. officer determines that an alien has a Several commenters suggest that the credible fear of persecution, the alien Review of Credible Fear Determinations Service should conduct credible fear ‘‘shall be detained for further interviews at its local asylum offices The proposed regulation provides that consideration of the application for whenever possible. The Service declines an alien may receive, upon request, asylum. The remainder of section 235(b) to be bound by this suggestion because review by an immigration judge of an of the Act is very specific as to what of the prohibitive costs involved in asylum officer’s finding of no credible procedures should be followed if an transporting aliens, under escort, to and fear. A number of commenters requested alien does not establish a credible fear. from detention facilities. However, the that language be inserted in the interim However, the statute is silent as to the Service retains the option to conduct regulation which presumes that an procedures for those who do interviews at places designated for asylum officer’s finding of no credible demonstrate a credible fear of asylum officers. fear will be reviewed by an immigration persecution. Once an alien establishes a Similarly, the Service intends that judge unless the alien desires to credible fear of persecution, the purpose aliens will normally be given 48 hours abandon the review and return to his or behind the expedited removal from the time of arrival at the detention her home country. If such a suggestion provisions of section 235 of the Act to facility, in which to contact family is not adopted, these commenters screen out arriving aliens with members, friends, attorneys, or request that, at a minimum, language be fraudulent documents or no documents representatives. During the referral inserted requiring that the asylum and with no significant possibility of process from the port-of-entry, they will officer advise the alien of his or her establishing a claim to asylum has been be given a list of pro bono right to request review of the negative satisfied. Therefore, the further representatives. This list is provided for decision and requiring the officer to ask consideration of the application for the purpose of consultation prior to the the alien whether he or she desires such asylum by an alien who has established interview, and does not entitle the alien review. The language of section a credible fear of persecution will be to formal counsel or representation 235(b)(1)(B)(iii)(III) of the Act clearly provided for in the context of removal during the credible fear interview. The provides that the alien has the proceedings under section 240 of the aliens will be given access to a obligation to request review of a Act. telephone to make such contacts. negative credible fear determination. Commenters suggest that aliens be given The Department notes that § 208.30(e) of Detention Following a Determination of petty cash or be permitted to make the proposed regulation requires the Credible Fear telephone calls at Government expense; asylum officer to inquire whether the Numerous commenters stated that however, the statute that provides for alien wishes review of the negative aliens who have established a credible such consultation specifically states that credible fear determination. This fear of persecution are presumptively the consultation shall be at no expense provision is appropriated into Form I– eligible for release and should not be to the Government. 589. detained unless the government can A number of commenters asked that demonstrate that the alien poses a Detention Pending a Determination of the regulation provide that, whenever danger to the community or a risk of Credible Fear practicable, the credible fear review be flight. Some stated that the burden A few commenters stated that the conducted in person; that the alien may should be on the government to prove provisions of § 235.3(b)(4) for detention be assisted by an attorney or other that custody is necessary. Again, the of aliens awaiting a credible fear representative; and that an interpreter clear language of the statute states that determination are too harsh, and asked be provided when necessary. Another such aliens shall be detained. The that the rule be amended to allow for commenter stated, however, that no parole provisions of section 212(d)(5) of parole of such aliens. However, because counsel should be allowed in the review the Act provide discretionary authority section 235(b)(1)(B)(iii)(IV) of the Act of credible fear determinations; rather, a to the Attorney General to parole into requires that an alien in expedited representative should be allowed to the United States or from custody only removal proceedings ‘‘shall be detained submit a written statement. The on a case-by-case basis. The credible pending a final determination of Department recognizes the concerns fear standard sets a low threshold of credible fear of persecution and, if raised by these commenters. However, proof of potential entitlement to asylum; found not to have such a fear, until because the proposed regulation sets many aliens who have passed the removed,’’ the Department feels that forth a procedure for credible fear credible fear standard will not parole is appropriate only in the very review that is consistent with the ultimately be granted asylum. It should limited circumstances specified in language of section 235(b)(1)(B)(iii)(III) also be noted, as stated by one § 235.3(b)(4). The interim rule has been of the Act and provides the Attorney commenter, that these aliens are prima amended, however, to clarify that aliens General the flexibility to administer facie inadmissible to the United States. found to have a credible fear will be such a procedure, the rule was not However, the Department intends, as subject to the generally applicable changed. part of the credible fear interview detention and parole standards One commenter asserted that the process, to assess the eligibility for contained in the Act. Although parole proposed regulation that provides for an parole of aliens who have been authority is specifically limited while a alien who demonstrates a credible fear determined to have a credible fear. The credible fear determination is pending of persecution to be placed in removal discretion to release from custody will under § 235.3(b)(4), those found to have proceedings under section 240 of the remain with the district director on a a credible fear and referred for a hearing Act is incorrect. The commenter case-by-case basis. under section 240 of the Act will be maintains that IIRIRA contemplates that subject to the rule generally applicable such aliens will be limited to an Effect of Initiation of Removal to arriving aliens in § 235.3(c). In ‘‘asylum only’’ hearing with an appeal Proceedings addition, § 235.3(c) has been amended to the Board. This portion of the Several commenters objected to the to retain detention authority for aliens regulation will not be changed in the language in section 239.3 providing that whose admissibility will be determined interim rule. Section 235(b)(1)(B)(ii) of the filing of a notice to appear has no Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10321 effect in determining periods of if the alien departed the United States before, and specifically imposed those unlawful presence. These commenters after issuance of that order. The limits on the alien only. The interim noted that this section of the regulation commenters assert that if a petition for regulations will not be changed. could be interpreted to mean that the review of habeas corpus is successful, One commenter suggested that the period of time a respondent is in the petitioner should be lawfully time and numerical limitations for removal proceedings is not a period entitled to reopen his or her removal motions to reopen should be broader ‘‘authorized by the Attorney General,’’ case, even though he or she departed than changed country conditions, as which would mean that removal from the United States. They argue that provided in § 3.23(b)(4). The commenter proceedings would not toll the running such motions will promote judicial asserted that IIRIRA contains a much of time periods for purposes of the bars efficiency and economy. broader exception for individuals to to admission in section 212(a)(9)(B) of The Department has decided not to apply for asylum beyond the one year the Act. The result, the commenters adopt this suggestion and the interim deadline and that it is inconsistent for assert, would be that people would be regulations will not be changed. No the statute to provide these broader compelled to abandon their legitimate provision of the new section 242 of the exceptions if eligible applicants will be claims for relief from removal because, Act supports reversing the long barred from applying for asylum by pursuing such relief before an established rule that a motion to reopen because of the stricter motion to reopen immigration judge or on appeal to the or reconsider cannot be made in standard. As noted earlier, the Board, an individual would risk immigration proceedings by or on behalf Department has decided to drop the accruing over 180 days in ‘‘unlawful of a person after that person’s departure requirement that the changed status’’ and thereby becoming from the United States. circumstances exception to the one year filing deadline in section 208(a)(2) of inadmissible under section Departure Constituting Withdrawal of the Act be raised only through a motion 212(a)(9)(B)(i)(I) of the Act. The Motion commenters recommended that either to reopen. The Department also notes this language in section 239.2 be deleted In the proposed regulation, § 3.2(d) that the standard for reopening an or that it be replaced by a statement that did not provide that departure from the asylum case provided in 8 CFR the filing of a notice to appear tolls the United States after the filing of a motion 3.23(b)(4) is entirely consistent with the period of unlawful presence. to reopen or a motion to reconsider asylum reopening standard provided in Upon review, the Department has constitutes a withdrawal of such IIRIRA. concluded that the regulation will be motion. The Department has Retention of September 30, 1996 Cut- retained without change in the interim reconsidered the advisability of Off Date on Filing Certain Motions rule. Section 212(a)(9)(B)(iv) of the adjudicating motions to reopen and statute is clear that any period of illegal reconsider subsequent to an alien’s Some commenters indicated that presence may tolled only in very limited departure from the United States. The § 3.2(c)(2) does not retain the September circumstances. This section of the interim regulation retains the long 30, 1996 cut-off date for earlier motions statute does not include issuance of a established principal that any departure to reopen, while the proposed section charging document among those subsequent to moving to reopen or 3.2(b)(2) does retain the July 31, 1996 circumstances. The Department does reconsider constitutes a withdrawal of cut-off date for earlier motions to not agree that application of this section that motion. The Department believes reconsider. The commenters point out will deter aliens from pursuing valid that the burdens associated with the that although these dates have passed, claims for relief in removal proceedings. adjudication of motions to reopen and they should be retained to ensure the The same forms of relief, including reconsider on behalf of deported or rights of respondents who submitted asylum and adjustment of status, remain departed aliens would greatly outweigh timely motions that have not yet been available in such cases, even after any advantages this system might adjudicated. Since the commenters passage of the 180 day and one year render. Further, the Department is demonstrate that the cut-off date in time limits. Similarly, availability of confident that the immigration judge’s §§ 3.2(c)(2) and 3.23(b)(1) are not voluntary departure is unchanged. discretionary authority to stay the necessarily obsolete references, those Further clarification of the applicability deportation or removal of an alien who sections are revised in the interim of section 212(a)(9) will be included in has filed a motion to reopen or regulation to retain the appropriate cut- a separate proposed rule which the reconsider will safeguard an alien from off dates. Service is currently drafting. being inappropriately deported before Immigration Court Rules of Procedure Motions to Reopen After Departure he is heard on his motion to reopen or motion to reconsider. One commenter noted that § 3.12 From United States omitted disciplinary proceedings under A few commenters recommended that Time and Numerical Limitations on § 292.3 from the scope of the rules of motions to reopen be permitted after Filing Motions Immigration Court procedure. The departure and that the Department A number of commenters pointed out commenter correctly noted that no delete the language in § 3.2(d) of the that §§ 3.2(d) and 3.23(b) subject all explanation had been given as to why proposed rule providing that motions to parties to time and numerical limits for disciplinary proceedings were omitted reopen or reconsider cannot be made by motions to reopen in deportation and from the scope of the rules. Section or on behalf of a person after that exclusion proceedings, but apply those 292.3 is currently being revised by EOIR person’s departure from the United limits only to aliens in removal and will ultimately be moved into 8 States. These commenters contend that proceedings. These commenters argue CFR 3. It was thought that the this regulation is no longer valid that the same limitations should apply disciplinary proceedings regulations because IIRIRA substituted former to all parties in all proceedings. would have been revised and moved section 106(c) of the Act with new IIRIRA specifically mandates that into part 3 prior to publication of this section 242. New section 242 of the Act ‘‘[a]n alien may only file one motion to interim regulation and that a reference does not contain the provision of former reopen’’ in removal proceedings. to § 292.3 would not be necessary. The section 106(c) barring judicial review of Congress has imposed limits on motions disciplinary proceedings regulation, a final order of deportation or exclusion to reopen, where none existed by statute however, is still in progress. The interim 10322 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations rule will therefore place the reference to One commenter expressed concern motion for reconsideration of that disciplinary proceedings pursuant to that § 240.10 of the proposed regulation decision or to prepare a notice of appeal § 292.3 back into § 3.12. does not cross-reference § 236.1(e). with sufficient specificity to prevent a One commenter claimed that Section 236.1(e) requires that every summary dismissal by the Board under § 3.25(b), which allows the immigration detained alien be notified that he or she § 3.1(d)(1)(1–a) of the regulations. The judge to waive a hearing and enter a has the privilege of communication with Department disagrees. The proposed decision upon a stipulated request for consular authorities. The commenter regulation allows for an adequate that order, raises due process concerns proposed that § 240.10 require the articulation of the immigration judge’s because the provision requiring an Service to determine whether the alien basis for his or her decision as well as immigration judge to determine that the is covered by § 236.1(e) and therefore the underlying reasons for granting or alien’s waiver is voluntary, knowing must have an opportunity to contact the denying the request. The rule provides and intelligent is not an adequate consular officer before a responsive sufficient information for the safeguard. The interim rule does not pleading. The Service is required to respondent to prepare a notice of appeal change this provision. The requirement comply with this requirement before with sufficient specificity to prevent a that the immigration judge determine if commencement of removal proceedings. summary dismissal of appeal. For these an unrepresented alien’s waiver is In the unlikely event that the Service reasons this section has not been voluntary, knowing and intelligent failed to comply with this requirement, changed in the interim rule. before granting a stipulated request for such a procedure could unduly delay an Other comments regarding procedures an order safeguards against an otherwise routine removal case. Contact are not discussed individually and have imprudent waiver of a formal with a consular officer is unlikely to not been adopted in this interim rule. adjudication on the part of an have any bearing on a respondent’s Most recommended changes to existing unrepresented alien. Further, the inadmissibility or deportability. The procedures or commented on matters request for the order and waiver of the delay in the proceedings and its which directly resulted from changes to hearing must not only be stipulated to attendant cost would generate little the law itself. These comments will be by both the alien and the Service, but substantive benefit for the alien as a reviewed and considered in greater must also be approved by the result. detail when the final rule is prepared. One commenter expressed concern immigration judge. If an immigration Guardian Ad Litem judge is confronted with a stipulated over provisions in § 240.10(g) implementing section 241(b) of the Act. In the proposed rulemaking, the request raising due process concerns, he Those provisions allow the Attorney Department solicited comments on the or she may examine that request in the General to remove an alien to a country advisability of procedures for context of a hearing. other than as designated by the alien appointment of guardians ad litem. Comments Relating to Removal under certain circumstances. The Several thorough and detailed Hearings Under Section 240 of the Act commenter suggests a 30-day waiting comments were received. Because the period for removal from the time the issue is a complex and sensitive one, the Several commenters were concerned alien is given notice of the new country Department has decided to further with various aspects of the ordinary of removal. The Service has considered examine the issue and prepare a removal hearing process. One aspect of this suggestion and has decided not to separate rulemaking at a later date. the removal process that received change this provision in the interim Cancellation of Removal several comments was the method of rule. This procedure is not required by service of Form I–862, Notice to Appear. the Act, and would place a significant A number of commenters expressed Specifically, commenters were strain on detention resources. concern with section 240.20(b) of the concerned that service of the notice to Another commenter argued that proposed regulation, which states that appear by regular mail would be provisions in § 240.7(a) relating to the an application for cancellation of inadequate. A few commenters have admissibility of prior statements in removal may be filed only with the assumed that because service by removal proceedings were unnecessary. Immigration Court after jurisdiction has certified mail is not required in all Specifically, the commenter was vested pursuant to section 8 CFR 3.14. cases, it will not be used in any case. concerned about criminal pleas Section 3.14(a) provides that Both the statute and the regulations, resulting in less than a criminal jurisdiction vests when a charging however, allow for service by regular conviction and their effect on removal document is filed with the Immigration mail only when personal service is ‘‘not proceedings. It is always within the Court by the Service. The practical practicable.’’ Moreover, because the authority of the immigration judge to concern raised by the commenters arise regulatory provisions at issue follow assign the statement a proper weight. if the Service serves Form I–862, Notice exactly the requirements of the Act, Moreover, this provision was carried to Appear, on a respondent but does not these provisions have not been changed over from the prior regulations where it file it with the Immigration Court. If the in the interim rule. formerly existed at § 242.14(c). Thus, Service does not file a notice to appear Commenters expressed concern over this section has not been changed in the which has been served, a respondent the provision at § 240.8(d) that states interim rule. would not have access to the that it is the alien’s burden to establish Several commenters requested that Immigration Court to obtain forms of that mandatory grounds for denial of § 240.12(a) of the proposed regulation relief such as cancellation of removal or any application for relief do not apply. include language that was in former adjustment of status. Moreover, the It is well-settled that an alien bears the § 242.18(a) requiring that the decision of service of the notice to appear will cut burden of establishing eligibility for an immigration judge ‘‘shall include a off the accrual of time in continuous relief or a benefit. This provision merely discussion of the evidence and findings residence or continuous physical reflects this well-settled rule. Also, an as to deportability [inadmissibility].’’ presence for that respondent under new alien is only required to establish The commenters assert that such section 240A(d)(1) of the Act. The eligibility by a preponderance of the findings and discussion of the evidence commenters proposed that language be evidence. This provision has not been is necessary for the respondent to added to § 3.14(a) of the regulation changed in the interim rule. properly determine whether to file a allowing for jurisdiction to vest and Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10323 proceedings to commence when a goal the accreditation of each of its hearings before an immigration judge, charging document is filed by the facilities. The Krome Service Processing while arriving aliens do not. This Service or by a respondent. The Center (SPC) has received accreditation procedure maintains the status quo commenters added that § 3.14(a) already with commendation from the Joint regarding release decisions for aliens in permits immigration judges to conduct Commission of Healthcare proceedings, as discussed in the bond proceedings and credible fear Organizations (JCHO), the most supplementary information of the determinations without a charging prestigious medical accreditation that proposed regulation. document being filed with the court. can be awarded. Currently, six SPCs are One commenter stated that no Thus, they assert, there is no rational accredited by the National Commission criminal alien may be released pursuant basis to permit the initiation of those on Correctional Health Care (NCCHC), to the Transition Period Custody Rules two types of proceedings and not permit and accreditation is pending at the in section 303(b)(3) of IIRIRA where an immigration judge to consider an remaining three SPCs. The Denver there is sufficient space to detain the application for cancellation of removal contract facility is also NCCHC after a respondent files a charging accredited. Six contract facilities have individual alien. The same commenter document that previously has been American Correctional Association stated that it was not the intention of served on the respondent by the Service. (ACA) accreditation and two others Congress that EOIR continue to exercise The ability to file a charging document have begun the accreditation process. bond redetermination authority under has rested exclusively with the Service Several commenters stated that the the Transition Rules. Aside from the for a number of years, without problem. Service should require ACA standards classes of aliens covered by the This portion of the proposed regulation in local detention facilities used. Transition Rules, however, the basic will not be changed in the interim rule. Approximately 46 percent of the structure of the Rules is essentially that The issue of the initiation of removal detention space used by the Service is of section 242(a)(2) of the Act as it stood proceedings lies within the with state and local facilities. Formal prior to AEDPA, providing for the prosecutorial discretion of the Service. ACA accreditation of a state or local release of ‘‘lawfully admitted’’ criminal The Service needs to have control over facility is a matter for the state or local aliens (as well as unremovable criminal when charging documents are filed with government. The Service could not meet aliens), in the exercise of the Attorney the Immigration Courts in order to best its detention requirements by using only General’s discretion, when such aliens manage its administrative resources. facilities that have been formally can demonstrate the absence of a danger accredited. The Service has established to the community or a flight risk upon Apprehension, Custody, and Detention its own rigorous inspection program release. The Department intends to issue of Aliens that uses ACA standards for evaluation a separate proposed rule in the near The IIRIRA extended the mandatory of a facility. The Service will not use a future establishing both substantive detention provisions to additional facility that fails to pass our inspection. limitations and procedural safeguards classes of inadmissible and deportable Several commenters stated that § 236 concerning the release of criminal aliens aliens but provided an exception for of the proposed rule as written is a eligible to be considered for release certain witnesses. It also allowed the reversal of long established procedure under the Transition Rules. Attorney General the option of a that provides that a noncriminal alien is Accordingly, the interim rule has not transition period for implementation of presumptively eligible for release. The been modified. mandatory detention. The Service Service has been strongly criticized for exercised this discretion and its failure to remove aliens who are not Expedited Deportation Procedures for implemented the transition period detained. A recent report by the Aliens Convicted of Aggravated custody rules on October 9, 1996, Department of Justice Inspector General Felonies Who Are Not Lawful effective for 1 year. This interim rule shows that when aliens are released Permanent Residents amends the regulations to comply with from custody, nearly 90 percent abscond The interim rule amends the Service’s the amended Act by removing the and are not removed from the United regulations to comply with the Act, as release from custody provisions for States. The mandate of Congress, as amended, by: including aliens who have aliens who may no longer be released. evidenced by budget enhancements and lawful permanent residence on a These amendments to the regulations other legislation, is increased detention conditional basis under section 216 of will take effect upon the termination of to ensure removal. Accordingly, because the Act as being subject to expedited the transition period. As for non- the Service believes that the regulation administrative deportation procedures; criminal aliens, the rule reflects the new as written is consistent with the intent removing references to prima facie $1,500 minimum bond amount of Congress, the interim rule has not eligibility for relief; and eliminating specified by IIRIRA. Despite being modified the proposed rule in this references to release from custody, since applicants for admission, aliens who are regard. present without having been admitted Several commenters noticed a aliens subject to these proceedings are or paroled (formerly referred to as aliens discrepancy between the discussion in now statutorily ineligible for release as who entered without inspection) will be the supplementary information and the a result of changes to other sections of eligible for bond and bond substance of § 236.1(c)(5) of the the Act. redetermination. proposed regulation. The Several commenters addressed the Several commenters complained that supplementary information stated the time period for response, the role of the the Service has no national standards of Department’s intended approach, and deciding Service officer, the risk of detention. They stated that policies, clause (i) of the proposed regulation was deporting U.S. citizens or permanent practices, and decisions regarding in error. Accordingly, the interim rule residents, and other aspects of the outside communication are bewildering, removes paragraph (c)(5)(i) of § 236.1 procedure. These procedures were not arbitrary, and inconsistent. Consistent and renumbers the remaining changed from the regulation as it was with its focus on providing safe, secure, paragraphs (c)(5)(ii), (iii), and (iv). The written at § 242.25. These comments and humane detention environments, effect of this change is that inadmissible were previously addressed when the the Service has implemented detention aliens, except for arriving aliens, have regulation was published on August 24, facility improvements and has set as a available to them bond redetermination 1995. 10324 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Voluntary Departure and Employment of the voluntary departure provisions by EOIR and the Service for extended Authorization contained in the proposed rule. One periods of time. With grants and The proposed rule outlined how commenter stated that ‘‘it would be extensions of voluntary departure for voluntary departure would be handled unlawful to extend or renew voluntary extended periods of time, it was at various stages of proceedings. Since departure beyond the single period of 60 reasonable to allow for employment new section 240B of the Act and the or 120 days specified in that section.’’ authorization. Now, voluntary departure corresponding proposed regulations Another commenter stated that ‘‘These is limited to a maximum of 120 days. represented a significant departure from changes represent nothing more or less Moreover, it has long been recognized the predecessor provisions for voluntary than what has been mandated by that employment provides a magnet that departure, public comments regarding Congress, and there is no basis on which draws aliens to this country. Voluntary the Department’s approach to they can be substantively altered or departure provides an opportunity for implementation of this provision were amended in the promulgation of the an alien to complete the process of interim rule.’’ departure from the United States and particularly welcomed. In its proper form, voluntary Several commenters wrote in should not be seen as a new opportunity departure serves several functions. First, opposition to the language in § 240.25 for employment authorization. Although it allows the Service to allocate its providing that ‘‘[t[he Service may attach the granting of voluntary departure will enforcement resources more efficiently to the granting of voluntary departure not, in and of itself, cause any through case management. Second, it any conditions it deems necessary to previously approved employment saves resources by allowing aliens to ensure the alien’s timely departure from authorization to be terminated, neither depart at their own expense rather than will the granting of voluntary departure the United States.’’ Many based their at the expense of the government. provide a new opportunity to apply for opposition on their contention that the Finally, it benefits the aliens involved employment authorization. Therefore, language was ‘‘beyond the scope of the by allowing them to avoid the harsh the interim rule will eliminate the legislation.’’ However, a similar consequences of a formal order of general provision found at provision already exists in regulation. removal. Too often, however, voluntary § 274a.12(c)(12) for employment The present § 242.5(b) states that departure has been sought and obtained authorization for aliens who have been ‘‘officers * * * may deny or grant the by persons who have no real intention granted voluntary departure. application and determine the to depart. The IIRIRA was intended as Employment authorization will be conditions under which the alien’s a comprehensive reform of the retained only for beneficiaries of the departure shall be effected.’’ Similarly, immigration system and was Family Unity Program (section 301 of current § 244.1 states that voluntary specifically designed to curb abuses of the Immigration Act of 1990, Pub. L. departure may be authorized ‘‘under voluntary departure. A reading of the 101–649). such conditions as the district director voluntary departure provisions allowing Several commenters expressed shall direct.’’ Basically, the language of for extensions of voluntary departure in concern about the consequences for the proposed rule merely stated what multiple increments of 120 or 60 days certain abused immigrant spouses and was already in regulation. In addition, it inconsistent with the purpose of the children of lawful permanent residents is noted that voluntary departure is a statute and would be at best difficult to with properly filed self-petitions who privilege granted by the Service and is reconcile with the language of section were granted voluntary departure and not an entitlement to be claimed by the 240B of the Act. work authorization pending availability alien. An alien must establish both that Prior to IIRIRA, the authority for of an immigrant visa. The Department he or she is statutorily eligible for voluntary departure was found in shares the concerns of the commenters voluntary departure and that he or she section 244(e) of the Act, which and is looking at how best to address merits voluntary departure in the contained no time limitation. Now, for them outside the context of voluntary exercise of discretion. See Matter of the first time, there are statutory departure. Seda, 17 I&N Dec. 550 (BIA 1980). The restrictions limiting the time for which Several commenters objected to the ability to attach conditions to a grant of voluntary departure may be authorized. provisions for appeals, generally stating voluntary departure is necessary to the The Conference Report on H.R. 2202 that the Service could appeal approvals, Service’s ability to consider the request stated that under section 240B(a) of the yet aliens cannot appeal denials. In and is fully consistent with the intent of Act, ‘‘[p]ermission to depart voluntarily § 240.25 (voluntary departure by the Congress in enacting section 240B of the under this subsection shall not be valid Service), the appeal procedure at Act, which tightens the previously for a period exceeding 120 days * * *.’’ paragraph (e) states that a denial of an applicable voluntary departure Similarly, the Conference Report stated application for voluntary departure may provisions in order better to assure that under section 240B(b) of the Act, not be appealed, but such denial shall actual departure. Therefore, the ‘‘[t]he period for voluntary departure be without prejudice to the alien’s right language will not be changed for the cannot exceed 60 days * * *. The to apply to the immigration judge in interim rule. Department concludes that the total accordance with § 240.26. Section Several commenters objected to the period, including all extensions, may 240.26(g)(1) (voluntary departure by maximum time limits for voluntary not exceed 120 days for voluntary EOIR) places limitations for appeals departure of 120 days prior to departure granted prior to completion of only on the Service, and places none on completion of removal proceedings, and proceedings or 60 days for voluntary the alien. Section 240.26(g)(2) discusses 60 days at the completion of removal departure granted at the conclusion of an appeal of a grant or denial of proceedings. Those commenters proceedings. voluntary departure. Therefore, the indicated that the statutory language Several commenters objected to the appeal procedures in §§ 240.25(e) and limiting voluntary departure to 120 and elimination of employment 240.26(g)(1) and (2) do not allow the 60 days did not preclude an authorization for aliens who have been Service to appeal approvals while interpretation authorizing additional granted voluntary departure. Several precluding aliens from appealing extensions of voluntary departure in other commenters wrote in favor of the denials. In reviewing the comments, increments of 120 or 60 days. Several elimination. Prior to April 1, 1997, however, it became apparent that the commenters, however, wrote in support voluntary departure was often granted language of 240.26(g) appeared to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10325 prohibit the Service from appealing a immigration judge within 30 days through no fault of his own, has not grant of voluntary departure on the thereafter. Other commenters stated that obtained travel documents. The ground that the alien was not eligible for these provisions were confusing. regulation already provides, at the relief. Any such implication was The regulation has not been changed § 240.26(b)(3)(ii), that the Service in its unintended, and the language has been substantively based on these comments discretion may extend the period within corrected to reflect that both the alien but has been revised to clarify the which the alien must provide such and the Government may appeal issues applicable time periods. The revisions documentation. However, the provision of both eligibility and discretion, but make it clear that in order to obtain for extension is discretionary and not an that neither may appeal the length of the voluntary departure from an entitlement. The alien in removal voluntary departure period granted by immigration judge under section proceedings bears the responsibility to the immigration judge. 240B(a) of the Act, an alien must request demonstrate eligibility for any relief One commenter expressed concern it prior to or at the master calendar requested. The alien is encouraged to about the dangerous intersection hearing at which the case is initially work with the government of his or her between the voluntary departure time calendared for a merits hearing, which home country to obtain a valid passport limits and new section 212(a)(9)(B) of is not necessarily the first master or other travel authorization if a travel the Act, which imposes a 3- to 10-year calendar hearing. This ensures that the document is necessary for return to that bar to admission upon any alien alien is not obligated to request country. Failure to obtain necessary unlawfully present in the United States voluntary departure at preliminary travel documentation will leave the from 180 days to more than 1 year. The stages of the process, before the case is Department no option but to enforce the commenter pointed out that individuals ready to be scheduled for a merits alternate order of removal. now granted voluntary departure for hearing. The Department believes that Several commenters pointed out that extended periods of time for this allows sufficient time for the alien in a case involving an alien who was humanitarian reasons will become to consider voluntary departure and previously granted voluntary departure unlawfully present after 120 days of other options and to discuss them with and failed to depart, the proposed voluntary departure. The commenter counsel. If such requests cannot be regulation correctly reflects the statutory stated that if deferred action is to be the resolved at the master calendar hearing language that such an alien is not sole avenue of relief, the Service needs the immigration judge may take an eligible for voluntary departure or relief to develop policy guidelines so that additional 30 day period in case he or under sections 240A, 245, 248, and 249 district directors will not be afraid to she desires additional time to consider of the Act. The commenters pointed out, use it to enable the sick and the dying the voluntary departure request or to however, that the proposed regulation to receive treatment and to enable their complete the processing. In the event fails to include the statutory parents to work for health insurance. that the alien decides only after the requirement that the alien must receive The Department acknowledges that specified master calendar hearing that notice of the penalty for failing to there will be some compelling he or she wishes to request voluntary depart. The Department agrees with the humanitarian cases for which voluntary departure, such a request can still be commenters, and will change the departure cannot be extended. A district made later, but requires the concurrence language in the interim rule to reflect director will be able to give individual of the Service under § 240.26(b)(2). the requirement that a voluntary consideration for a recommendation for Finally, even without Service departure order permitting an alien to deferred action to the regional director. concurrence, the immigration judge may depart voluntarily shall inform the alien If approved by the regional director, grant voluntary departure under section of the penalties under section 240B(d) of employment authorization may be 240B(b) of the Act upon conclusion of the Act. granted under the provisions of the proceeding. Sections 240B(a)(1) and 240B(b)(1)(C) § 274a.12(c)(14). Several commenters objected to the of the statute bar aliens deportable Several commenters objected to the language at § 240.26(b)(1)(iv) under section 237(a)(2)(A)(iii) of the Act provision for revocation found in authorizing the grant of voluntary from voluntary departure. Because § 240.25(f), and stated that revocation of departure by immigration judges aliens entering without inspection are voluntary departure should require pursuant to section 240B(a) of the Act no longer considered deportable, notice and the opportunity to be heard. only if the alien waives appeal of all however, the statutory bar might be read However, this provision already exists issues. The Department believes that as allowing such aliens to obtain in the current § 242.5(c), which provides voluntary departure authorized by voluntary departure despite an for revocation of a grant of voluntary immigration judges prior to completion aggravated felony conviction. The departure without notice. The of proceedings should be for the statute would thus create the anomaly of revocation is an adverse action initiated purpose of settling cases in the interests more favorable treatment for aggravated by the Service; therefore, personal of economy and justice. If an alien felons who enter without inspection. service of the decision is required in wishes to contest any issues, the proper The Department does not believe that accordance with § 103.5a(c). However, a forum will be a merits hearing. Once a Congress intended such an anomaly. In notice of intent to revoke will not be case proceeds to a merits hearing and any event, having become aware of the issued. The interim rule will be contested issues are settled, voluntary problem, the Department now exercises amended to point out that the departure remains a form of relief; its discretion to bar such aliens from revocation shall be communicated in however, it may be authorized only receiving this form of relief. writing, and shall cite the statutory basis pursuant to the provisions of section Finally, several commenters requested for revocation. 240B(b) of the Act for voluntary clarification regarding the effect of a Several commenters objected to the departure granted at the completion of motion or appeal to the Immigration limits in § 240.26(b)(1) on grants of removal proceedings. Court, BIA, or a federal court on any voluntary departure under section Several commenters wrote that the period of voluntary departure already 240B(a) of the Act, particularly the regulation should provide an exemption granted. Since an alien granted requirement that a request for such for an alien who would otherwise have voluntary departure prior to completion relief be made at or before a master a removal order issued against him or of proceedings must concede calendar hearing, and decided by the her for failing to depart when the alien, removeability and agree to waive 10326 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations pursuit of any alternative form of relief, Reinstatement of Removal Orders of stowaway. Since IIRIRA added a clear no such appeal or motion would be Against Aliens Illegally Reentering definition of stowaway in section possible in this situation. Regarding Several commenters suggested that 101(a)(49) of the Act, the Department post-hearing voluntary departure, the aliens caught illegally reentering the saw no need to repeat the definition in Department considered several options, United States after removal should be the regulations. One commenter but has not adopted any position or provided a hearing before an objected to the 15-day detention period modified the interim rule. The immigration judge. They expressed for asylum-seeking stowaways, for which the owner of the vessel or aircraft Department has identified three possible concern that issues such as identity and bringing the stowaway is obligated for options: no tolling of any period of the propriety of the earlier removal the costs of detention. As this time voluntary departure; tolling the order would not be addressed. One frame is mandated by statute in section voluntary departure period for any commenter argued that new section 241(c)(3)(A)(ii)(III) of the Act, the 241(a)(5) of the Act was not intended to period that an appeal or motion is Department is bound by it. pending; or setting a brief, fixed period be a substantive revision of former One commenter suggested that the of voluntary departure (for example, 10 section 242(f) of the Act, which also regulation clearly define the situations days) after any appeal or motion is dealt with reinstatement of deportation where the Service should allow the resolved. The Department wishes to orders, but was merely taken from a bill carrier to remove, by aircraft, a solicit additional public comments on proposing to recodify the Act without stowaway who arrived by vessel. The these or other possible approaches to substantive change. One commenter regulation at § 241.11(c)(1) has been this issue so that it can be resolved wrote in support of these provisions, amended to include general when a final rule is promulgated. stating that they were consistent with circumstances where the Service might the language and intent of IIRIRA. favorably consider such request. These Detention and Removal of Aliens A review of the relevant statutory circumstances will also be more Ordered Removed provisions reveals that a substantive thoroughly addressed in the Inspector’s change was in fact effected in the This rule provides for the assumption Field Manual. transition from section 242(f) of the Act One commenter stated that the of custody during the removal period, to section 241(a)(5) of the Act. Section regulations should define how the allows detention beyond the period, and 242(f) of the Act provided only that the Service will make a determination that provides conditions for discretionary deportation order was to be reinstated the necessary travel documents for the release and supervision of aliens who upon illegal entry. New section stowaway cannot be obtained, so as to cannot be removed during the period. 241(a)(5) of the Act provides that the shift the costs of the stowaway’s Several commenters stated that the removal order is reinstated from its detention from the carrier to the Service, wording of the statute provides for original date, but adds the provision as stated in section 241(c)(3)(A)(ii)(II) of release of noncriminal aliens during the ‘‘and is not subject to being reopened or the Act. The Department has not had removal period and suggested that the reviewed.’’ sufficient time to consider this issue and Service adopt a policy of allowing the The Service has taken steps to ensure so will address it in the final rule. the positive identification of an alien alien to remain at liberty during the 90- apprehended and removed under this Adjustment of Status day removal period. One commenter section. In § 241.8(a)(2), the regulation Some commenters objected to the stated that the proposed rule is requires fingerprint identification before policy statement contained in the consistent with the language and intent an alien can be removed under section proposed rule that amended of IIRIRA and should be retained in the 241(a)(5) of the Act. In cases where no § 245.1(c)(8) and indicated that, as an interim rule. The plain language of the fingerprints are available and the alien exercise of discretion, the Attorney statute requires that an alien be held in disputes that he or she was previously General would not adjust the status of custody during the 90-day removal removed, the alien will not be removed arriving aliens ordered removed under period and not be released. Accordingly, under section 241(a)(5) of the Act. section 235(b)(1) of the Act or in the proposed language is retained in the Because the process mandated by the proceedings under section 240 of the interim rule. proposed rule adequately addresses the Act. Those commenters believed that Several commenters stated that the concerns expressed by the commenters, such a statement exceeded the Attorney statute requires release on an order of this provision remains unchanged in the General’s authority by eliminating an supervision after the expiration of the interim rule. immigration benefit that has not been eliminated by an act of Congress. Other 90-day removal period. One commenter Detention and Removal of Stowaways commenters suggested that the policy stated that the proposed rule is Section 241.11 implements section statement did not go far enough and that consistent with the language and intent 305 of IIRIRA, defining the the policy should be expanded to of IIRIRA and should be retained in the responsibilities for stowaways and costs include all inadmissible aliens in interim rule. Taken together, sections of detention in the new section 241 of section 240 proceedings, not just 241(a)(3) and (a)(6) of the Act provide the Act. All stowaways are deemed to be arriving aliens. In this interim rule, the that any alien who is inadmissible or inadmissible under the Act and are not Department will maintain the position who is deportable on the grounds entitled to a hearing on admissibility. taken in the proposed rule. This enumerated in paragraph (a)(6) may be Those with a credible fear of position promotes the Department’s detained beyond the removal period. persecution may seek asylum in objective of taking steps to preserve the Additionally, any alien who is a risk to accordance with 8 CFR part 208 in integrity of the visa issuance process the community or is unlikely to appear special proceedings before an while preserving the current additional for removal may be detained regardless immigration judge. The statute is very avenue for review of discretionary of the charge of inadmissibility or specific regarding most detention and denials of adjustment applications filed deportability. Accordingly, the removal responsibilities of the carriers. by aliens present without inspection proposed language is retained in the Several commenters stated that the and admission. The Department interim rule. regulations do not contain a definition continues to believe this position is Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10327 consistent with the intent of Congress past procedure, it should be removed existed in the regulations for years. when it passed IIRIRA. from this rule and proposed in a Moreover, aliens applying under the In response to the commenters who separate rulemaking. The commenter VWPP are, by statute, not entitled to a suggested this policy exceeded the specifically objected to the elimination hearing before an immigration judge, Attorney General’s statutory authority, it of the time and distance controls except on the basis of an asylum claim. is noted that section 245 of the Act imposed on Mexican nationals inherent The only change that the proposed rule clearly and unambiguously states that in the issuance of the Form I–444. As made to this provision was that the adjustment of status is a discretionary stated in the proposed rule, the Service hearing provided for VWPP asylum decision, subject to such regulatory has been unable to demonstrate that claimants is now more clearly limited to limitations as the Attorney General may there is any connection between the asylum issues only. In addition, prescribe. The same commenters stated limits on travel by persons issued Forms inadmissible VWPP applicants may be that aliens who depart using an advance I–444 and immigration violations. temporarily refused permission to enter parole authorization and whose Mexican nationals must undergo the the United States, but are not subject to applications are subsequently denied same interview process to obtain a the formal expedited removal provisions would no longer be able to renew their Border Crossing Card (BCC) or of section 235(b)(1) of the Act. adjustment application before an nonimmigrant visa as any other One commenter objected to several immigration judge. However, the applicant from any other country. New aspects of the amended language in revisions to § 245.2(a)(5)(ii) contained in validity periods have been imposed in § 217.6 relating to carrier agreements. the proposed rule preserved this recent years on the BCC, requiring Since most of the language in this procedure. periodic renewal. A Mexican national section is already contained on the Form I–775, Visa Waiver Pilot Program Rescission of Adjustment of Status entering with a BCC undergoes the same inspection process as any other Agreement, which is signed by all The interim rule includes several applicant for admission and must carriers participating in the VWPP, changes to 8 CFR part 246 that update establish eligibility as a visitor for much of this section has been removed obsolete references and bring the business or pleasure upon each entry to from the interim rule. The commenter regulation into agreement with the the United States. Presently, Mexican objected to the elimination of due statute. References to special inquiry nationals who request entry at a process safeguards in allowing officer were updated to refer to Mexican land border port-of-entry to termination of agreements by the immigration judges. References to status travel more than 30 days or beyond the Commissioner, with 5 days notice to the of permanent residence acquired five-state area, and who establish carrier, for failure to meet the terms of through outdated sections of law, and admissibility as a visitor, are issued the agreement. This is not a new any related procedures for special report Form I–94, Arrival/Departure Record, provision. The exact language has to Congress, were eliminated. In § 246.2, and allowed to proceed anywhere in the existed in the regulations since at least the provision that limited the rescission United States with no additional 1991 and has also been part of the authority of the district director to cases restrictions. Mexican BCC holders existing Form I–775 for years, and will that had been adjusted under section entering the United States by air or via be retained. The definition of round 245 of 249 or the Act was expanded to the Canadian land border are also (return) trip ticket has been revised to include all types of adjustment, thereby admitted with no restrictions. The conform with terminology used bringing the regulation into accord with elimination of the Form I–444 does not elsewhere in the regulation and carrier the statute. In § 246.6, the requirements expand the possible use of the BCC in agreement, and to provide for electronic for immigration judges’ decisions were any way; it merely standardizes the ticketing technology. changed to comport with the entry documentation issued. The Miscellaneous Changes requirements of immigration judges’ Department can see no reason to decisions found in § 240.12. The continue to impose specific controls on The proposed rule contemplated reference to Form I–151 in § 246.9 was Mexican nationals seeking admission removing 8 CFR part 215, Controls of removed because Form I–151 is no only at Mexican border ports-of-entry, Aliens Departing from the United States, longer a valid document. and so accordingly will retain in the because it was also contained in the interim rule the elimination of Form I– Department of State regulations. The Elimination of Mexican Border Visitor’s Department has decided to retain 8 CFR Permit 444 in favor of more thoroughly documenting entry with Form I–94. part 215. The proposed rule eliminated the The proposed rule contained § 240.39, Form I–444, Mexican Border Visitor’s Visa Waiver Pilot Program (VWPP) which retained material previously Permit, which is issued at land border The provisions relating to the VWPP found in § 242.22, and § 240.54, which ports-of-entry along the United States/ in 8 CFR part 217 were included in the preserved the former § 242.23. These Mexico border to Mexican nationals proposed rule primarily as part of the sections have been removed from the traveling for more than 72 hours but less review intended to streamline and interim rule since the subjects are than 30 days in duration or for more eliminate duplication in Department encompassed by §§ 3.23 and 241.8, than 25 miles from the United States/ regulations. In addition, several changes respectively. Mexico border but within the five states were made to conform to new statutory One commenter correctly noted that of Arizona, California, Nevada, New terminology and to include certain new § 216.5(e)(3)(ii) had been amended to Mexico, or Texas. The elimination was procedures created as a result of IIRIRA. allow an alien in exclusion, deportation, proposed because the Form I–444 does One commenter expressed concern that or removal proceedings to file a petition not have adequate security features to there could be confusion in § 217.4 as to for waiver only until such time as there deter counterfeiting, and provides no what constitutes fraudulent or is a final order of deportation or tracking or enforcement benefits. counterfeit documents and that aliens removal. In § 216.5(e)(3), adjudication of One commenter suggested that since could be removed without the a waiver is based upon the alien’s claim the elimination of the Form I–444 was opportunity for review by an of having been battered or subjected to not mandated by IIRIRA and immigration judge. The language in this extreme mental cruelty. The commenter represented a significant departure from section was not changed from what has stated that there is no reason to shorten 10328 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations the period allotted for a battered woman inclusion in separate regulations after removed within 90 days he or she may and child to file a battered spouse implementation of IIRIRA. be released from custody. waiver. The proposed rule change was The Department solicited comments The Commissioner has notified meant to apply generally to all aliens on the general organization and Congress pursuant to section 303(b) of filing a petition for a waiver, and was restructuring contained in the proposed IIRIRA that the Service lacks sufficient intended to add a point of finality to the regulation. No comments were received space to immediately implement the time when the petition could be filed. on this topic. Accordingly, the mandatory custody provisions. This Therefore, the interim rule has been organizational structure has not been notification will delay for 1-year full amended to clarify the general revised in the interim rule. implementation of the new mandatory custody provisions. Section 303(b) also applicability to all petitions for waiver. Regulatory Flexibility Act The regulation will permit filing of a provides for an additional 1-year delay petition for waiver at any time prior to The Attorney General, in accordance in implementation of the mandatory the second anniversary of obtaining with the Regulatory Flexibility Act (5 custody provisions upon a second permanent resident status and up to the U.S.C. 605(b)), has reviewed this certification that space and personnel point of receiving a final order in regulation and, by approving it, certifies are inadequate to comply with the exclusion, deportation, or removal that the rule will not have a significant requirement. The Service estimates that proceedings, which includes any adverse economic impact on a the cost to enforce the requirement to possible Federal court review. substantial number of small entities detain all criminal aliens will be at least Several commenters were concerned because of the following factors. This $205,000,000. Of that total, personnel about removing language at rule affects only federal government costs account for $65,284,000 and § 204.2(a)(1)(iii)(A) through (C), which operations by codifying statutory include detention and deportation dealt with commencement and amendments to the Immigration and officers ($32,873,000), investigators termination of proceedings, and Nationality Act primarily regarding the ($25,501,000), legal proceedings exemptions from the general prohibition examination, detention, and removal of personnel ($4,968,000), and against approval of visa petitions filed aliens from the United States. It affects administrative support ($1,942,000). on the basis of marriages during only individuals and does not impose Non-personnel requirements are proceedings. The language was removed any reporting or compliance projected to be at least $139,732,000 and as part of the Service’s streamlining requirements on small entities. includes increases in bed space and initiative because it was duplicative of Unfunded Mandates Reform Act of related alien custody requirements language in § 245.1(c)(8). The interim 1995 ($82,782,000—funds 3,600 beds @ rule does clarify that in visa petition $63.00 per day), increases in alien travel proceedings the burden of proof remains This rule will not result in the expenses ($36,000,000—3,600 removals on the petitioner to establish eligibility expenditure by State, local and tribal @ $1,000 each), and detention vehicle for the exemption found at section governments, in the aggregate, or by the expenses ($20,950,000). The Service is 204(g) of the Act. In addition, private sector, of $100 million or more currently in the process of projecting the § 204.2(a)(1)(iii) introductory text has in any one year, and it will not costs of the IIRIRA requirement that we been amended reflecting that significantly or uniquely affect small detain all aliens with administratively § 245.1(c)(8) has been renumbered as governments. Therefore, no actions were final orders of deportation pending their § 245.1(c)(9). deemed necessary under the provisions removal. of the Unfunded Mandates Reform Act In addition to these detention related Streamlining, Updating, and of 1995. costs, the Service estimates that the Reorganization Executive Order 12866 expenses for training employees on the Several commenters expressed provisions of the new law and the concern about sections of the regulation This rule is considered by the regulations will be $2,977,500. The cost that were identified in the Department of Justice to be a to the Service related to additional Supplementary Information of the ‘‘significant regulatory action’’ under forms or changes needed to current proposed regulation as being revised Executive Order 12866, section 3(f), forms is estimated to be $2,000,000 solely for the purpose of streamlining: because it will have a significant (until the final list of form requirements elimination of unnecessary recitation of economic impact on the federal is completed it is not possible to more statutory provisions; discussion of government in excess of $100 million. accurately assess this cost). Finally, the procedural matters; elimination of No economic impact is anticipated for Department believes there may be some duplication; or general updating. It is state and local governments. The increases needed for immigration judges emphasized that these streamlining Service projects significant increases in to review credible fear determinations changes neither created new detention-related costs due to the made under section 235(b) of the Act. requirements nor abolished any existing provisions of IIRIRA that mandate the The EOIR estimates increases in its ones. Similarly, several comments custody of criminal aliens who have costs related to IIRIRA-mandated concerned regulatory provisions that committed two or more crimes immigration judge review of credible were simply carried over from the involving moral turpitude, aliens fear determinations (which must be existing regulation, but relocated to new convicted of firearms offenses, and made under stringent time frames) and sections in order to conform with the aliens who have been convicted of an the prompt immigration judge review general regulatory outline for the aggravated felony. The type of crime that IIRIRA requires of certain expedited affected sections. Although the that will qualify as an ‘‘aggravated removal orders entered against aliens Department reviewed these comments, felony’’ has been greatly expanded claiming to be, lawful permanent none resulted in further amendments to under IIRIRA. In addition, all aliens, residents, asylees, or refugees. Further, the streamlined or reorganized even non-criminal aliens, who are EOIR projects costs associated with the paragraphs. Other commenters proposed subject to a final administrative order of possible need for an Immigration Court changes to current regulations that are removal must be held in custody until presence at certain ports-of-entry and beyond the scope of this rulemaking. the alien can be removed from the additional detention centers, which will These suggestions will be considered for United States. If the person is not result from the above-mentioned Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10329 credible fear review and expedited Paperwork Reduction Act 8 CFR Part 221 removal review process. Also, there will The information collection Aliens, Surety bonds. be costs related to the overall need for requirements contained in this rule have an increased Immigration Court been approved by the Office of 8 CFR Part 223 presence at existing Service detention Management and Budget under the Aliens, Reporting and recordkeeping centers to support the processing of the provisions of the Paperwork Reduction requirements. additional detainees that will result Act. The OMB control numbers for these from the implementation of this rule. collections are contained in 8 CFR 8 CFR Part 232 Similarly, EOIR anticipates a need for 299.5, Display of control numbers. Aliens, Public health. construction of new Immigration Courts at new detention facilities the Service List of Subjects 8 CFR Part 233 may open as a result of this rule’s 8 CFR Part 1 Administrative practice and implementation. Administrative practice and procedure, Air carriers, Government Although there are still a number of procedure, Immigration. contracts, Travel. unknown variables which could effect the total costs to EOIR to implement its 8 CFR Part 3 8 CFR Part 234 part of the new expedited removal Administrative practice and Air carriers, Aircraft, Airports, Aliens. process and to respond to the increased procedure, Immigration, Organization 8 CFR Part 235 number of detained individuals in and functions (Government agencies). proceedings under this rule, EOIR Administrative practice and 8 CFR Part 103 estimates that the total annual cost for procedure, Aliens, Immigration, EOIR could be as high as $25,000,000. Administrative practice and Reporting and recordkeeping Of that total, the cost for hiring new procedure, Authority delegations requirements. immigration judges and legal support (Government agencies), Reporting and staff is projected to be $21,300,000. The recordkeeping requirements. 8 CFR Part 236 cost for new video and audio 8 CFR Part 204 Administrative practice and teleconferencing equipment is estimated procedure, Aliens, Immigration. at $3,000,000. Training costs are Administrative practice and expected to be approximately $400,000. procedure, Immigration, Reporting and 8 CFR Part 237 Finally, forms and other support recordkeeping requirements. Aliens. requirements are estimated to cost 8 CFR Part 207 $300,000. 8 CFR Part 238 Administrative practice and Small Business Regulatory Enforcement procedure, Refugees, Reporting and Administrative practice and Fairness Act of 1996 recordkeeping requirements. procedure, Aliens. The Department of Justice considers 8 CFR Part 208 8 CFR Part 239 this rule to be a ‘‘major’’ rule under the Administrative practice and Administrative practice and Small Business Regulatory Enforcement procedure, Aliens, Immigration, procedure, Aliens, Immigration, Fairness Act of 1996 in view of the Reporting and recordkeeping Reporting and recordkeeping projected expenditures for the federal requirements. requirements. government as discussed in the preceding section. The Department 8 CFR Part 209 8 CFR Part 240 finds good cause to make this rule Aliens, Immigration, Refugees. Administrative practice and effective on April 1, 1997, in order to procedure, Aliens, Immigration. meet the statutory deadline. These rules 8 CFR Part 211 are essential for the implementation of Immigration, Passports and visas, 8 CFR Part 241 the provisions of Title III-A of IIRIRA, Reporting and recordkeeping Administrative practice and which become effective on that date requirements. procedure, Aliens, Immigration. pursuant to Section 309(a) of IIRIRA. 8 CFR Part 212 8 CFR Part 242 Executive Order 12612 Administrative practice and Administrative practice and The regulation adopted herein will procedure, Aliens, Immigration, procedure, Aliens, Immigration. not have substantial direct effects on the Passports and visas, Reporting and States, on the relationship between the recordkeeping requirements. 8 CFR Part 243 National Government and the States, or 8 CFR Part 213 Administrative practice and on the distribution of power and procedure, Aliens. responsibilities among the various Immigration, Surety bonds. 8 CFR Part 244 levels of government. Therefore, in 8 CFR Part 214 accordance with Executive Order 12612, Administrative practice and Administrative practice and it is determined that this rule does not procedure, Aliens. procedure, Aliens. have sufficient Federalism implications to warrant the preparation of a 8 CFR Part 216 8 CFR Part 245 Federalism Assessment. Administrative practice and Aliens, Immigration, Reporting and recordkeeping requirements. Executive Order 12988 procedure, Aliens. 8 CFR Part 246 This interim rule meets the applicable 8 CFR Part 217 standards set forth in section 3(a) and Air carriers, Aliens, Maritime carriers, Administrative practice and 3(b)(2) of Executive Order 12988. Passports and visas. procedure, Aliens, Immigration. 10330 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

8 CFR Part 248 appoints as an administrative judge (2) Decisions of Immigration Judges in Aliens, Immigration, Reporting and within the Executive Office for deportation cases, as provided in 8 CFR recordkeeping requirements. Immigration Review, qualified to part 240, Subpart E, except that no conduct specified classes of appeal shall lie seeking review of a 8 CFR Part 249 proceedings, including a hearing under length of a period of voluntary Aliens, Immigration, Reporting and section 240 of the Act. An immigration departure granted by an Immigration recordkeeping requirements. judge shall be subject to such Judge under section 244E of the Act as supervision and shall perform such it existed prior to April 1, 1997. 8 CFR Part 251 duties as the Attorney General shall (3) Decisions of Immigration Judges in Air carriers, Aliens, Crewmen, prescribe, but shall not be employed by removal proceedings, as provided in 8 Maritime carriers, Reporting and the Immigration and Naturalization CFR part 240, except that no appeal recordkeeping requirements. Service. shall lie seeking review of the length of a period of voluntary departure granted 8 CFR Part 252 * * * * * (q) The term arriving alien means an by an immigration judge under section Air carriers, Airmen, Aliens, alien who seeks admission to or transit 240B of the Act or part 240 of this Crewmen, Maritime carriers, Reporting through the United States, as provided chapter. and recordkeeping requirements. in 8 CFR part 235, at a port-of-entry, or * * * * * 8 CFR Part 253 an alien who is interdicted in (7) Determinations relating to bond, Air carriers, Airmen, Aliens, Maritime international or United States waters parole, or detention of an alien as carriers, Reporting and recordkeeping and brought into the United States by provided in 8 CFR part 236, Subpart A requirements, Seamen. any means, whether or not to a and 8 CFR part 240, Subpart E. designated port-of-entry, and regardless * * * * * 8 CFR Part 274a of the means of transport. An arriving (9) Decisions of Immigration Judges in Administrative practice and alien remains such even if paroled asylum proceedings pursuant to procedure, Aliens, Employment, pursuant to section 212(d)(5) of the Act. § 208.2(b) of this chapter. Penalties, Reporting and recordkeeping (r) The term respondent means a (10) Decisions of Immigration Judges requirements. person named in a Notice to Appear relating to Temporary Protected Status issued in accordance with section 239(a) as provided in 8 CFR part 244. 8 CFR Part 286 of the Act, or in an Order to Show Cause * * * * * Air carriers, Immigration, Reporting issued in accordance with § 242.1 of this 5. Section 3.2 is amended by: and recordkeeping requirements. chapter as it existed prior to April 1, a. Revising the section heading; 8 CFR Part 287 1997. b. Revising paragraph (b)(2); (s) The term Service counsel means c. Revising paragraph (c)(2) and (c)(3), Immigration, Law enforcement any immigration officer assigned to and by officers. represent the Service in any proceeding d. Revising paragraphs (d) through 8 CFR Part 299 before an immigration judge or the (g)(1), to read as follows: Board of Immigration Appeals. Immigration, Reporting and (t) The term aggravated felony means § 3.2 Reopening or reconsideration before recordkeeping requirements. a crime (or a conspiracy or attempt to the Board of Immigration Appeals. 8 CFR Part 316 commit a crime) described in section * * * * * (b) * * * Citizenship and naturalization, 101(a)(43) of the Act. This definition is (2) A motion to reconsider a decision Reporting and recordkeeping applicable to any proceeding, must be filed with the Board within 30 requirements. application, custody determination, or adjudication pending on or after days after the mailing of the Board 8 CFR Part 318 September 30, 1996, but shall apply decision or on or before July 31, 1996, Citizenship and naturalization. under section 276(b) of the Act only to whichever is later. A party may file only violations of section 276(a) of the Act one motion to reconsider any given 8 CFR Part 329 occurring on or after that date. decision and may not seek Citizenship and naturalization, reconsideration of a decision denying a Military Personnel, Veterans. PART 3ÐEXECUTIVE OFFICE FOR previous motion to reconsider. In Accordingly, chapter I of title 8 of the IMMIGRATION REVIEW removal proceedings pursuant to section 240 of the Act, an alien may file only Code of Federal Regulations is amended 3. The authority citation for part 3 as follows: one motion to reconsider a decision that continues to read as follows: the alien is removable from the United PART 1ÐDEFINITIONS Authority: 5 U.S.C. 301; 8 U.S.C. 1103, States. 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, (c) * * * 1. The authority citation for part 1 is 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; (2) Except as provided in paragraph revised to read as follows: 3 CFR, 1949–1953 Comp., p. 1002. (c)(3) of this section, a party may file Authority: 8 U.S.C. 1101; 8 CFR part 2. 4. Section 3.1 is amended by revising only one motion to reopen deportation 2. Section 1.1 is amended by revising paragraphs (b)(1), (b)(2), (b)(3), (b)(7), or exclusion proceedings (whether paragraph (l), and by adding new (b)(9), and (b)(10) to read as follows: before the Board or the Immigration Judge) and that motion must be filed no paragraphs (q) through (t) to read as § 3.1 General authorities. follows: later than 90 days after the date on * * * * * which the final administrative decision § 1.1 Definitions. (b) * * * was rendered in the proceeding sought * * * * * (1) Decisions of Immigration Judges in to be reopened, or on or before (l) The term immigration judge means exclusion cases, as provided in 8 CFR September 30, 1996, whichever is later. an attorney whom the Attorney General part 240, Subpart D. Except as provided in paragraph (c)(3) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10331 of this section, an alien may file only include a statement by or on behalf of § 3.9 Chief Immigration Judge. one motion to reopen removal the moving party declaring whether the The Chief Immigration Judge shall be proceedings (whether before the Board subject of the order is also the subject responsible for the general supervision, or the Immigration Judge) and that of any pending criminal proceeding direction, and scheduling of the motion must be filed no later than 90 under the Act, and, if so, the current Immigration Judges in the conduct of days after the date on which the final status of that proceeding. If a motion to the various programs assigned to them. administrative decision was rendered in reopen or reconsider seeks discretionary The Chief Immigration Judge shall be the proceeding sought to be reopened. relief, the motion shall include a assisted by Deputy Chief Immigration (3) In removal proceedings pursuant statement by or on behalf of the moving Judges and Assistant Chief Immigration to section 240 of the Act, the time party declaring whether the alien for Judges in the performance of his or her limitation set forth in paragraph (c)(2) of whose relief the motion is being filed is duties. These shall include, but are not this section shall not apply to a motion subject to any pending criminal limited to: to reopen filed pursuant to the prosecution and, if so, the nature and (a) Establishment of operational provisions of § 3.23(b)(4)(ii). The time current status of that prosecution. policies; and and numerical limitations set forth in (f) Stay of deportation. Except where (b) Evaluation of the performance of paragraph (c)(2) of this section shall not a motion is filed pursuant to the Immigration Courts, making appropriate apply to a motion to reopen provisions of §§ 3.23(b)(4)(ii) and reports and inspections, and taking proceedings: 3.23(b)(4)(iii)(A), the filing of a motion corrective action where indicated. (i) Filed pursuant to the provisions of to reopen or a motion to reconsider shall 9. Section 3.10 is revised to read as § 3.23(b)(4)(iii)(A)(1) or not stay the execution of any decision follows: § 3.23(b)(4)(iii)(A)(2); made in the case. Execution of such § 3.10 Immigration Judges. (ii) To apply or reapply for asylum or decision shall proceed unless a stay of Immigration Judges, as defined in 8 withholding of deportation based on execution is specifically granted by the CFR part 1, shall exercise the powers changed circumstances arising in the Board, the Immigration Judge, or an and duties in this chapter regarding the country of nationality or in the country authorized officer of the Service. to which deportation has been ordered, conduct of exclusion, deportation, (g) Filing procedures. (1) English removal, and asylum proceedings and if such evidence is material and was not language, entry of appearance, and proof available and could not have been such other proceedings which the of service requirements. A motion and Attorney General may assign them to discovered or presented at the previous any submission made in conjunction hearing; conduct. with a motion must be in English or 10. Section 3.11 is revised to read as (iii) Agreed upon by all parties and accompanied by a certified English follows: jointly filed. Notwithstanding such translation. If the moving party, other agreement, the parties may contest the than the Service, is represented, Form § 3.11 Administrative control Immigration issues in a reopened proceeding; or EOIR–27, Notice of Entry of Appearance Courts. (iv) Filed by the Service in exclusion as Attorney or Representative Before the An administrative control or deportation proceedings when the Board, must be filed with the motion. In Immigration Court is one that creates basis of the motion is fraud in the all cases, the motion shall include proof and maintains Records of Proceedings original proceeding or a crime that of service on the opposing party of the for Immigration Courts within an would support termination of asylum in motion and all attachments. If the assigned geographical area. All accordance with § 208.22(f) of this moving party is not the Service, service documents and correspondence chapter. of the motion shall be made upon the pertaining to a Record of Proceeding * * * * * Office of the District Counsel for the shall be filed with the Immigration (d) Departure, deportation, or district in which the case was Court having administrative control removal. A motion to reopen or a completed before the Immigration over that Record of Proceeding and shall motion to reconsider shall not be made Judge. not be filed with any other Immigration by or on behalf of a person who is the * * * * * Court. A list of the administrative subject of exclusion, deportation, or 6. The following sentence is added to control Immigration Courts with their removal proceedings subsequent to his the end of § 3.4: assigned geographical areas will be or her departure from the United States. made available to the public at any Any departure from the United States, § 3.4 Withdrawal of appeal. Immigration Court. including the deportation or removal of ** * Departure from the United a person who is the subject of exclusion, Subpart CÐImmigration CourtÐRules States of a person who is the subject of of Procedure deportation, or removal proceedings, deportation or removal proceedings, occurring after the filing of a motion to except for arriving aliens as defined in 11. In part 3, the heading of Subpart reopen or a motion to reconsider, shall § 1.1(q) of this chapter, subsequent to C is revised as set forth above. constitute a withdrawal of such motion. the taking of an appeal, but prior to a 12. Section 3.12 is amended by (e) Judicial proceedings. Motions to decision thereon, shall constitute a revising the last sentence, and adding a reopen or reconsider shall state whether withdrawal of the appeal, and the initial new sentence at the end of the section, the validity of the exclusion, decision in the case shall be final to the to read as follows: deportation, or removal order has been same extent as though no appeal had § 3.12 Scope of rules. or is the subject of any judicial been taken. proceeding and, if so, the nature and ** * Except where specifically date thereof, the court in which such Subpart BÐImmigration Court stated, the rules in this subpart apply to proceeding took place or is pending, matters before Immigration Judges, and its result or status. In any case in 7. In Part 3, the heading of Subpart B including, but not limited to, which an exclusion, deportation, or is revised as set forth above. deportation, exclusion, removal, bond, removal order is in effect, any motion to 8. Section 3.9 is revised to read as rescission, departure control, asylum reopen or reconsider such order shall follows: proceedings, and disciplinary 10332 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations proceedings under § 292.3 of this allegiance in administrative ‘‘respondent/applicant’’ to read ‘‘alien’’, chapter. The sole procedures for review naturalization ceremonies conducted by and by revising the phrase ‘‘the of credible fear determinations by the Service in accordance with appropriate EOIR form’’ to read ‘‘Form Immigration Judges are provided for in § 337.2(b) of this chapter. EOIR–28’’. § 3.42. 15. Section 3.15 is amended by: 18. Section 3.18 is revised to read as 13. Section 3.13 is revised to read as a. Revising the section heading; follows: follows: b. Amending paragraph (b) introductory text and paragraph (b)(6), § 3.18 Scheduling of cases. § 3.13 Definitions. by adding the phrase ‘‘and Notice to (a) The Immigration Court shall be As used in this subpart: Appear’’ immediately after the phrase responsible for scheduling cases and Administrative control means ‘‘Order to Show Cause’’; providing notice to the government and custodial responsibility for the Record c. Redesignating paragraph (c) as (d); the alien of the time, place, and date of of Proceeding as specified in § 3.11. d. Adding a new paragraph (c); and by hearings. Charging document means the written e. Revising newly redesignated (b) In removal proceedings pursuant instrument which initiates a proceeding paragraph (d), to read as follows: to section 240 of the Act, the Service before an Immigration Judge. For shall provide in the Notice to Appear, proceedings initiated prior to April 1, § 3.15 Contents of the order to show cause and notice to appear and notification of the time, place and date of the initial 1997, these documents include an Order change of address. removal hearing, where practicable. If to Show Cause, a Notice to Applicant that information is not contained in the for Admission Detained for Hearing * * * * * (c) Contents of the Notice to Appear Notice to Appear, the Immigration Court before Immigration Judge, and a Notice for Removal Proceedings. In the Notice shall be responsible for scheduling the of Intention to Rescind and Request for to Appear for removal proceedings, the initial removal hearing and providing Hearing by Alien. For proceedings Service shall provide the following notice to the government and the alien initiated after April 1, 1997, these administrative information to the of the time, place, and date of hearing. documents include a Notice to Appear, Immigration Court. Failure to provide In the case of any change or a Notice of Referral to Immigration any of these items shall not be postponement in the time and place of Judge, and a Notice of Intention to construed as affording the alien any such proceeding, the Immigration Court Rescind and Request for Hearing by substantive or procedural rights. shall provide written notice to the alien Alien. (1) The alien’s names and any known specifying the new time and place of the Filing means the actual receipt of a aliases; proceeding and the consequences under document by the appropriate (2) The alien’s address; section 240(b)(5) of the Act of failing, Immigration Court. (3) The alien’s registration number, except under exceptional circumstances Service means physically presenting with any lead alien registration number as defined in section 240(e)(1) of the or mailing a document to the with which the alien is associated; Act, to attend such proceeding. No such appropriate party or parties; except that (4) The alien’s alleged nationality and notice shall be required for an alien not an Order to Show Cause or Notice of citizenship; and in detention if the alien has failed to Deportation Hearing shall be served in (5) The language that the alien provide the address required in section person to the alien, or by certified mail understands. 239(a)(1)(F) of the Act. to the alien or the alien’s attorney and (d) Address and telephone number. a Notice to Appear or Notice of Removal (1) If the alien’s address is not provided § 3.19 [Amended] Hearing shall be served to the alien in on the Order to Show Cause or Notice 19. Section 3.19(a) is amended by person, or if personal service is not to Appear, or if the address on the Order revising the reference to ‘‘part 242 of practicable, shall be served by regular to Show Cause or Notice to Appear is this chapter’’ to read ‘‘8 CFR part 236’’ mail to the alien or the alien’s attorney incorrect, the alien must provide to the wherever it appears in the paragraph. of record. Immigration Court where the charging 20. Section 3.19(d) is amended in the 14. Section § 3.14 is amended by: document has been filed, within five first sentence by adding the term ‘‘or a. Revising paragraph (a), and by days of service of that document, a removal’’ immediately after the word b. Adding a new paragraph (c) to read written notice of an address and ‘‘deportation’’. as follows: telephone number at which the alien 21. Section 3.19 is amended by § 3.14 Jurisdiction and commencement of can be contacted. The alien may satisfy removing paragraph (h). proceedings. this requirement by completing and 22. In § 3.20, paragraph (a) is revised to read as follows: (a) Jurisdiction vests, and proceedings filing Form EOIR–33. before an Immigration Judge commence, (2) Within five days of any change of § 3.20 Change of venue. address, the alien must provide written when a charging document is filed with (a) Venue shall lie at the Immigration the Immigration Court by the Service. notice of the change of address on Form EOIR–33 to the Immigration Court Court where jurisdiction vests pursuant The charging document must include a to § 3.14. certificate showing service on the where the charging document has been * * * * * opposing party pursuant to § 3.32 which filed, or if venue has been changed, to 23. Section 3.23 is amended by indicates the Immigration Court in the Immigration Court to which venue revising the section heading and which the charging document is filed. has been changed. paragraph (b) to read as follows: However, no charging document is § 3.16 [Amended] required to be filed with the 16. Section 3.16(b) is amended by § 3.23 Reopening or Reconsideration before the Immigration Court. Immigration Court to commence bond revising the term ‘‘respondent/ proceedings pursuant to §§ 3.19, applicant’’ to read ‘‘alien’’. (a) * * * 236.1(d) and 240.2(b) of this chapter. (b) Before the Immigration Court. (1) * * * * * § 3.17 [Amended] In general. An Immigration Judge may (c) Immigration Judges have 17. Section 3.17(a) is amended in the upon his or her own motion at any time, jurisdiction to administer the oath of first sentence by revising the term or upon motion of the Service or the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10333 alien, reopen or reconsider any case in Judge must be filed with the motion to reopen for the purpose of which he or she has made a decision, Immigration Court having providing the alien an opportunity to unless jurisdiction is vested with the administrative control over the Record apply for any form of discretionary Board of Immigration Appeals. Subject of Proceeding. A motion to reopen or a relief will not be granted if it appears to the exceptions in this paragraph and motion to reconsider shall include a that the alien’s right to apply for such paragraph (b)(4), a party may file only certificate showing service on the relief was fully explained to him or her one motion to reconsider and one opposing party of the motion and all by the Immigration Judge and an motion to reopen proceedings. A motion attachments. If the moving party is not opportunity to apply therefore was to reconsider must be filed within 30 the Service, service of the motion shall afforded at the hearing, unless the relief days of the date of entry of a final be made upon the Office of the District is sought on the basis of circumstances administrative order of removal, Counsel for the district in which the that have arisen subsequent to the deportation, or exclusion, or on or case was completed. If the moving hearing. Pursuant to section 240A(d)(1) before July 31, 1996, whichever is later. party, other than the Service, is of the Act, a motion to reopen A motion to reopen must be filed within represented, a Form EOIR–28, Notice of proceedings for consideration or further 90 days of the date of entry of a final Appearance as Attorney or consideration of an application for relief administrative order of removal, Representative Before an Immigration under section 240A(a) (cancellation of deportation, or exclusion, or on or Judge must be filed with the motion. removal for certain permanent before September 30, 1996, whichever is The motion must be filed in duplicate residents) or 240A(b) (cancellation of later. A motion to reopen or to with the Immigration Court, removal and adjustment of status for reconsider shall not be made by or on accompanied by a fee receipt. certain nonpermanent residents) may be behalf of a person who is the subject of (iii) Assignment to an Immigration granted only if the alien demonstrates removal, deportation, or exclusion Judge. If the Immigration Judge is that he or she was statutorily eligible for proceedings subsequent to his or her unavailable or unable to adjudicate the such relief prior to the service of a departure from the United States. Any motion to reopen or reconsider, the notice to appear, or prior to the departure from the United States, Chief Immigration Judge or his or her commission of an offense referred to in including the deportation or removal of delegate shall reassign such motion to section 212(a)(2) of the Act that renders a person who is the subject of exclusion, another Immigration Judge. the alien inadmissible or removable deportation, or removal proceedings, (iv) Replies to motions; decision. The under sections 237(a)(2) of the Act or occurring after the filing of a motion to Immigration Judge may set and extend (a)(4), whichever is earliest. The reopen or a motion to reconsider shall time limits for replies to motions to Immigration Judge has discretion to constitute a withdrawal of such motion. reopen or reconsider. A motion shall be deny a motion to reopen even if the The time and numerical limitations set deemed unopposed unless timely moving party has established a prima forth in this paragraph do not apply to response is made. The decision to grant facie case for relief. motions by the Service in removal or deny a motion to reopen or a motion (4) Exceptions to filing deadlines.—(i) proceedings pursuant to section 240 of to reconsider is within the discretion of Asylum. The time and numerical the Act. Nor shall such limitations the Immigration Judge. limitations set forth in paragraph (b)(1) apply to motions by the Service in (v) Stays. Except in cases involving in of this section shall not apply if the exclusion or deportation proceedings, absentia orders, the filing of a motion to basis of the motion is to apply for relief when the basis of the motion is fraud in reopen or a motion to reconsider shall under section 208 or 241(b)(3) of the Act the original proceeding or a crime that not stay the execution of any decision and is based on changed country would support termination of asylum in made in the case. Execution of such conditions arising in the country of accordance with § 208.22(f) of this decision shall proceed unless a stay of nationality or the country to which chapter. execution is specifically granted by the removal has been ordered, if such (i) Form and contents of the motion. Immigration Judge, the Board, or an evidence is material and was not The motion shall be in writing and authorized officer of the Service. available and could not have been signed by the affected party or the (2) Motion to reconsider. A motion to discovered or presented at the previous attorney or representative of record, if reconsider shall state the reasons for the proceeding. The filing of a motion to any. The motion and any submission motion by specifying the errors of fact reopen under this section shall not made in conjunction with it must be in or law in the Immigration Judge’s prior automatically stay the removal of the English or accompanied by a certified decision and shall be supported by alien. However, the alien may request a English translation. Motions to reopen pertinent authority. Such motion may stay and, if granted by the Immigration or reconsider shall state whether the not seek reconsideration of a decision Judge, the alien shall not be removed validity of the exclusion, deportation, or denying previous motion to reconsider. pending disposition of the motion by removal order has been or is the subject (3) Motion to reopen. A motion to the Immigration Judge. If the original of any judicial proceeding and, if so, the reopen proceedings shall state the new asylum application was denied based nature and date thereof, the court in facts that will be proven at a hearing to upon a finding that it was frivolous, which such proceeding took place or is be held if the motion is granted and then the alien is ineligible to file either pending, and its result or status. In any shall be supported by affidavits and a motion to reopen or reconsider, or for case in which an exclusion, deportation, other evidentiary material. Any motion a stay of removal. or removal order is in effect, any motion to reopen for the purpose of acting on (ii) Order entered in absentia in to reopen or reconsider such order shall an application for relief must be asylum proceedings or removal include a statement by or on behalf of accompanied by the appropriate proceedings. An order of removal the moving party declaring whether the application for relief and all supporting entered in absentia in asylum subject of the order is also the subject documents. A motion to reopen will not proceedings pursuant to § 208.2(b) of of any pending criminal proceeding be granted unless the Immigration Judge this chapter or in removal proceedings under the Act, and, if so, the current is satisfied that evidence sought to be pursuant to section 240(b)(5) of the Act status of that proceeding. offered is material and was not available may be rescinded only upon a motion (ii) Filing. Motions to reopen or and could not have been discovered or to reopen filed within 180 days after the reconsider a decision of an Immigration presented at the former hearing. A date of the order of removal, if the alien 10334 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations demonstrates that the failure to appear (iv) Jointly filed motions. The time (7) A statement that the alien will was because of exceptional and numerical limitations set forth in accept a written order for his or her circumstances as defined in section paragraph (b)(1) of this section shall not deportation, exclusion or removal as a 240(e)(1) of the Act. An order entered in apply to a motion to reopen agreed upon final disposition of the proceedings; and absentia pursuant to § 208.2(b) of this by all parties and jointly filed. (8) A waiver of appeal of the written chapter or pursuant to section 240(b)(5) 24. Section 3.25 is revised to read as order of deportation or removal. may be rescinded upon a motion to follows: (c) Telephonic or video hearings. An reopen filed at any time if the alien Immigration Judge may conduct § 3.25 Form of the proceeding. demonstrates that he or she did not hearings through video conference to receive notice in accordance with (a) Waiver of presence of the parties. the same extent as he or she may sections 239(a)(1) or (2) of the Act, or The Immigration Judge may, for good conduct hearings in person. An the alien demonstrates that he or she cause, and consistent with section Immigration Judge may also conduct a was in Federal or state custody and the 240(b) of the Act, waive the presence of hearing through a telephone conference, failure to appear was through no fault of the alien at a hearing when the alien is but an evidentiary hearing on the merits the alien. However, in accordance with represented or when the alien is a minor may only be conducted through a section 240(b)(5)(B) of the Act, no child at least one of whose parents or telephone conference with the consent written notice of a change in time or whose legal guardian is present. When of the alien involved after the alien has place of proceeding shall be required if it is impracticable by reason of an been advised of the right to proceed in the alien has failed to provide the alien’s mental incompetency for the person or, where available, through a address required under section alien to be present, the presence of the video conference, except that credible 239(a)(1)(F) of the Act. The filing of a alien may be waived provided that the fear determinations may be reviewed by motion under this paragraph shall stay alien is represented at the hearing by an the Immigration Judge through a the removal of the alien pending attorney or legal representative, a near telephone conference without the disposition of the motion by the relative, legal guardian, or friend. consent of the alien. Immigration Judge. An alien may file (b) Stipulated request for order; 25. Section 3.26 is amended by only one motion pursuant to this waiver of hearing. An Immigration Judge revising paragraph (c) and adding a new paragraph. may enter an order of deportation, paragraph (d) to read as follows: exclusion or removal stipulated to by (iii) Order entered in absentia in § 3.26 In absentia hearings. deportation or exclusion proceedings. the alien (or the alien’s representative) (A) An order entered in absentia in and the Service. The Immigration Judge * * * * * deportation proceedings may be may enter such an order without a (c) In any removal proceeding before rescinded only upon a motion to reopen hearing and in the absence of the parties an Immigration Judge in which the alien filed: based on a review of the charging fails to appear, the Immigration Judge document, the written stipulation, and shall order the alien removed in (1) Within 180 days after the date of supporting documents, if any. If the absentia if: the order of deportation if the alien alien is unrepresented, the Immigration (1) The Service establishes by clear, demonstrates that the failure to appear Judge must determine that the alien’s unequivocal, and convincing evidence was because of exceptional waiver is voluntary, knowing, and that the alien is removable; and circumstances beyond the control of the intelligent. The stipulated request and (2) The Service establishes by clear, alien (e.g., serious illness of the alien or required waivers shall be signed on unequivocal, and convincing evidence serious illness or death of an immediate behalf of the government and by the that written notice of the time and place relative of the alien, but not including alien and his or her attorney or of proceedings and written notice of the less compelling circumstances); or representative, if any. The attorney or consequences of failure to appear were (2) At any time if the alien representative shall file a Notice of provided to the alien. demonstrates that he or she did not Appearance in accordance with (d) Written notice to the alien shall be receive notice or if the alien § 3.16(b). A stipulated order shall considered sufficient for purposes of demonstrates that he or she was in constitute a conclusive determination of this section if it was provided at the federal or state custody and the failure the alien’s deportability or removability most recent address provided by the to appear was through no fault of the from the United States. The stipulation alien. If the respondent fails to provide alien. shall include: his or her address as required under (B) A motion to reopen exclusion (1) An admission that all factual § 3.15(d), no written notice shall be hearings on the basis that the allegations contained in the charging required for an Immigration Judge to Immigration Judge improperly entered document are true and correct as proceed with an in absentia hearing. an order of exclusion in absentia must written; This paragraph shall not apply in the be supported by evidence that the alien (2) A concession of deportability or event that the Immigration Judge waives had reasonable cause for his failure to inadmissibility as charged; the appearance of an alien under § 3.25. appear. (3) A statement that the alien makes 26. Section 3.27 is amended by (C) The filing of a motion to reopen no application for relief under the Act; revising paragraph (c) to read as follows: under paragraph (b)(4)(iii)(A) of this (4) A designation of a country for section shall stay the deportation of the deportation or removal under section § 3.27 Public access to hearings. alien pending decision on the motion 241(b)(2)(A)(i) of the Act; * * * * * and the adjudication of any properly (5) A concession to the introduction (c) In any proceeding before an filed administrative appeal. of the written stipulation of the alien as Immigration Judge concerning an (D) The time and numerical an exhibit to the Record of Proceeding; abused alien spouse, the hearing and the limitations set forth in paragraph (b)(1) (6) A statement that the alien Record of Proceeding shall be closed to of this section shall not apply to a understands the consequences of the the public unless the abused spouse motion to reopen filed pursuant to the stipulated request and that the alien agrees that the hearing and the Record provisions of paragraph (b)(4)(iii)(A) of enters the request voluntarily, of Proceeding shall be open to the this section. knowingly, and intelligently; public. In any proceeding before an Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10335

Immigration Judge concerning an (3) Issuance of subpoena. Upon being evidence any oral or written statement abused alien child, the hearing and the satisfied that a witness will not appear which is material and relevant to any Record of Proceeding shall be closed to and testify or produce documentary issue in the review. The testimony of the public. evidence and that the witness’ evidence the alien shall be under oath or 27. Section 3.30 is revised to read as is essential, the Immigration Judge shall affirmation administered by the follows: issue a subpoena. The subpoena shall Immigration Judge. If an interpreter is state the title of the proceeding and § 3.30 Additional charges in deportation or necessary, one will be provided by the removal hearings. shall command the person to whom it Immigration Court. The Immigration is directed to attend and to give At any time during deportation or Judge shall determine whether the testimony at a time and place specified. review shall be in person, or through removal proceedings, additional or The subpoena may also command the substituted charges of deportability and/ telephonic or video connection (where person to whom it is directed to available). The alien may consult with or factual allegations may be lodged by produce the books, papers, or a person or persons of the alien’s the Service in writing. The alien shall be documents specified in the subpoena. served with a copy of these additional (4) Appearance of witness. If the choosing prior to the review. charges and/or allegations and the witness is at a distance of more than 100 (d) Standard of review. The Immigration Judge shall read them to miles from the place of the proceeding, Immigration Judge shall make a de novo the alien. The Immigration Judge shall the subpoena shall provide for the determination as to whether there is a advise the alien, if he or she is not witness’ appearance at the Immigration significant possibility, taking into represented by counsel, that the alien Court nearest to the witness to respond account the credibility of the statements may be so represented. The alien may be to oral or written interrogatories, unless made by the alien in support of the given a reasonable continuance to there is no objection by any party to the alien’s claim and such other facts as are respond to the additional factual witness’ appearance at the proceeding. known to the Immigration Judge, that allegations and charges. Thereafter, the (5) Service. A subpoena issued under provision of § 240.10(b) of this chapter the alien could establish eligibility for this section may be served by any asylum under section 208 of the Act. relating to pleading shall apply to the person over 18 years of age not a party additional factual allegations and to the case. (e) Timing. The Immigration Judge charges. (6) Invoking aid of court. If a witness shall conclude the review to the 28. Section 3.35 is revised to read as neglects or refuses to appear and testify maximum extent practicable within 24 follows: as directed by the subpoena served hours, but in no case later than 7 days after the date the supervisory asylum § 3.35 Depositions and subpoenas. upon him or her in accordance with the provisions of this section, the officer has approved the asylum officer’s (a) Depositions. If an Immigration Immigration Judge issuing the subpoena negative credible fear determination Judge is satisfied that a witness is not shall request the United States Attorney issued on Form I–869, Record of reasonably available at the place of for the district in which the subpoena Negative Credible Fear Finding and hearing and that said witness’ testimony was issued to report such neglect or or other evidence is essential, the Request for Review. refusal to the United States District Immigration Judge may order the taking (f) Decision. If an Immigration Judge Court and to request such court to issue of deposition either at his or her own determines that an alien has a credible an order requiring the witness to appear instance or upon application of a party. fear of persecution, the Immigration and testify and to produce the books, Such order shall designate the official Judge shall vacate the order entered papers or documents designated in the by whom the deposition shall be taken, subpoena. pursuant to section 235(b)(1)(B)(iii)(I) of may prescribe and limit the content, 29. In Subpart C, a new § 3.42 is the Act. Subsequent to the order being scope, or manner of taking the added to read as follows: vacated, the Service shall issue and file deposition, and may direct the Form I–862, Notice to Appear, with the production of documentary evidence. § 3.42 Review of credible fear Immigration Court to commence (b) Subpoenas issued subsequent to determination. removal proceedings. The alien shall commencement of proceedings. (1) (a) Referral. Jurisdiction for an have the opportunity to apply for General. In any proceeding before an Immigration Judge to review an adverse asylum in the course of removal Immigration Judge, other than under 8 credible fear finding by an asylum proceedings pursuant to section 240 of CFR part 335, the Immigration Judge officer pursuant to section 235(b)(1)(B) the Act. If an Immigration Judge shall have exclusive jurisdiction to issue of the Act shall commence with the determines that an alien does not have subpoenas requiring the attendance of filing by the Service of Form I–863, a credible fear of persecution, the witnesses or for the production of Notice of Referral to Immigration Judge. Immigration Judge shall affirm the books, papers and other documentary The Service shall also file with the asylum officer’s determination and evidence, or both. An Immigration Judge notice of referral a copy of the written may issue a subpoena upon his or her record of determination as defined in remand the case to the Service for own volition or upon application of the section 235(b)(1)(B)(iii)(II) of the Act, execution of the removal order entered Service or the alien. including a copy of the alien’s written pursuant to section 235(b)(1)(B)(iii)(I) of (2) Application for subpoena. A party request for review, if any. the Act. No appeal shall lie from a applying for a subpoena shall be (b) Record of proceeding. The review of an adverse credible fear required, as a condition precedent to its Immigration Court shall create a Record determination made by an Immigration issuance, to state in writing or at the of Proceeding for a review of an adverse Judge. proceeding, what he or she expects to credible fear determination. This record (g) Custody. An Immigration Judge prove by such witnesses or shall not be merged with any later shall have no authority to review an documentary evidence, and to show proceeding pursuant to section 240 of alien’s custody status in the course of a affirmatively that he or she has made the Act involving the same alien. review of an adverse credible fear diligent effort, without success, to (c) Procedures and evidence. The determination made by the Service. produce the same. Immigration Judge may receive into 10336 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

PART 103ÐPOWERS AND DUTIES OF obligor. A district director is authorized behalf of an alien by a United States SERVICE OFFICERS; AVAILABILITY to approve a bond, a formal agreement citizen or a lawful permanent resident OF SERVICE RECORDS to extension of liability of surety, a spouse shall not be approved if the request for delivery of collateral security marriage creating the relationship 30. The authority citation for part 103 to a duly appointed and undischarged occurred on or after November 10, 1986, continues to read as follows: administrator or executor of the estate of and while the alien was in exclusion, Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. a deceased depositor, and a power of deportation, or removal proceedings, or 1101, 1103, 1201, 1252 note, 1252b, 1304, attorney executed on Form I–312, judicial proceedings relating thereto. 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR Designation of Attorney in Fact. All Determination of commencement and 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 other matters relating to bonds, termination of proceedings and CFR part 2. including a power of attorney not exemptions shall be in accordance with 31. In § 103.1, paragraph (g)(3)(ii) is executed on Form I–312 and a request § 245.1(c)(9) of this chapter, except that revised to read as follows: for delivery of collateral security to the burden in visa petition proceedings other than the depositor or his or her to establish eligibility for the exemption § 103.1 Delegations of authority. approved attorney in fact, shall be in § 245.1(c)(9)(iii)(F) of this chapter * * * * * forwarded to the regional director for shall rest with the petitioner. (g) * * * approval. * * * * * (3) * * * (2) Bond riders.—(i) General. Bond (ii) Asylum officers. Asylum officers riders shall be prepared on Form I–351, PART 207ÐADMISSION OF constitute a professional corps of Bond Riders, and attached to Form I– REFUGEES officers who serve under the 352. If a condition to be included in a supervision and direction of the 38. The authority citation for part 207 bond is not on Form I–351, a rider is revised to read as follows: Director of International Affairs and containing the condition shall be shall be specially trained as required in executed. Authority: 8 U.S.C. 1101, 1103, 1151, 1157, § 208.1(b) of this chapter. Asylum 1159, 1182; 8 CFR part 2. * * * * * officers are delegated the authority to 35. Section 103.7(b)(1) is amended by: 39. Section 207.1 is amended by hear and adjudicate credible fear of a. Removing the entry to ‘‘Form I– removing paragraph (e), and by revising persecution determinations under 444’’, and by paragraph (a) to read as follows: section 235(b)(1)(B) of the Act and b. Adding the entry for ‘‘Form EOIR– applications for asylum and for § 207.1 Eligibility. 42’’ to the listing of forms, in proper (a) Filing jurisdiction. Any alien who withholding of removal, as provided numerical sequence, to read as follows: under 8 CFR part 208. believes he or she is a refugee as defined * * * * * § 103.7 Fees in section 101(a)(42) of the Act, and is * * * * * included in a refugee group identified in § 103.5 [Amended] (b) * * * section 207(a) of the Act, may apply for 32. Section 103.5 is amended by: (1) * * * admission to the United States by filing a. Removing paragraph (a)(1)(iii)(B); an application in accordance with * * * * * § 207.2 with the Service office having b. Redesignating paragraphs Form EOIR–42. For filing application for (a)(1)(iii)(C) through (F) as paragraphs cancellation of removal under section 240A jurisdiction over the area where the (a)(1)(iii)(B) through (E), respectively; of the Act—$100.00. (A single fee of $100.00 applicant is located. In those areas too and will be charged whenever cancellation of distant from a Service office, the c. Removing paragraph (a)(5)(iii). removal applications are filed by two or more application may be filed at a designated 33. In § 103.5a, paragraph (c)(1) is aliens in the same proceedings). United States consular office. revised to read as follows: * * * * * * * * * * 40. Section 207.3 is revised to read as § 103.5a Service of notification, decisions, PART 204ÐIMMIGRANT PETITIONS follows: and other papers by the Service. * * * * * 36. The authority citation for part 204 § 207.3 Waivers of inadmissibility. (c) * * * continues to read as follows: (a) Authority. Section 207(c)(3) of the (1) Generally. In any proceeding Authority: 8 U.S.C. 1101, 1103, 1151, 1153, Act sets forth grounds of inadmissibility which is initiated by the Service, with 1154, 1182, 1186a, 1255; 8 CFR part 2. under section 212(a) of the Act which proposed adverse effect, service of the 37. Section 204.2 is amended by: are not applicable and those which may initiating notice and of notice of any a. Revising paragraph (a)(1)(iii) be waived in the case of an otherwise decision by a Service officer shall be introductory text; qualified refugee and the conditions accomplished by personal service, b. Removing paragraphs (a)(1)(iii)(A) under which such waivers may be except as provided in section 239 of the through (C); and approved. Officers in charge of overseas Act. c. Redesignating paragraphs offices are delegated authority to initiate * * * * * (a)(1)(iii)(D) through (I) as paragraphs the necessary investigations to establish 34. In § 103.6, paragraph (a) is revised (a)(1)(iii)(A) through (F) respectively, to the facts in each waiver application to read as follows: read as follows: pending before them and to approve or deny such waivers. § 103.6 Surety bonds. § 204.2 Petitions for relatives, widows, and (b) Filing requirements. The applicant (a) Posting of surety bonds.—(1) widowers, and abused spouses and for a waiver must submit Form I–602, Extension agreements; consent of surety; children. Application by Refugee for Waiver of collateral security. All surety bonds (a) * * * Grounds of Inadmissibility, with the posted in immigration cases shall be (1) * * * Service office processing his or her case. executed on Form I–352, Immigration (iii) Marriage during proceedings— The burden is on the applicant to show Bond, a copy of which, and any rider general prohibition against approval of that the waiver should be granted based attached thereto, shall be furnished the visa petition. A visa petition filed on upon humanitarian grounds, family Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10337 unity, or the public interest. The withholding of removal under section provided in § 208.16(a), an asylum applicant shall be notified in writing of 241(b)(3) of the Act, whether before an officer shall not decide whether an alien the decision, including the reasons for asylum officer or an immigration judge, is entitled to withholding of removal denial, if the application is denied. regardless of the date of filing. For under section 241(b)(3) of the Act. There is no appeal from such decision. purposes of this chapter, withholding of (b) Immigration Court—(1) Certain removal shall also mean withholding of aliens not entitled to proceedings under § 207.8 [Amended] deportation under section 243(h) of the section 240 of the Act. After Form I–863, 41. Section 207.8 is amended in the Act, as it appeared prior to April 1, Notice of Referral to Immigration Judge, last sentence by revising the reference to 1997, except as provided in § 208.16(c). has been filed with the Immigration ‘‘sections 235, 236, and 237’’ to read Such applications are hereinafter Court, an immigration judge shall have ‘‘sections 235, 240, and 241’’. referred to generically as asylum exclusive jurisdiction over any asylum 42. Part 208 is revised to read as applications. The provisions of this part application filed on or after April 1, follows: shall not affect the finality or validity of 1997, by: any decision made by a district director, (i) An alien crewmember who: PART 208ÐPROCEDURES FOR an immigration judge, or the Board of (A) Is an applicant for a landing ASYLUM AND WITHHOLDING OF Immigration Appeals in any such case permit; REMOVAL prior to April 1, 1997. No asylum (B) Has been refused permission to Subpart AÐAsylum and Withholding of application that was filed with a district land under section 252 of the Act; or Removal director, asylum officer or immigration (C) On or after April 1, 1997, was granted permission to land under Sec. judge prior to April 1, 1997, may be 208.1 General. reopened or otherwise reconsidered section 252 of the Act, regardless of 208.2 Jurisdiction. under the provisions of this part except whether the alien has remained in the 208.3 Form of application. by motion granted in the exercise of United States longer than authorized; 208.4 Filing the application. discretion by the Board of Immigration (ii) An alien stowaway who has been 208.5 Special duties toward aliens in Appeals, an immigration judge, or an found to have a credible fear of custody of the Service. asylum officer for proper cause shown. persecution pursuant to the procedure 208.6 Disclosure to third parties. Motions to reopen or reconsider must set forth in subpart B of this part; 208.7 Employment authorization. meet the requirements of sections (iii) An alien who is an applicant for 208.8 Limitations on travel outside the admission pursuant to the Visa Waiver United States. 240(c)(5) and (c)(6) of the Act, and 8 208.9 Procedure for interview before an CFR parts 3 and 103, where applicable. Pilot Program under section 217 of the asylum officer. (b) Training of asylum officers. The Act; 208.10 Failure to appear at an interview Director of International Affairs shall (iv) An alien who was admitted to the before an asylum officer. ensure that asylum officers receive United States pursuant to the Visa 208.11 Comments from the Department of special training in international human Waiver Pilot Program under section 217 State. rights law, nonadversarial interview of the Act and has remained longer than 208.12 Reliance on information compiled techniques, and other relevant national authorized or has otherwise violated his by other sources. and international refugee laws and or her immigration status; 208.13 Establishing asylum eligibility. principles. The Director of International (v) An alien who has been ordered 208.14 Approval, denial, or referral of removed under section 235(c) of the application. Affairs shall also, in cooperation with 208.15 Definition of ‘‘firm resettlement.’’ the Department of State and other Act; or 208.16 Withholding of removal. appropriate sources, compile and (vi) An alien who is an applicant for 208.17 Decisions. disseminate to asylum officers admission, or has been admitted, as an 208.18 Determining if an asylum information concerning the persecution alien classified under section application is frivolous. of persons in other countries on account 101(a)(15)(S) of the Act. 208.19 Admission of the asylee’s spouse of race, religion, nationality, (2) Rules of procedure. (i) General. and children. membership in a particular social group, Proceedings falling under the 208.20 Effect on exclusion, deportation, and or political opinion, as well as other jurisdiction of the immigration judge removal proceedings. pursuant to paragraph (b)(1) of this 208.21 Restoration of status. information relevant to asylum 208.22 Termination of asylum or determinations, and shall maintain a section shall be conducted in withholding of removal or deportation. documentation center with information accordance with the same rules of 208.23—29 [Reserved] on human rights conditions. procedure as proceedings conducted under 8 CFR part 240, except the scope Subpart BÐCredible Fear of Persecution § 208.2 Jurisdiction. of review shall be limited to a 208.30 Credible fear determinations (a) Office of International Affairs. determination of whether the alien is involving stowaways and applicants for Except as provided in paragraph (b) of eligible for asylum or withholding of admission found inadmissible pursuant this section, the Office of International removal and whether asylum shall be to section 212(a)(6)(C) or 212(a)(7) of the Affairs shall have initial jurisdiction Act. granted in the exercise of discretion. over an asylum application filed by, or During such proceedings all parties are Authority: 8 U.S.C. 1103, 1158, 1226, 1252, a credible fear determination pertaining 1282; 8 CFR part 2. prohibited from raising or considering to, an alien physically present in the any other issues, including but not Subpart AÐAsylum and Withholding United States or seeking admission at a limited to issues of admissibility, or Removal port-of-entry. An application that is removability, eligibility for waivers, and complete within the meaning of eligibility for any form of relief other § 208.1 General. § 208.3(c)(3) shall be either adjudicated than asylum or withholding of removal. (a) Applicability. Unless otherwise or referred by asylum officers under this (ii) Notice of hearing procedures and provided in this chapter, this subpart part in accordance with § 208.14. An in-absentia decisions. The alien will be shall apply to all applications for application that is incomplete within provided with notice of the time and asylum under section 208 of the Act or the meaning of § 208.3(c)(3) shall be place of the proceeding. The request for for withholding of deportation or returned to the applicant. Except as asylum and withholding of removal 10338 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations submitted by an alien who fails to (b) An asylum application shall be United States Code and to civil appear for the hearing shall be denied. deemed to constitute at the same time penalties under section 274C of the Act; The denial of asylum and withholding an application for withholding of and of removal for failure to appear may be removal, unless adjudicated in (5) Knowingly filing a frivolous reopened only upon a motion filed with deportation or exclusion proceedings application on or after April 1, 1997, so the immigration judge with jurisdiction commenced prior to April 1, 1997. In long as the applicant has received the over the case. Only one motion to such instances, the asylum application notice required by section 208(d)(4) of reopen may be filed, and it must be filed shall be deemed to constitute an the Act, shall render the applicant within 90 days, unless the alien application for withholding of permanently ineligible for any benefits establishes that he or she did not receive deportation under section 243(h) of the under the Act pursuant to § 208.18. notice of the hearing date or was in Act, as that section existed prior to Federal or State custody on the date April 1, 1997. Where a determination is § 208.4 Filing the application. directed to appear. The motion must made that an applicant is ineligible to Except as prohibited in paragraph (a) include documentary evidence which apply for asylum under section 208(a)(2) of this section, asylum applications demonstrates that: of the Act, an asylum application shall shall be filed in accordance with (A) The alien did not receive the be construed as an application for paragraph (b) of this section. notice; withholding of removal. (a) Prohibitions on filing. Section (B) The alien was in Federal or State (c) Form I–589 shall be filed under the 208(a)(2) of the Act prohibits certain custody and the failure to appear was following conditions and shall have the aliens from filing for asylum on or after through no fault of the alien; or following consequences: April 1, 1997, unless the alien can (C) ‘‘Exceptional circumstances,’’ as (1) If the application was filed on or demonstrate to the satisfaction of the defined in section 240(e)(1) of the Act, after January 4, 1995, information Attorney General that one of the caused the failure to appear. provided in the application may be used exceptions in section 208(a)(2)(D) of the (iii) Relief. The filing of a motion to as a basis for the initiation of removal Act applies. Such prohibition applies reopen shall not stay removal of the proceedings, or to satisfy any burden of only to asylum applications under alien unless the immigration judge proof in exclusion, deportation, or section 208 of the Act and not to grants a written request for a stay removal proceedings; applications for withholding of removal pending disposition of the motion. An (2) The applicant and anyone other under section 241 of the Act. If an alien who fails to appear for a than a spouse, parent, son, or daughter applicant submits an asylum proceeding under this section shall not of the applicant who assists the application and it appears that one or be eligible for relief under section 208, applicant in preparing the application more of the prohibitions contained in 212(h), 212(i), 240A, 240B, 245, 248, or must sign the application under penalty section 208(a)(2) of the Act apply, an 249 for a period of 10 years after the of perjury. The applicant’s signature asylum officer or an immigration judge date of the denial. establishes a presumption that the shall review the application to (3) Other aliens. Immigration judges applicant is aware of the contents of the determine if the application should be shall have exclusive jurisdiction over application. A person other than a rejected or denied. For the purpose of asylum applications filed by an alien relative specified in this paragraph who making determinations under section who has been served Form I–221, Order assists the applicant in preparing the 208(a)(2) of the Act, the following rules to Show Cause; Form I–122, Notice to application also must provide his or her shall apply: Applicant for Admission Detained for a full mailing address; (1) Authority. Only an asylum officer, Hearing before an Immigration Judge; or (3) An asylum application that does an immigration judge, or the Board of Form I–862, Notice to Appear, after a not include a response to each of the Immigration Appeals is authorized to copy of the charging document has been questions contained in the Form I–589, make determinations regarding the filed with the Immigration Court. is unsigned, or is unaccompanied by the prohibitions contained in section Immigration judges shall also have required materials specified in 208(a)(2)(B) or (C) of the Act; jurisdiction over any asylum paragraph (a) of this section is (2) One-year filing deadline. (i) For applications filed prior to April 1, 1997, incomplete. The filing of an incomplete purposes of section 208(a)(2)(B) of the by alien crewmembers who have application shall not commence the Act, an applicant has the burden of remained in the United States longer 150-day period after which the proving than authorized, by applicants for applicant may file an application for (A) By clear and convincing evidence admission under the Visa Waiver Pilot employment authorization in that he or she applied within one year Program, and by aliens who have been accordance with § 208.7. An application of the alien’s arrival in the United States admitted to the United States under the that is incomplete shall be returned by or Visa Waiver Pilot Program. mail to the applicant within 30 days of (B) To the satisfaction of the asylum the receipt of the application by the officer, immigration judge, or Board of § 208.3 Form of application. Service. If the Service has not mailed Immigration Appeals that he or she (a) An asylum applicant must file the incomplete application back to the qualifies for an exception to the one- Form I–589, Application for Asylum or applicant within 30 days, it shall be year deadline. Withholding of Removal, together with deemed complete. An application (ii) The one-year period shall be any additional supporting evidence in returned to the applicant as incomplete calculated from the date of the alien’s accordance with the instructions on the shall be resubmitted by the applicant last arrival in the United States or April form. The applicant’s spouse and with the additional information if he or 1, 1997, whichever is later. In the case children shall be listed on the she wishes to have the application of an application that appears to have application and may be included in the considered; been filed more than a year after the request for asylum if they are in the (4) Knowing placement of false applicant arrived in the United States, United States. One additional copy of information on the application may an asylum officer or immigration judge the principal applicant’s Form I–589 subject the person placing that will determine whether the applicant must be submitted for each dependent information on the application to qualifies under one of the exceptions to included in the principal’s application. criminal penalties under title 18 of the the deadline; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10339

(3) Prior denial of application. For with respect to any violation of of Immigration Appeals under 8 CFR purposes of section 208(a)(2)(C) of the counsel’s ethical or legal part 3. Any such motion must Act, an asylum application has not been responsibilities, and if not, why not; reasonably explain the failure to request denied unless denied by an immigration (iv) The applicant maintained asylum prior to the completion of the judge or the Board of Immigration Temporary Protected Status until a proceedings. Appeals; reasonable period before the filing of the (5) With the district director. In the (4) Changed circumstances. (i) The asylum application; and case of any alien described in term ‘‘changed circumstances’’ in (v) The applicant submitted an § 208.2(b)(1) and prior to the service on section 208(a)(2)(D) of the Act shall refer asylum application prior to the the alien of Form I–863, any asylum to circumstances materially affecting the expiration of the 1-year deadline, but application shall be submitted to the applicant’s eligibility for asylum. They that application was rejected by the district director having jurisdiction may include: Service as not properly filed, was pursuant to 8 CFR part 103. The district (A) Changes in conditions in the returned to the applicant for corrections, director shall forward such asylum applicant’s country of nationality or, if and was refiled within a reasonable application to the appropriate the person is stateless, country of last period thereafter. Immigration Court with the Form I–863 habitual residence or (b) Filing location—(1) With the being filed with that Immigration Court. (B) Changes in objective service center by mail. Except as (c) Amending an application after circumstances relating to the applicant provided in paragraphs (b)(2), (b)(3), filing. Upon request of the alien and as in the United States, including changes (b)(4) and (b)(5) of this section, asylum a matter of discretion, the asylum officer in applicable U.S. law, that create a applications shall be filed directly by or immigration judge having jurisdiction reasonable possibility that applicant mail with the service center servicing may permit an asylum applicant to may qualify for asylum. the asylum office with jurisdiction over amend or supplement the application, (ii) The applicant shall apply for the place of the applicant’s residence or, but any delay caused by such request asylum within a reasonable period given in the case of an alien without a United shall extend the period within which those ‘‘changed circumstances.’’ States residence, the applicant’s current the applicant may not apply for (5) The term extraordinary lodging or the land border port-of-entry employment authorization in circumstances in section 208(a)(2)(D) of through which the alien seeks accordance with § 208.7(a). the Act shall refer to events or factors admission to the United States. beyond the alien’s control that caused (2) With the asylum office. Asylum § 208.5 Special duties toward aliens in custody of the Service. the failure to meet the 1-year deadline. applications shall be filed directly with Such circumstances shall excuse the the asylum office having jurisdiction (a) General. When an alien in the failure to file within the 1-year period over the matter in the case of an alien custody of the Service requests asylum so long as the alien filed the application who has received the express consent of or withholding of removal or expresses within a reasonable period given those the Director of Asylum to do so. a fear of persecution or harm upon circumstances. The burden of proof is (3) With the immigration judge. return to his or her country of origin or on the applicant to establish to the Asylum applications shall be filed to agents thereof, the Service shall make satisfaction of the asylum officer or directly with the Immigration Court available the appropriate application immigration judge that the having jurisdiction over the case in the forms and shall provide the applicant circumstances were both beyond his or following circumstances: with the information required by section her control and that, but for those (i) During exclusion, deportation, or 208(d)(4) of the Act, except in the case circumstances, he or she would have removal proceedings, with the of an alien who is in custody pending filed within the 1-year period. These Immigration Court having jurisdiction a credible fear of persecution circumstances may include: over the port, district office, or sector determination under section (i) Serious illness or mental or after service and filing of the 235(b)(1)(B) of the Act. Where possible, physical disability of significant appropriate charging document. expedited consideration shall be given duration, including any effects of (ii) After completion of exclusion, to applications of detained aliens. persecution or violent harm suffered in deportation, or removal proceedings, Except as provided in paragraph (c) of the past, during the 1-year period after and in conjunction with a motion to this section, such alien shall not be arrival; reopen pursuant to 8 CFR part 3 where excluded, deported, or removed before a (ii) Legal disability (e.g., the applicant applicable, with the Immigration Court decision is rendered on his or her was an unaccompanied minor or having jurisdiction over the prior asylum application. suffered from a mental impairment) proceeding. Any such motion must (b) Certain aliens aboard vessels. (1) during the first year after arrival; reasonably explain the failure to request If an alien crewmember or alien (iii) Ineffective assistance of counsel, asylum prior to the completion of the stowaway on board a vessel or other provided that: proceedings. conveyance alleges, claims, or otherwise (A) The alien files an affidavit setting (iii) In asylum proceedings pursuant makes known to an immigration forth in detail the agreement that was to § 208.2(b)(1) and after the Notice of inspector or other official making an entered into with counsel with respect Referral to Immigration Judge has been examination on the conveyance that he to the actions to be taken and what served on the alien and filed with the or she is unable or unwilling to return representations counsel did or did not Immigration Court having jurisdiction to his or her country of nationality or make to the respondent in this regard; over the case. last habitual residence (if not a national (B) The counsel whose integrity or (4) With the Board of Immigration of any country) because of persecution competence is being impugned has been Appeals. In conjunction with a motion or a fear of persecution in that country informed of the allegations leveled to remand or reopen pursuant to §§ 3.2 on account of race, religion, nationality, against him or her and given an and 3.8 of this chapter where membership in a particular social group, opportunity to respond; and applicable, an initial asylum application or political opinion, the alien shall be (C) The alien indicates whether a shall be filed with the Board of promptly removed from the conveyance. complaint has been filed with Immigration Appeals if jurisdiction over If the alien makes such fear known to an appropriate disciplinary authorities the proceedings is vested in the Board official while off such conveyance, the 10340 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations alien shall not be returned to the (i) The adjudication of asylum filing of the asylum application filed on conveyance but shall be retained in or applications; or after April 1, 1997. transferred to the custody of the Service. (ii) The defense of any legal action (2) The time periods within which the (i) An alien stowaway will be referred arising from the adjudication of or alien may not apply for employment to an asylum officer for a credible fear failure to adjudicate the asylum authorization and within which the determination under § 208.30. application; Service must respond to any such (ii) An alien crewmember shall be (iii) The defense of any legal action of application and within which the provided the appropriate application which the asylum application is a part; asylum application must be adjudicated forms and information required by or pursuant to section 208(d)(5)(A)(iii) of section 208(d)(4) of the Act and may (iv) Any United States Government the Act shall begin when the alien has then have 10 days within which to investigation concerning any criminal or filed a complete asylum application in submit an asylum application to the civil matter; or accordance with §§ 208.3 and 208.4. district director having jurisdiction over (2) Any Federal, state, or local court Any delay requested or caused by the the port of entry. The district director, in the United States considering any applicant shall not be counted as part of pursuant to § 208.4(b), shall serve Form legal action: these time periods. Such time periods I–863 on the alien and immediately (i) Arising from the adjudication of or also shall be extended by the equivalent forward any such application to the failure to adjudicate the asylum of the time between issuance of a appropriate Immigration Court with a application; or request for evidence under § 103.2(b)(8) copy of the Form I–863 being filed with (ii) Arising from the proceedings of of this chapter and the receipt of the that court. which the asylum application is a part. applicant’s response to such request. (2) Pending adjudication of the § 208.7 Employment authorization. (3) The provisions of paragraphs (a)(1) application, and, in the case of a and (a)(2) of this section apply to (a) Application and approval. (1) applications for asylum filed on or after stowaway the credible fear Subject to the restrictions contained in determination and any review thereof, January 4, 1995. sections 208(d) and 236(a) of the Act, an (4) Employment authorization the alien may be detained by the Service applicant for asylum who is not an or otherwise paroled in accordance with pursuant to § 274a.12(c)(8) of this aggravated felon shall be eligible chapter may not be granted to an alien § 212.5 of this chapter. However, pursuant to §§ 274a.12(c)(8) and pending the credible fear determination, who fails to appear for a scheduled 274a.13(a) of this chapter to submit a interview before an asylum officer or a parole of an alien stowaway may be Form I–765, Application for permitted only when the Attorney hearing before an immigration judge, Employment Authorization. Except in unless the applicant demonstrates that General determines, in the exercise of the case of an alien whose asylum discretion, that parole is required to the failure to appear was the result of application has been recommended for exceptional circumstances. meet a medical emergency or is approval, or in the case of an alien who necessary for a legitimate law (b) Renewal and termination. filed an asylum application prior to Employment authorization shall be enforcement objective. January 4, 1995, the application shall be (c) Exception to prohibition on renewable, in increments to be submitted no earlier than 150 days after removal. A motion to reopen or an order determined by the Commissioner, for the date on which a complete asylum to remand accompanied by an asylum the continuous period of time necessary application submitted in accordance application pursuant to § 208.4(b)(3)(iii) for the asylum officer or immigration with §§ 208.3 and 208.4 has been shall not stay execution of a final judge to decide the asylum application received. In the case of an applicant exclusion, deportation, or removal order and, if necessary, for completion of any whose asylum application has been unless such stay is specifically granted administrative or judicial review. recommended for approval, the by the Board of Immigration Appeals or (1) If the asylum application is denied applicant may apply for employment the immigration judge having by the asylum officer, the employment authorization when he or she receives jurisdiction over the motion. authorization shall terminate at the notice of the recommended approval. If expiration of the employment § 208.6 Disclosure to third parties. an asylum application has been authorization document or 60 days after (a) Information contained in or returned as incomplete in accordance the denial of asylum, whichever is pertaining to any asylum application with § 208.3(c)(3), the 150-day period longer. shall not be disclosed without the will commence upon receipt by the (2) If the application is denied by the written consent of the applicant, except Service of a complete asylum immigration judge, the Board of as permitted by this section or at the application. An applicant whose asylum Immigration Appeals, or a Federal court, discretion of the Attorney General. application has been denied by an the employment authorization (b) The confidentiality of other asylum officer or by an immigration terminates upon the expiration of the records kept by the Service that indicate judge within the 150-day period shall employment authorization document, that a specific alien has applied for not be eligible to apply for employment unless the applicant has filed an asylum shall also be protected from authorization. If an asylum application appropriate request for administrative or disclosure. The Service will coordinate is denied prior to a decision on the judicial review. with the Department of State to ensure application for employment (c) Supporting evidence for renewal of that the confidentiality of these records authorization, the application for employment authorization. In order for is maintained if they are transmitted to employment authorization shall be employment authorization to be Department of State offices in other denied. If the asylum application is not renewed under this section, the alien countries. so denied, the Service shall have 30 must provide the Service (in accordance (c) This section shall not apply to any days from the date of filing of the Form with the instructions on or attached to disclosure to: I–765 to grant or deny that application, the employment authorization (1) Any United States Government except that no employment application) with a Form I–765, the official or contractor having a need to authorization shall be issued to an required fee (unless waived in examine information in connection asylum applicant prior to the expiration accordance with § 103.7(c) of this with: of the 180-day period following the chapter), and (if applicable) proof that Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10341 he or she has continued to pursue his and useful information bearing on the applicant, any comments submitted by or her asylum application before an applicant’s eligibility for asylum. At the the Department of State or by the immigration judge or sought time of the interview, the applicant Service, and any other information administrative or judicial review. For must provide complete information specific to the applicant’s case and purposes of employment authorization, regarding his or her identity, including considered by the asylum officer shall pursuit of an asylum application is name, date and place of birth, and comprise the record. established by presenting to the Service nationality, and may be required to (g) An applicant unable to proceed one of the following, depending on the register this identity electronically or with the interview in English must stage of the alien’s immigration through any other means designated by provide, at no expense to the Service, a proceedings: the Attorney General. The applicant competent interpreter fluent in both (1) If the alien’s case is pending in may have counsel or a representative English and the applicant’s native proceedings before the immigration present, may present witnesses, and language or any other language in which judge, and the alien wishes to continue may submit affidavits of witnesses and the applicant is fluent. The interpreter to pursue his or her asylum application, other evidence. must be at least 18 years of age. Neither a copy of any asylum denial, referral (c) The asylum officer shall have the applicant’s attorney or notice, or charging document placing authority to administer oaths, verify the representative of record, a witness the alien in such proceedings; identity of the applicant (including testifying on the applicant’s behalf, nor (2) If the immigration judge has through the use of electronic means), a representative or employee of the denied asylum, a copy of the document verify the identity of any interpreter, applicant’s country of nationality, or if issued by the Board of Immigration present and receive evidence, and stateless, country of last habitual Appeals to show that a timely appeal question the applicant and any residence, may serve as the applicant’s has been filed from a denial of the witnesses. interpreter. Failure without good cause asylum application by the immigration (d) Upon completion of the interview, to comply with this paragraph may be judge; or the applicant or the applicant’s considered a failure to appear for the (3) If the Board of Immigration representative shall have an opportunity interview for purposes of § 208.10. Appeals has dismissed the alien’s to make a statement or comment on the appeal of a denial of asylum, or evidence presented. The asylum officer § 208.10 Failure to appear at an interview before an asylum officer. sustained an appeal by the Service of a may, in his or her discretion, limit the grant of asylum, a copy of the petition length of such statement or comment Failure to appear for a scheduled for judicial review or for habeas corpus and may require its submission in interview without prior authorization pursuant to section 242 of the Act, date writing. Upon completion of the may result in dismissal of the stamped by the appropriate court. interview, the applicant shall be application or waiver of the right to an (d) In order for employment informed that he or she must appear in interview. Failure to appear shall be authorization to be renewed before its person to receive and to acknowledge excused if the notice of the interview expiration, the application for renewal receipt of the decision of the asylum was not mailed to the applicant’s must be received by the Service 90 days officer and any other accompanying current address and such address had prior to expiration of the employment material at a time and place designated been provided to the Office of authorization. by the asylum officer, except as International Affairs by the applicant otherwise provided by the asylum prior to the date of mailing in § 208.8 Limitations on travel outside the officer. An applicant’s failure to appear accordance with section 265 of the Act United States. to receive and acknowledge receipt of and regulations promulgated (a) An applicant who leaves the the decision shall be treated as delay thereunder, unless the asylum officer United States without first obtaining caused by the applicant for purposes of determines that the applicant received advance parole under § 212.5(e) of this § 208.7(a)(3) and shall extend the period reasonable notice of the interview. chapter shall be presumed to have within which the applicant may not Failure to appear will be excused if the abandoned his or her application under apply for employment authorization by applicant demonstrates that such failure this section. the number of days until the applicant was the result of exceptional (b) An applicant who leaves the does appear to receive and acknowledge circumstances. United States pursuant to advance receipt of the decision or until the parole under § 212.5(e) of this chapter applicant appears before an immigration § 208.11 Comments from the Department and returns to the country of claimed judge in response to the issuance of a of State. persecution shall be presumed to have charging document under § 208.14(b). (a) The Service shall forward to the abandoned his or her application, (e) The asylum officer shall consider Department of State a copy of each unless the applicant is able to establish evidence submitted by the applicant completed application it receives. At its compelling reasons for such return. together with his or her asylum option, the Department of State may application, as well as any evidence provide detailed country conditions § 208.9 Procedure for interview before an submitted by the applicant before or at information relevant to eligibility for asylum officer. the interview. As a matter of discretion, asylum or withholding of removal. (a) The Service shall adjudicate the the asylum officer may grant the (b) At its option, the Department of claim of each asylum applicant whose applicant a brief extension of time State may also provide: application is complete within the following an interview during which the (1) An assessment of the accuracy of meaning of § 208.3(c)(3) and is within applicant may submit additional the applicant’s assertions about the jurisdiction of the Service. evidence. Any such extension shall conditions in his or her country of (b) The asylum officer shall conduct extend by an equivalent time the nationality or habitual residence and his the interview in a nonadversarial periods specified by § 208.7 for the or her particular situation; manner and, except at the request of the filing and adjudication of any (2) Information about whether persons applicant, separate and apart from the employment authorization application. who are similarly situated to the general public. The purpose of the (f) The asylum application, all applicant are persecuted in his or her interview shall be to elicit all relevant supporting information provided by the country of nationality or habitual 10342 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations residence and the frequency of such that he or she is unable or unwilling to or her fear of persecution upon return is persecution; or return to or avail himself or herself of reasonable. (3) Such other information as it deems the protection of that country owing to (c) Mandatory denials. (1) relevant. such persecution. Applications filed on or after April 1, (c) Asylum officers and immigration (i) If it is determined that the 1997. For applications filed on or after judges may request specific comments applicant has established past April 1, 1997, an applicant shall not from the Department of State regarding persecution, he or she shall be qualify for asylum if section 208(a)(2) or individual cases or types of claims presumed also to have a well-founded 208(b)(2) of the Act applies to the under consideration, or such other fear of persecution unless a applicant. If the applicant is found to be information as they deem appropriate. preponderance of the evidence ineligible for asylum under either (d) Any such comments received establishes that since the time the section 208(a)(2) or 208(b)(2) of the Act, pursuant to paragraphs (b) and (c) of persecution occurred conditions in the the applicant shall be considered for this section shall be made part of the applicant’s country of nationality or last eligibility for withholding of removal record. Unless the comments are habitual residence have changed to such under section 241(b)(3) of the Act. classified under the applicable an extent that the applicant no longer (2) Applications filed before April 1, Executive Order, the applicant shall be has a well-founded fear of being 1997. (i) An immigration judge or provided an opportunity to review and persecuted if he or she were to return. asylum officer shall not grant asylum to respond to such comments prior to the (ii) An application for asylum shall be any applicant who filed his or her issuance of any decision to deny the denied if the applicant establishes past application before April 1, 1997, if the application. persecution under this paragraph but it alien: is also determined that he or she does (A) Having been convicted by a final § 208.12 Reliance on information compiled not have a well-founded fear of future judgment of a particularly serious crime by other sources. persecution under paragraph (b)(2) of in the United States, constitutes a (a) In deciding an asylum application, this section, unless it is determined that danger to the community; or whether the alien has a credible fear the applicant has demonstrated (B) Has been firmly resettled within of persecution pursuant to section compelling reasons for being unwilling the meaning of § 208.15; 235(b)(1)(B) of the Act, the asylum to return to his or her country of (C) Can reasonably be regarded as a officer may rely on material provided by nationality or last habitual residence danger to the security of the United the Department of State, the Office of arising out of the severity of the past States; International Affairs, other Service persecution. If the applicant (D) Has been convicted of an offices, or other credible sources, such demonstrates such compelling reasons, aggravated felony, as defined in section as international organizations, private he or she may be granted asylum unless 101(a)(43) of the Act; or voluntary agencies, news organizations, such a grant is barred by paragraph (c) (E) Ordered, incited, assisted, or or academic institutions. of this section . otherwise participated in the (b) Nothing in this part shall be (2) Well-founded fear of persecution. persecution of any person on account of construed to entitle the applicant to An applicant shall be found to have a race, religion, nationality, membership conduct discovery directed toward the well-founded fear of persecution if he or in a particular social group, or political records, officers, agents, or employees of she can establish first, that he or she has opinion. the Service, the Department of Justice, a fear of persecution in his or her (ii) If the evidence indicates that one or the Department of State. country of nationality or last habitual of the above grounds apply to the residence on account of race, religion, § 208.13 Establishing asylum eligibility. applicant, he or she shall have the nationality, membership in a particular burden of proving by a preponderance (a) Burden of proof. The burden of social group, or political opinion; of the evidence that he or she did not proof is on the applicant for asylum to second, that there is a reasonable so act. establish that he or she is a refugee as possibility of suffering such persecution (d) Discretionary denial. An asylum defined in section 101(a)(42) of the Act. if he or she were to return to that application may be denied in the The testimony of the applicant, if country; and third, that he or she is discretion of the Attorney General if the credible, may be sufficient to sustain the unable or unwilling to return to or avail alien can be removed to a third country burden of proof without corroboration. himself or herself of the protection of which has offered resettlement and in The fact that the applicant previously that country because of such fear. In which the alien would not face harm or established a credible fear of evaluating whether the applicant has persecution. persecution for purposes of section sustained his or her burden of proving 235(b)(1)(B) of the Act does not relieve that he or she has a well-founded fear § 208.14 Approval, denial, or referral of the alien of the additional burden of of persecution, the asylum officer or application. establishing eligibility for asylum. immigration judge shall not require the (a) By an immigration judge. Unless (b) Persecution. The applicant may applicant to provide evidence that he or otherwise prohibited in § 208.13(c), an qualify as a refugee either because he or she would be singled out individually immigration judge may grant or deny she has suffered past persecution or for persecution if: asylum in the exercise of discretion to because he or she has a well-founded (i) The applicant establishes that there an applicant who qualifies as a refugee fear of future persecution. is a pattern or practice in his or her under section 101(a)(42) of the Act. (1) Past persecution. An applicant country of nationality or last habitual (b) By an asylum officer. Unless shall be found to be a refugee on the residence of persecution of a group of otherwise prohibited in § 208.13(c): basis of past persecution if he or she can persons similarly situated to the (1) An asylum officer may grant establish that he or she has suffered applicant on account of race, religion, asylum in the exercise of discretion to persecution in the past in his or her nationality, membership in a particular an applicant who qualifies as a refugee country of nationality or last habitual social group, or political opinion; and under section 101(a)(42) of the Act. residence on account of race, religion, (ii) The applicant establishes his or (2) If the alien appears to be nationality, membership in a particular her own inclusion in and identification deportable, excludable or removable social group, or political opinion, and with such group of persons such that his under section 240 of the Act, the asylum Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10343 officer shall either grant asylum or refer live, the type of housing made available country on account of race, religion, the application to an immigration judge to the refugee, whether permanent or nationality, membership in a particular for adjudication in deportation, temporary, the types and extent of social group, or political opinion, the exclusion, or removal proceedings. An employment available to the refugee, asylum officer or immigration judge asylum officer may refer such an and the extent to which the refugee shall not require the applicant to application after an interview received permission to hold property provide evidence that he or she would conducted in accordance with § 208.9 or and to enjoy other rights and privileges, be singled out individually for such if, in accordance with § 208.10, the such as travel documentation including persecution if: applicant is deemed to have waived his a right of entry or reentry, education, (i) The applicant establishes that there or her right to an interview. public relief, or naturalization, is a pattern or practice in the country of (3) If the applicant is maintaining ordinarily available to others resident in proposed removal of persecution of a valid nonimmigrant status at the time the country. group of persons similarly situated to the application is decided, the asylum the applicant on account of race, officer may grant or deny asylum, § 208.16 Withholding of removal. religion, nationality, membership in a except in the case of an applicant (a) Consideration of application for particular social group, or political described in § 208.2(b)(1). withholding of removal. An asylum opinion; and (c) Applicability of § 103.2(b) of this officer shall not decide whether the (ii) The applicant establishes his or chapter. No application for asylum or exclusion, deportation, or removal of an her own inclusion in and identification withholding of deportation shall be alien to a country where the alien’s life with such group of persons such that it subject to denial pursuant to § 103.2(b) or freedom would be threatened must be is more likely than not that his or her of this chapter. withheld, except in the case of an alien life or freedom would be threatened (d) Duration. If the alien’s asylum who is otherwise eligible for asylum but upon return. application is granted, the grant will be is precluded from being granted such (c) Approval or denial of application. effective for an indefinite period, subject status due solely to section 207(a)(5) of (1) General. Subject to paragraphs (c)(2) to termination as provided in § 208.22. the Act. In exclusion, deportation, or and (c)(3) of this section, an application (e) Effect of denial of principal’s removal proceedings, an immigration for withholding of deportation or application on separate applications by judge may adjudicate both an asylum removal to a country of proposed dependents. The denial of an asylum claim and a request for withholding of removal shall be granted if the application filed by a principal removal whether or not asylum is applicant’s eligibility for withholding is applicant for asylum shall also result in granted. established pursuant to paragraph (b) of the denial of asylum status to any (b) Eligibility for withholding of this section. dependents of that principal applicant removal; burden of proof. The burden of (2) Mandatory denials. Except as who are included in that same proof is on the applicant for provided in paragraph (c)(3) of this application. Such denial shall not withholding of removal to establish that section, an application for withholding preclude a grant of asylum for an his or her life or freedom would be of removal shall be denied if the otherwise eligible dependent who has threatened in the proposed country of applicant falls within section filed a separate asylum application, nor removal on account of race, religion, 241(b)(3)(B) of the Act or, for shall such denial result in an otherwise nationality, membership in a particular applications for withholding of eligible dependent becoming ineligible social group, or political opinion. The deportation adjudicated in proceedings to apply for asylum due to the testimony of the applicant, if credible, commenced prior to April 1, 1997, provisions of section 208(a)(2)(C) of the may be sufficient to sustain the burden within section 243(h)(2) of the Act as it Act. of proof without corroboration. The appeared prior to that date. For evidence shall be evaluated as follows: purposes of section 241(b)(3)(B)(ii) of § 208.15 Definition of ``firm resettlement.'' (1) The applicant’s life or freedom the Act, or section 243(h)(2)(B) of the An alien is considered to be firmly shall be found to be threatened if it is Act as it appeared prior to April 1, 1997, resettled if, prior to arrival in the United more likely than not that he or she an alien who has been convicted of a States, he or she entered into another would be persecuted on account of race, particularly serious crime shall be nation with, or while in that nation religion, nationality, membership in a considered to constitute a danger to the received, an offer of permanent resident particular social group, or political community. If the evidence indicates status, citizenship, or some other type of opinion. the applicability of one or more of the permanent resettlement unless he or she (2) If the applicant is determined to grounds for denial enumerated in the establishes: have suffered persecution in the past Act, the applicant shall have the burden (a) That his or her entry into that such that his or her life or freedom was of proving by a preponderance of the nation was a necessary consequence of threatened in the proposed country of evidence that such grounds do not his or her flight from persecution, that removal on account of race, religion, apply. he or she remained in that nation only nationality, membership in a particular (3) Exception to the prohibition on as long as was necessary to arrange social group, or political opinion, it withholding of deportation in certain onward travel, and that he or she did shall be presumed that his or her life or cases. Section 243(h)(3) of the Act, as not establish significant ties in that freedom would be threatened on return added by section 413 of Public Law nation; or to that country unless a preponderance 104–132, shall apply only to (b) That the conditions of his or her of the evidence establishes that applications adjudicated in proceedings residence in that nation were so conditions in the country have changed commenced before April 1, 1997, and in substantially and consciously restricted to such an extent that it is no longer which final action had not been taken by the authority of the country of refuge more likely than not that the applicant before April 24, 1996. The discretion that he or she was not in fact resettled. would be so persecuted there. permitted by that section to override In making his or her determination, the (3) In evaluating whether the section 243(h)(2) of the Act shall be Asylum Officer or Immigration Judge applicant has sustained the burden of exercised only in the case of an shall consider the conditions under proving that his or her life or freedom applicant convicted of an aggravated which other residents of the country would be threatened in a particular felony (or felonies) where he or she was 10344 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations sentenced to an aggregate term of application is frivolous if any of its Department of State, which will send an imprisonment of less than 5 years and material elements is deliberately authorization cable to the American the immigration judge determines on an fabricated. Such finding shall only be Embassy or Consulate having individual basis that the crime (or made if the immigration judge or the jurisdiction over the area in which the crimes) of which the applicant was Board is satisfied that the applicant, asylee’s spouse or child is located. convicted does not constitute a during the course of the proceedings, (e) Denial. If the spouse or child is particularly serious crime. Nevertheless, has had sufficient opportunity to found to be ineligible for the status it shall be presumed that an alien account for any discrepancies or accorded under section 208(c) of the convicted of an aggravated felony has implausible aspects of the claim. Act, a written notice stating the basis for been convicted of a particularly serious denial shall be forwarded to the crime. Except in the cases specified in § 208.19 Admission of the asylee's spouse principal alien. No appeal shall lie from and children. this paragraph, the grounds for denial of this decision. withholding of deportation in section (a) Eligibility. A spouse, as defined in (f) Burden of proof. To establish the 243(h)(2) of the Act as it appeared prior section 101(a)(35) of the Act, 8 U.S.C. claim of relationship of spouse or child to April 1, 1997, shall be deemed to 1101(a)(35), or child, as defined in as defined in section 101(b)(1) of the comply with the 1967 Protocol Relating section 101(b)(1)(A), (B), (C), (D), (E), or Act, evidence must be submitted with to the Status of Refugees. (F) of the Act, also may be granted the request as set forth in part 204 of (d) Reconsideration of discretionary asylum if accompanying or following to this chapter. Where possible this will denial of asylum. In the event that an join the principal alien who was granted consist of the documents specified in 8 applicant is denied asylum solely in the asylum, unless it is determined that: CFR 204.2(c) (2) and (3). The burden of exercise of discretion, and the applicant (1) The spouse or child ordered, proof is on the principal alien to is subsequently granted withholding of incited, assisted, or otherwise establish by a preponderance of the deportation or removal under this participated in the persecution of any evidence that any person on whose section, thereby effectively precluding persons on account of race, religion, behalf he or she is making a request admission of the applicant’s spouse or nationality, membership in a particular under this section is an eligible spouse minor children following to join him or social group, or political opinion; or child. her, the denial of asylum shall be (2) The spouse or child, having been (g) Duration. The spouse or child reconsidered. Factors to be considered convicted by a final judgment of a qualifying under section 208(c) of the will include the reasons for the denial particularly serious crime in the United Act shall be granted asylum for an and reasonable alternatives available to States, constitutes a danger to the indefinite period unless the principal’s the applicant such as reunification with community of the United States; status is revoked. (3) The spouse or child has been his or her spouse or minor children in convicted of an aggravated felony, as § 208.20 Effect on exclusion, deportation, a third country. and removal proceedings. defined in section 101(a)(43) of the Act; § 208.17 Decisions. or (a) An alien who has been granted asylum may not be deported or removed The decision of an asylum officer to (4) There are reasonable grounds for unless his or her asylum status is grant or to deny asylum or withholding regarding the spouse or child a danger to the security of the United States. terminated pursuant to § 208.22. An of removal, or to refer an asylum alien in exclusion, deportation, or application in accordance with (b) Relationship. The relationship of spouse and child as defined in section removal proceedings who is granted § 208.14(b), shall be communicated in withholding of removal or deportation writing to the applicant. Notices of 101(b)(1) of the Act must have existed at the time the principal alien’s asylum may not be deported or removed to the decisions to grant or deny asylum, or to country to which his or her deportation refer an application, by asylum officers application was approved, except for children born to or legally adopted by or removal is ordered withheld unless shall generally be served in person the withholding order is terminated unless, in the discretion of the asylum the principal alien and spouse after approval of the principal alien’s asylum pursuant to § 208.22. office director, routine service by mail is (b) When an alien’s asylum status or appropriate. A letter communicating application. (c) Spouse or child in the United withholding of removal or deportation denial of the application shall state the is terminated under this chapter, the basis for denial of the asylum States. When a spouse or child of an alien granted asylum is in the United Service shall initiate removal application. The letter also shall contain proceedings under section 235 or 240 of an assessment of the applicant’s States but was not included in the principal alien’s application, the the Act, as appropriate, if the alien is credibility, unless the denial is the not already in exclusion, deportation, or result of the applicant’s conviction of an principal alien may request asylum for the spouse or child by filing Form I–730 removal proceedings. Removal aggravated felony. Pursuant to proceedings may also be in conjunction § 208.9(d), an applicant must appear in with the District Director having jurisdiction over his only place of with a termination hearing scheduled person to receive and to acknowledge under § 208.22(e). receipt of the decision. residence, regardless of the status of that spouse or child in the United States. § 208.21 Restoration of status. § 208.18 Determining if an asylum (d) Spouse or child outside the United An alien who was maintaining his or application is frivolous. States. When a spouse or child of an her nonimmigrant status at the time of For applications filed on or after April alien granted asylum is outside the filing an asylum application and has 1, 1997, an applicant is subject to the United States, the principal alien may such application denied may continue provisions of section 208(d)(6) of the request asylum for the spouse or child in or be restored to that status, if it has Act only if a final order by an by filing form I–730 with the District not expired. immigration judge or the Board of Director, setting forth the full name, Immigration Appeals specifically finds relationship, date and place of birth, § 208.22 Termination of asylum or that the alien knowingly filed a and current location of each such withholding of removal or deportation. frivolous asylum application. For person. Upon approval of the request, (a) Termination of asylum by the purposes of this section, an asylum the District Director shall notify the Service. Except as provided in Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10345 paragraph (e) of this section, an asylum that asylum status or withholding of Office for Immigration Review has officer may terminate a grant of asylum deportation or removal and any exclusive jurisdiction to review such made under the jurisdiction of an employment authorization issued determinations. Except as otherwise asylum officer or a district director if pursuant thereto, are terminated. provided in this subpart, paragraphs (b) following an interview, the asylum (d) Termination of derivative status. through (e) of this section are the officer determines that: The termination of asylum status for a exclusive procedures applicable to (1) There is a showing of fraud in the person who was the principal applicant credible fear interviews, determinations, alien’s application such that he or she shall result in termination of the asylum and review under section 235(b)(1)(B) of was not eligible for asylum at the time status of a spouse or child whose status the Act. it was granted; was based on the asylum application of (b) Interview and procedure. The (2) As to applications filed on or after the principal. Such termination shall asylum officer, as defined in section April 1, 1997, one or more of the not preclude the spouse or child of such 235(b)(1)(E) of the Act, will conduct the conditions described in section alien from separately asserting an interview in a nonadversarial manner, 208(c)(2) of the Act exist; or asylum or withholding of deportation or separate and apart from the general (3) As to applications filed before removal claim. public. At the time of the interview, the April 1, 1997, the alien no longer has a (e) Termination of asylum or asylum officer shall verify that the alien well-founded fear of persecution upon withholding of deportation or removal has received Form M–444, Information return due to a change of country by the Executive Office for Immigration about Credible Fear Interview in conditions in the alien’s country of Review. An immigration judge or the Expedited Removal Cases. The officer nationality or habitual residence or the Board of Immigration Appeals may shall also determine that the alien has alien has committed any act that would reopen a case pursuant to § 3.2 or § 3.23 an understanding of the credible fear have been grounds for denial of asylum of this chapter for the purpose of determination process. The alien may be under § 208.13(c)(2). terminating a grant of asylum or (b) Termination of withholding of withholding of deportation or removal required to register his or her identity deportation or removal by the Service. made under the jurisdiction of an electronically or through any other Except as provided in paragraph (e) of immigration judge. In such a reopened means designated by the Attorney this section, an asylum officer may proceeding, the Service must establish, General. The alien may consult with a terminate a grant of withholding of by a preponderance of evidence, one or person or persons of the alien’s deportation or removal made under the more of the grounds set forth in choosing prior to the interview or any jurisdiction of an asylum officer or a paragraphs (a) or (b) of this section. In review thereof, and may present other district director if the asylum officer addition, an immigration judge may evidence, if available. Such consultation determines, following an interview, terminate a grant of asylum or shall be at no expense to the that: withholding of deportation or removal Government and shall not unreasonably (1) The alien is no longer entitled to made under the jurisdiction of the delay the process. Any person or withholding of deportation or removal Service at any time after the alien has persons with whom the alien chooses to due to a change of conditions in the been provided a notice of intent to consult may be present at the interview country to which removal was withheld; terminate by the Service. Any and may be permitted, in the discretion (2) There is a showing of fraud in the termination under this paragraph may of the asylum officer, to present a alien’s application such that the alien occur in conjunction with an exclusion, statement at the end of the interview. was not eligible for withholding of deportation or removal proceeding. The asylum officer, in his or her removal at the time it was granted; (f) Termination of asylum for arriving discretion, may place reasonable limits (3) The alien has committed any other aliens. If the Service determines that an on the number of such persons who may act that would have been grounds for applicant for admission who had be present at the interview and on the denial of withholding of removal under previously been granted asylum in the length of statement or statements made. section 241(b)(3)(B) of the Act had it United States falls within conditions set If the alien is unable to proceed occurred prior to the grant of forth in section 208(c)(2) of the Act and effectively in English, and if the asylum withholding of removal; or is inadmissible, the Service shall issue officer is unable to proceed competently (4) For applications filed in a notice of intent to terminate asylum in a language chosen by the alien, the proceedings commenced before April 1, and initiate removal proceedings under asylum officer shall arrange for the 1997, the alien has committed any act section 240 of the Act. The alien shall assistance of an interpreter in that would have been grounds for denial present his or her response to the intent conducting the interview. The of withholding of deportation under to terminate during proceedings before interpreter may not be a representative section 243(h)(2) of the Act. the immigration judge. or employee of the applicant’s country (c) Procedure. Prior to the termination of nationality or, if the applicant is of a grant of asylum or withholding of §§ 208.23Ð208.29 [Reserved] stateless, the applicant’s country of last deportation or removal, the alien shall habitual residence. The asylum officer be given notice of intent to terminate, Subpart BÐCredible Fear of shall create a summary of the material with the reasons therefor, at least 30 Persecution facts as stated by the applicant. At the days prior to the interview specified in § 208.30 Credible fear determinations conclusion of the interview, the officer paragraph (a) of this section before an involving stowaways and applicants for shall review the summary with the alien asylum officer. The alien shall be admission found inadmissible pursuant to and provide the alien with an provided the opportunity to present section 212(a)(6)(C) or 212(a)(7) of the Act. opportunity to correct errors therein. evidence showing that he or she is still (a) Jurisdiction. The provisions of this The asylum officer shall create a written eligible for asylum or withholding of subpart apply to aliens subject to record of his or her determination, deportation or removal. If the asylum sections 235(a)(2) and 235(b)(1) of the including a summary of the material officer determines that the alien is no Act. Pursuant to section 235(b)(1)(B) of facts as stated by the applicant, any longer eligible for asylum or the Act, the Service has exclusive additional facts relied on by the officer, withholding of deportation or removal, jurisdiction to make credible fear and the officer’s determination of the alien shall be given written notice determinations, and the Executive whether, in light of such facts, the alien 10346 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations has established a credible fear of (1) If the immigration judge concurs PART 211ÐDOCUMENTARY persecution. The decision shall not with the determination of the asylum REQUIREMENTS: IMMIGRANTS; become final until reviewed by a officer that the alien does not have a WAIVERS supervisory asylum officer. credible fear of persecution, the case (c) Authority. Asylum officers shall be returned to the Service for 46. Part 211 is revised to read as conducting credible fear interviews removal of the alien. follows: shall have the authorities described in (2) If the immigration judge finds that Sec. § 208.9(c). 211.1 Visas. the alien, other than an alien stowaway, (d) Referral for an asylum hearing. If 211.2 Passports. possesses a credible fear of persecution, an alien, other than an alien stowaway, 211.3 Expiration of immigrant visas, reentry is found to have a credible fear of the immigration judge shall vacate the permits, refugee travel documents, and persecution, the asylum officer will so order of the asylum officer issued on Forms I–551. inform the alien and issue a Form I–862, Form I–860 and the Service may 211.4 Waiver of documents for returning commence removal proceedings under residents. Notice to Appear, for full consideration 211.5 Alien commuters. of the asylum claim in proceedings section 240 of the Act, during which time the alien may file an asylum Authority: 8 U.S.C. 1101, 1103, 1181, 1182, under section 240 of the Act. Parole of 1203, 1225, 1257; 8 CFR part 2. the alien may only be considered in application in accordance with accordance with section 212(d)(5) of the § 208.4(b)(3)(i). § 211.1 Visas. Act and § 212.5 of this chapter. If an (3) If the immigration judge finds that (a) General. Except as provided in alien stowaway is found to have a an alien stowaway possesses a credible paragraph (b) of this section, each credible fear of persecution, the asylum fear of persecution, the alien shall be arriving alien applying for admission (or officer will so inform the alien and issue allowed to file an asylum application boarding the vessel or aircraft on which a Form I–863, Notice to Referral to before the immigration judge in he or she arrives) into the United States Immigration Judge, for full accordance with § 208.4(b)(3)(iii). The for lawful permanent residence, or as a consideration of the asylum claim in immigration judge shall decide the lawful permanent resident returning to proceedings under § 208.2(b)(1). asylum application as provided in that an unrelinquished lawful permanent (e) Removal of aliens with no credible section. Such decision may be appealed residence in the United States, shall fear of persecution. If an alien is found by either the stowaway or the Service to present one of the following: not to have a credible fear of the Board of Immigration Appeals. If (1) A valid, unexpired immigrant visa; persecution, the asylum officer shall and when a denial of the asylum (2) A valid, unexpired Form I–551, provide the alien with a written notice application becomes final, the alien Alien Registration Receipt Card, if of decision and inquire whether the shall be removed from the United States seeking readmission after a temporary alien wishes to have an immigration in accordance with section 235(a)(2) of absence of less than 1 year, or in the judge review the negative decision, the Act. If and when an approval of the case of a crewmember regularly serving using Form I–869, Record of Negative asylum application becomes final, the on board a vessel or aircraft of United Credible Fear Finding and Request for Service shall terminate removal States registry seeking readmission after Review by Immigration Judge, on which proceedings under section 235(a)(2) of any temporary absence connected with the alien shall indicate whether he or the Act. his or her duties as a crewman; she desires such review. If the alien is (3) A valid, unexpired Form I–327, not a stowaway, the officer shall also PART 209ÐADJUSTMENT OF STATUS Permit to Reenter the United States; order the alien removed and issue a OF REFUGEES AND ALIENS (4) A valid, unexpired Form I–571, Form I–860, Notice and Order of GRANTED ASYLUM Refugee Travel Document, properly Expedited Removal. If the alien is a endorsed to reflect admission as a stowaway and the alien does not request 43. The authority citation for part 209 lawful permanent resident; a review by an immigration judge, the is revised to read as follows: (5) An expired Form I–551, Alien asylum officer shall also refer the alien Authority: 8 U.S.C. 1101, 1103, 1157, 1158, Registration Receipt Card, accompanied to the district director for completion of 1159, 1228, 1252, 1282; 8 CFR part 2. by a filing receipt issued within the removal proceedings in accordance with previous 6 months for either a Form I– section 235(a)(2) of the Act. § 209.1 [Amended] 751, Petition to Remove the Conditions (f) Review by immigration judge. The 44. In § 209.1, paragraph (a)(1) is on Residence, or Form I–829, Petition asylum officer’s negative decision amended in the first sentence by by Entrepreneur to Remove Conditions, regarding credible fear shall be subject revising the reference to ‘‘, 236, and if seeking admission or readmission to review by an immigration judge upon 237’’ to read ‘‘and 240’’. after a temporary absence of less than 1 the applicant’s request, in accordance year; with section 235(b)(1)(B)(iii)(III) of the 45. In § 209.2, the last sentence of (6) A Form I–551, whether or not Act. If the alien requests such review, paragraph (c) is revised to read as expired, presented by a civilian or the asylum officer shall arrange for the follows: military employee of the United States detention of the alien and serve him or § 209.2 Adjustment of status of alien Government who was outside the her with a Form I–863, Notice of granted asylum. United States pursuant to official orders, Referral to Immigration Judge. The * * * * * or by the spouse or child of such record of determination, including employee who resided abroad while the copies of the Form I–863, the asylum (c) Application. * * * If an alien has employee or serviceperson was on officer’s notes, the summary of the been placed in deportation, exclusion, overseas duty and who is preceding, material facts, and other materials upon or removal proceedings under any accompanying or following to join which the determination was based section of this Act (as effective on the within 4 months the employee, shall be provided to the immigration date such proceedings commenced), the returning to the United States; or judge with the negative determination. application can be filed and considered (7) Form I–551, whether or not Upon review of the asylum officer’s only in those proceedings. expired, or a transportation letter issued negative credible fear determination: * * * * * by an American consular officer, Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10347 presented by an employee of the good cause for the alien’s failure to accompanying parent is found to be American University of Beirut, who was present an immigrant visa, Form I–551, admissible to the United States; so employed immediately preceding or reentry permit. Filing the Form I–90 (4) Is a stateless person or a person travel to the United States, returning will serve as both application for who because of his or her opposition to temporarily to the United States before replacement and as application for Communism is unwilling or unable to resuming employment with the waiver of passport and visa, without the obtain a passport from the country of his American University of Beirut, or obligation to file a separate waiver or her nationality, or is the resuming permanent residence in the application. accompanying spouse or unmarried son United States. (c) Immigrants having occupational or daughter of such immigrant; or (b) Waivers. (1) A waiver of the visa status defined in section 101(a)(15) (A), (5) Is a member of the Armed Forces required in paragraph (a) of this section (E), or (G) of the Act. An immigrant visa, of the United States. shall be granted without fee or reentry permit, or Form I–551 shall be (b) Except as provided in paragraph application by the district director, invalid when presented by an alien who (a) of this section, if an alien seeking upon presentation of the child’s birth has an occupational status under section admission as an immigrant with an certificate, to a child born subsequent to 101(a)(15) (A), (E), or (G) of the Act, immigrant visa believes that good cause the issuance of an immigrant visa to his unless he or she has previously exists for his or her failure to present a or her accompanying parent who submitted, or submits at the time he or passport, the alien may file an applies for admission during the she applies for admission to the United application for a waiver of this validity of such a visa; or a child born States, the written waiver required by requirement with the district director in during the temporary visit abroad of a section 247(b) of the Act and 8 CFR part charge of the port-of-entry. To apply for mother who is a lawful permanent 247. this waiver, the alien must file Form I– resident alien, or a national, of the (d) Returning temporary residents. (1) 193, Application for Waiver of Passport United States, provided that the child’s Form I–688, Temporary Resident Card, and/or Visa, with the fee prescribed in application for admission to the United may be presented in lieu of an § 103.7(b)(1) of this chapter. In the States is made within 2 years of birth, immigrant visa by an alien whose status exercise of discretion, the district the child is accompanied by the parent has been adjusted to that of a temporary director in charge of the port-of-entry who is applying for readmission as a resident under the provisions of § 210.1 may waive the alien’s lack of passport permanent resident upon the first return of this chapter, such status not having and admit the alien as an immigrant, if of the parent to the United States after changed, and who is returning to an the district director is satisfied that the the birth of the child, and the unrelinquished residence within one alien has established good cause for the accompanying parent is found to be year after a temporary absence abroad. alien’s failure to present a passport. admissible to the United States. (2) Form I–688 may be presented in (2) For an alien described in lieu of an immigrant visa by an alien § 211.3 Expiration of immigrant visas, paragraph (b)(1) of this section, whose status has been adjusted to that reentry permits, refugee travel documents, recordation of the child’s entry shall be of a temporary resident under the and Forms I±551. on Form I–181, Memorandum of provisions of § 245a.2 of this chapter, An immigrant visa, reentry permit, Creation of Record of Admission for such status not having changed, and refugee travel document, or Form I—551 Lawful Permanent Residence. The who is returning to an unrelinquished shall be regarded as unexpired if the carrier of such alien shall not be liable residence within 30 days after a rightful holder embarked or enplaned for a fine pursuant to section 273 of the temporary absence abroad, provided before the expiration of his or her Act. that the aggregate of all such absences immigrant visa, reentry permit, or (3) If an immigrant alien returning to abroad during the temporary residence refugee travel document, or with respect an unrelinquished lawful permanent period has not exceeded 90 days. to Form I—551, before the first residence in the United States after a anniversary of the date on which he or temporary absence abroad believes that § 211.2 Passports. she departed from the United States, good cause exists for his or her failure (a) A passport valid for the bearer’s provided that the vessel or aircraft on to present an immigrant visa, Form I– entry into a foreign country at least 60 which he or she so embarked or 551, or reentry permit, the alien may file days beyond the expiration date of his enplaned arrives in the United States or an application for a waiver of this or her immigrant visa shall be presented foreign contiguous territory on a requirement with the district director in by each immigrant except an immigrant continuous voyage. The continuity of charge of the port-of-entry. To apply for who: the voyage shall not be deemed to have this waiver, the alien must file Form I– (1) Is the parent, spouse, or unmarried been interrupted by scheduled or 193, Application for Waiver of Passport son or daughter of a United States emergency stops of the vessel or aircraft and/or Visa, with the fee prescribed in citizen or of an alien lawful permanent en route to the United States or foreign § 103.7(b)(1) of this chapter, except that resident of the United States; contiguous territory, or by a layover in if the alien’s Form I–551 was lost or (2) Is entering under the provisions of foreign contiguous territory necessitated stolen, the alien shall instead file Form § 211.1(a)(2) through (a)(7); solely for the purpose of effecting a I–90, Application to Replace Alien (3) Is a child born during the transportation connection to the United Registration Receipt Card, with the fee temporary visit abroad of a mother who States. prescribed in § 103.7(b)(1) of this is a lawful permanent resident alien, or chapter, provided the temporary a national, of the United States, § 211.4 Waiver of documents for returning absence did not exceed 1 year. In the provided that the child’s application for residents. exercise of discretion, the district admission to the United States is made (a) Pursuant to the authority director in charge of the port-of-entry within 2 years of birth, the child is contained in section 211(b) of the Act, may waive the alien’s lack of an accompanied by the parent who is an alien previously lawfully admitted to immigrant visa, Form I–551, or reentry applying for readmission as a the United States for permanent permit and admit the alien as a permanent resident upon the first return residence who, upon return from a returning resident, if the district director of the parent to the United States after temporary absence was inadmissible is satisfied that the alien has established the birth of the child, and the because of failure to have or to present 10348 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations a valid passport, immigrant visa, reentry cannot satisfy the residence juvenile has a relative who is in permit, border crossing card, or other requirements of the naturalization laws detention. document required at the time of entry, and cannot qualify for any benefits (ii) If a relative who is not in may be granted a waiver of such under the immigration laws on his or detention cannot be located to sponsor requirement in the discretion of the her own behalf or on behalf of his or her the minor, the minor may be released district director if the district director relatives other than as specified in with an accompanying relative who is determines that such alien: paragraph (a) of this section. When an in detention. (1) Was not otherwise inadmissible at alien commuter takes up residence in (iii) If the Service cannot locate a the time of entry, or having been the United States, he or she shall no relative in or out of detention to sponsor otherwise inadmissible at the time of longer be regarded as a commuter. He or the minor, but the minor has identified entry is with respect thereto qualified she may facilitate proof of having taken a non-relative in detention who for an exemption from deportability up such residence by notifying the accompanied him or her on arrival, the under section 237(a)(1)(H) of the Act; Service as soon as possible, preferably at question of releasing the minor and the and the time of his or her first reentry for accompanying non-relative adult shall (2) Is not otherwise subject to that purpose. Application for issuance be addressed on a case-by-case basis; removal. of a new alien registration receipt card (4) Aliens who will be witnesses in (b) Denial of a waiver by the district to show that he or she has taken up proceedings being, or to be, conducted director is not appealable but shall be residence in the United States shall be by judicial, administrative, or legislative without prejudice to renewal of an made on Form I–90. bodies in the United States; or application and reconsideration in (5) Aliens whose continued detention proceedings before the immigration PART 212ÐDOCUMENTARY is not in the public interest as judge. REQUIREMENTS: NONIMMIGRANTS; determined by the district director or WAIVERS; ADMISSION OF CERTAIN § 211.5 Alien commuters. chief patrol agent. INADMISSIBLE ALIENS; PAROLE (a) General. An alien lawfully (b) In the cases of all other arriving admitted for permanent residence or a 47. The authority citation for part 212 aliens, except those detained under special agricultural worker lawfully continues to read as follows: § 235.3(b) or (c) of this chapter and paragraph (a) of this section, the district admitted for temporary residence under Authority: 8 U.S.C. 1101, 1102, 1103, 1182, section 210 of the Act may commence 1184, 1187, 1225, 1226, 1227, 1228, 1252; 8 director or chief patrol agent may, after or continue to reside in foreign CFR part 2. review of the individual case, parole contiguous territory and commute as a into the United States temporarily in 48. Section 212.5 is amended by: special immigrant defined in section accordance with section 212(d)(5)(A) of a. Revising paragraph (a) and (b); the Act, any alien applicant for 101(a)(27)(A) of the Act to his or her b. Revising introductory text in place of employment in the United admission, under such terms and paragraph (c); conditions, including those set forth in States. An alien commuter engaged in c. Revising paragraph (c)(1); and by paragraph (c) of this section, as he or seasonal work will be presumed to have d. Revising paragraph (d)(2)(i), to read she may deem appropriate. An alien taken up residence in the United States as follows: if he or she is present in this country for who arrives at a port-of-entry and more than 6 months, in the aggregate, § 212.5 Parole of aliens into the United applies for parole into the United States during any continuous 12-month States. for the sole purpose of seeking period. An alien commuter’s address (a) The parole of aliens within the adjustment of status under section 245A report under section 265 of the Act must following groups who have been or are of the Act, without benefit of advance show his or her actual residence address detained in accordance with § 235.3(b) authorization as described in paragraph even though it is not in the United or (c) of this chapter would generally be (e) of this section shall be denied parole States. justified only on a case-by-case basis for and detained for removal in accordance (b) Loss of residence status. An alien ‘‘urgent humanitarian reasons’’ or with the provisions of § 235.3(b) or (c) commuter who has been out of regular ‘‘significant public benefit,’’ provided of this chapter. An alien seeking to enter employment in the United States for a the aliens present neither a security risk the United States for the sole purpose of continuous period of 6 months shall be nor a risk of absconding: applying for adjustment of status under deemed to have lost residence status, (1) Aliens who have serious medical section 210 of the Act shall be denied notwithstanding temporary entries in conditions in which continued parole and detained for removal under the interim for other than employment detention would not be appropriate; § 235.3(b) or (c) of this chapter, unless purposes. An exception applies when (2) Women who have been medically the alien has been recommended for employment in the United States was certified as pregnant; approval of such application for interrupted for reasons beyond the (3) Aliens who are defined as adjustment by a consular officer at an individual’s control other than lack of a juveniles in § 236.3(a) of this chapter. Overseas Processing Office. job opportunity or the commuter can The district director or chief patrol (c) Conditions. In any case where an demonstrate that he or she has worked agent shall follow the guidelines set alien is paroled under paragraph (a) or 90 days in the United States in the forth in § 236.3(a) of this chapter and (b) of this section, the district director aggregate during the 12-month period paragraphs (a)(3)(i) through (iii) of this or chief patrol agent may require preceding the application for admission section in determining under what reasonable assurances that the alien will into the United States. Upon loss of conditions a juvenile should be paroled appear at all hearings and/or depart the status, Form I–551 or I–688 shall from detention: United States when required to do so. become invalid and must be (i) Juveniles may be released to a Not all factors listed need be present for surrendered to an immigration officer. relative (brother, sister, aunt, uncle, or parole to be exercised. The district (c) Eligibility for benefits under the grandparent) not in Service detention director or chief patrol agent should immigration and nationality laws. Until who is willing to sponsor a minor and apply reasonable discretion. The he or she has taken up residence in the the minor may be released to that consideration of all relevant factors United States, an alien commuter relative notwithstanding that the includes: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10349

(1) The giving of an undertaking by PART 213ÐADMISSION OF ALIENS continue to be a lawful conditional the applicant, counsel, or a sponsor to ON GIVING BOND OR CASH DEPOSIT permanent resident with all the rights, ensure appearances or departure, and a privileges, and responsibilities provided bond may be required on Form I–352 in 50. The authority citation for part 213 to persons possessing such status. Prior such amount as the district director or is revised to read as follows: to issuing the notice of termination, the chief patrol agent may deem Authority: 8 U.S.C. 1103; 8 CFR part 2. director shall provide the alien with an appropriate; opportunity to review and rebut the § 213.1 [Amended] evidence upon which the decision is to * * * * * 51. Section 213.1 is amended in the be based, in accordance with (d) * * * last sentence by revising the term ‘‘part § 103.2(b)(2) of this chapter. The (2)(i) On notice. In cases not covered 103’’ to read ‘‘§ 103.6’’. termination of status, and all of the rights and privileges concomitant by paragraph (d)(1) of this section, upon PART 214ÐNONIMMIGRANT CLASSES accomplishment of the purpose for thereto (including authorization to which parole was authorized or when in 52. The authority citation for part 214 accept or continue in employment in the opinion of the district director or continues to read as follows: this country), shall take effect as of the date of such determination by the chief patrol agent in charge of the area Authority: 8 U.S.C. 1101, 1103, 1182, 1184, in which the alien is located, neither 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2. director, although the alien may request a review of such determination in humanitarian reasons nor public benefit 53. Section 214.1 is amended by warrants the continued presence of the removal proceedings. In addition to the revising paragraph (c)(4)(iv) to read as notice of termination, the director shall alien in the United States, parole shall follows: be terminated upon written notice to the issue a notice to appear in accordance alien and he or she shall be restored to § 214.1 Requirements for admission, with 8 CFR part 239. During the ensuing removal proceedings, the alien may the status that he or she had at the time extension, and maintenance of status. submit evidence to rebut the of parole. When a charging document is * * * * * determination of the director. The served on the alien, the charging (c) * * * burden of proof shall be on the Service document will constitute written notice (4) * * * (iv) The alien is not the subject of to establish, by a preponderance of the of termination of parole, unless evidence, that one or more of the otherwise specified. Any further deportation proceedings under section 242 of the Act (prior to April 1, 1997) conditions in section 216(b)(1) or inspection or hearing shall be 216A(b)(1) of the Act, whichever is conducted under section 235 or 240 of or removal proceedings under section 240 of the Act. applicable, are true, or that an alien the Act and this chapter, or any order entrepreneur who was admitted of exclusion, deportation, or removal * * * * * pursuant to section 203(b)(5) of the Act previously entered shall be executed. If PART 216ÐCONDITIONAL BASIS OF obtained his or her investment capital the exclusion, deportation, or removal LAWFUL PERMANENT RESIDENCE through other than legal means (such as order cannot be executed by removal STATUS through the sale of illegal drugs). within a reasonable time, the alien shall (b) Determination of fraud after two again be released on parole unless in the 54. The authority citation for part 216 years. If, subsequent to the removal of opinion of the district director or the continues to read as follows: the conditional basis of an alien’s chief patrol agent the public interest Authority: 8 U.S.C. 1101, 1103, 1154, 1184, permanent resident status, the director requires that the alien be continued in 1186a, 1186b, and 8 CFR part 2. determines that an alien spouse custody. 55. Section 216.3 is revised to read as obtained permanent resident status * * * * * follows: through a marriage which was entered into for the purpose of evading the 49. In § 212.6, paragraph (a)(2) is § 216.3 Termination of conditional resident immigration laws or an alien revised to read as follows: status. entrepreneur obtained permanent § 212.6 Nonresident alien border crossing (a) During the two-year conditional resident status through a commercial cards. period. The director shall send a formal enterprise which was improper under written notice to the conditional section 216A(b)(1) of the Act, the (a) * * * permanent resident of the termination of director may institute rescission (2) Mexican border crossing card, the alien’s conditional permanent proceedings pursuant to section 246 of Form I–186 or I–586. The rightful holder resident status if the director determines the Act (if otherwise appropriate) or of a nonresident alien Mexican border that any of the conditions set forth in removal proceedings under section 240 crossing card, Form I–186 or I–586, may section 216(b)(1) or 216A(b)(1) of the of the Act. be admitted under § 235.1(f) of this Act, whichever is applicable, are true, or 56. Section 216.4 is amended by: chapter if found otherwise admissible. it becomes known to the government a. Revising paragraphs (a)(6), and However, any alien seeking entry as a that an alien entrepreneur who was (b)(3); visitor for business or pleasure must admitted pursuant to section 203(b)(5) b. Revising paragraph, (c)(4); also present a valid passport and shall of the Act obtained his or her c. Removing the unnumbered be issued Form I–94 if the alien is investment capital through other than paragraph immediately after paragraph applying for admission from: legal means (such as through the sale of (c)(4); and by (i) A country other than Mexico or illegal drugs). If the Service issues a d. Revising paragraph (d)(2) to read as Canada, or notice of intent to terminate an alien’s follows: conditional resident status, the director (ii) Canada if the alien has been in a shall not adjudicate Form I–751 or Form § 216.4 Joint petition to remove country other than the United States or I–829 until it has been determined that conditional basis of lawful permanent Canada since leaving Mexico. the alien’s status will not be terminated. resident status for alien spouse. * * * * * During this time, the alien shall (a) * * * 10350 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

(6) Termination of status for failure to interview within the 90-day period I–751, Petition to Remove the file petition. Failure to properly file following the filing of the petition. Conditions on Residence, if the alien Form I–751 within the 90-day period (c) * * * requests a waiver, was not at fault in immediately preceding the second (4) A fee or other consideration was failing to meet the filing requirement, anniversary of the date on which the given (other than a fee or other and the conditional resident alien is alien obtained lawful permanent consideration to an attorney for able to establish that: residence on a conditional basis shall assistance in preparation of a lawful (i) Deportation or removal from the result in the automatic termination of petition) in connection with the filing of United States would result in extreme the alien’s permanent residence status the petition through which the alien hardship; and the initiation of proceedings to obtained conditional permanent (ii) The marriage upon which his or remove the alien from the United States. residence. If derogatory information is her status was based was entered into in In such proceedings the burden shall be determined regarding any of these good faith by the conditional resident on the alien to establish that he or she issues, the director shall offer the alien, but the marriage was terminated complied with the requirement to file petitioners the opportunity to rebut other than by death, and the conditional the joint petition within the designated such information. If the petitioners fail resident was not at fault in failing to file period. Form I–751 may be filed after to overcome such derogatory a timely petition; or the expiration of the 90-day period only information the director may deny the (iii) The qualifying marriage was if the alien establishes to the satisfaction joint petition, terminate the alien’s entered into in good faith by the of the director, in writing, that there was permanent residence, and issue a notice conditional resident but during the good cause for the failure to file Form to appear to initiate removal marriage the alien spouse or child was I–751 within the required time period. proceedings. If derogatory information battered by or subjected to extreme If the joint petition is filed prior to the not relating to any of these issues is cruelty committed by the citizen or jurisdiction vesting with the determined during the course of the permanent resident spouse or parent. immigration judge in removal interview, such information shall be (2) A conditional resident who is in proceedings and the director excuses forwarded to the investigations unit for exclusion, deportation, or removal the late filing and approves the petition, appropriate action. If no unresolved proceedings may apply for the waiver he or she shall restore the alien’s derogatory information is determined only until such time as there is a final permanent residence status, remove the relating to these issues, the petition order of exclusion, deportation or conditional basis of such status and shall be approved and the conditional removal. cancel any outstanding notice to appear basis of the alien’s permanent residence * * * * * in accordance with § 239.2 of this status removed, regardless of any action (d) Interview. The service center chapter. If the joint petition is not filed taken or contemplated regarding other director may refer the application to the until after jurisdiction vests with the possible grounds for removal. appropriate local office and require that immigration judge, the immigration (d) * * * the alien appear for an interview in judge may terminate the matter upon (2) Denial. If the director denies the connection with the application for a joint motion by the alien and the joint petition, he or she shall provide waiver. The director shall deny the Service. written notice to the alien of the application and initiate removal (b) * * * decision and the reason(s) therefor and proceedings if the alien fails to appear shall issue a notice to appear under (3) Termination of status for failure to for the interview as required, unless the section 239 of the Act and 8 CFR part appear for interview. If the conditional alien establishes good cause for such 239. The alien’s lawful permanent resident alien and/or the petitioning failure and the interview is rescheduled. resident status shall be terminated as of spouse fail to appear for an interview in (e) Adjudication of waiver the date of the director’s written connection with the joint petition application. (1) Application based on decision. The alien shall also be required by section 216(c) of the Act, claim of hardship. In considering an instructed to surrender any Alien the alien’s permanent residence status application for a waiver based upon an Registration Receipt Card previously will be automatically terminated as of alien’s claim that extreme hardship issued by the Service. No appeal shall the second anniversary of the date on would result from the alien’s removal lie from the decision of the director; which the alien obtained permanent from the United States, the director however, the alien may seek review of residence. The alien shall be provided shall take into account only those the decision in removal proceedings. In with written notification of the factors that arose subsequent to the such proceedings the burden of proof termination and the reasons therefor, alien’s entry as a conditional permanent shall be on the Service to establish, by and a notice to appear shall be issued resident. The director shall bear in mind a preponderance of the evidence, that placing the alien under removal that any removal from the United States the facts and information set forth by proceedings. The alien may seek review is likely to result in a certain degree of the petitioners are not true or that the of the decision to terminate his or her hardship, and that only in those cases petition was properly denied. status in such proceedings, but the where the hardship is extreme should 57. Section 216.5 is amended by burden shall be on the alien to establish the application for a waiver be granted. revising paragraphs (a), (d), (e)(1), compliance with the interview The burden of establishing that extreme (e)(3)(ii), and (f) to read as follows: requirements. If the alien submits a hardship exists rests solely with the written request that the interview be § 216.5 Waiver of requirement to file joint applicant. rescheduled or that the interview be petition to remove conditions by alien * * * * * waived, and the director determines that spouse. (3) * * * there is good cause for granting the (a) General. (1) A conditional resident (ii) A conditional resident or former request, the interview may be alien who is unable to meet the conditional resident who has not rescheduled or waived, as appropriate. requirements under section 216 of the departed the United States after If the interview is rescheduled at the Act for a joint petition for removal of the termination of resident status may apply request of the petitioners, the Service conditional basis of his or her for the waiver. The conditional resident shall not be required to conduct the permanent resident status may file Form may apply for the waiver regardless of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10351 his or her present marital status. The the Visa Waiver Pilot Program, Program applicant arriving at a land conditional resident may still be whichever comes first, Ireland has been border port-of-entry must provide residing with the citizen or permanent designated as a Visa Waiver Pilot evidence to the immigration officer of resident spouse, or may be divorced or Program country with Probationary financial solvency and a domicile separated. Status in accordance with section 217(g) abroad to which the applicant intends to * * * * * of the Act. return. An applicant arriving at a land- (f) Decision. The director shall Round trip ticket means any return border port-of-entry will be charged a provide the alien with written notice of trip transportation ticket in the name of fee as prescribed in § 103.7(b)(1) of this the decision on the application for an arriving Visa Waiver Pilot Program chapter for issuance of Form I–94W, waiver. If the decision is adverse, the applicant on a participating carrier valid Nonimmigrant Visa Waiver Arrival/ director shall advise the alien of the for at least 1 year, electronic ticket Departure Form. A round-trip reasons therefor, notify the alien of the record, airline employee passes transportation ticket is not required of termination of his or her permanent indicating return passage, individual applicants at land border ports-of-entry. residence status, instruct the alien to vouchers for return passage, group (d) Aliens in transit. An alien who is surrender any Alien Registration vouchers for return passage for charter in transit through the United States is Receipt Card issued by the Service and flights, and military travel orders which eligible to apply for admission under issue a notice to appear placing the include military dependents for return the Visa Waiver Pilot Program, provided alien in removal proceedings. No appeal to duty stations outside the United the applicant meets all other program shall lie from the decision of the States on U.S. military flights. A period requirements. director; however, the alien may seek of validity of 1 year need not be 61. Section 217.3 is revised to read as review of such decision in removal reflected on the ticket itself, provided follows: proceedings. that the carrier agrees that it will honor the return portion of the ticket at any § 217.3 Maintenance of status. PART 217ÐVISA WAIVER PILOT time, as provided in Form I–775, Visa (a) Satisfactory departure. If an PROGRAM Waiver Pilot Program Agreement. emergency prevents an alien admitted (b) Special program requirements. (1) under this part from departing from the 58. The authority citation for part 217 General. In addition to meeting all of the United States within his or her period continues to read as follows: requirements for the Visa Waiver Pilot of authorized stay, the district director Authority: 8 U.S.C. 1103, 1187; 8 CFR part Program specified in section 217 of the having jurisdiction over the place of the 2. Act, each applicant must possess a alien’s temporary stay may, in his or her 59. Section 217.1 is revised to read as valid, unexpired passport issued by a discretion, grant a period of satisfactory follows: designated country and present a departure not to exceed 30 days. If completed, signed Form I–94W, departure is accomplished during that § 217.1 Scope. Nonimmigrant Visa Waiver Arrival/ period, the alien is to be regarded as The Visa Waiver Pilot Program Departure Form. having satisfactorily accomplished the (VWPP) described in this section is (2) Persons previously removed as visit without overstaying the allotted established pursuant to the provisions deportable aliens. Aliens who have been time. of section 217 of the Act. deported or removed from the United (b) Readmission after departure to 60. Section 217.2 is revised to read as States, after having been determined contiguous territory or adjacent island. follows: deportable, require the consent of the An alien admitted to the United States Attorney General to apply for admission under this part may be readmitted to the § 217.2 Eligibility. to the United States pursuant to section United States after a departure to foreign (a) Definitions. As used in this part, 212(a)(9)(A)(iii) of the Act. Such persons contiguous territory or adjacent island the term: may not be admitted to the United for the balance of his or her original Carrier refers to the owner, charterer, States under the provisions of this part Visa Waiver Pilot Program admission lessee, or authorized agent of any notwithstanding the fact that the period if he or she is otherwise commercial vessel or commercial required consent of the Attorney admissible and meets all the conditions aircraft engaged in transporting General may have been secured. Such of this part with the exception of arrival passengers to the United States from a aliens must secure a visa in order to be on a signatory carrier. foreign place. admitted to the United States as 62. Section 217.4 is amended by: Designated country refers to Andorra, nonimmigrants, unless otherwise a. Revising the section heading: Argentina, Australia, Austria, Belgium, exempt. b. Removing paragraph (a); Brunei, Denmark, Finland, France, (c) Restrictions on manner of arrival. c. Redesignating paragraphs (b), (c), Germany, Iceland, Italy, Japan, (1) Applicants arriving by air and sea. and (d) as paragraphs (a), (b), and (c) Liechtenstein, Luxembourg, Monaco, Applicants must arrive on a carrier that respectively; the Netherlands, New Zealand, Norway, is signatory to a Visa Waiver Pilot d. Revising newly redesignated San Marino, Spain, Sweden, Program Agreement and at the time of paragraph (a)(1); Switzerland, and the United Kingdom. arrival must have a round trip ticket that e. Adding a new paragraph (a)(3); The United Kingdom refers only to will transport the traveler out of the f. Revising newly redesignated British citizens who have the United States to any other foreign port paragraph (b); and by unrestricted right of permanent abode in or place as long as the trip does not g. Revising newly redesignated the United Kingdom (England, Scotland, terminate in contiguous territory or an paragraph (c) to read as follows: Wales, Northern Ireland, the Channel adjacent island; except that the round Islands and the Isle of Man); it does not trip ticket may transport the traveler to § 217.4 Inadmissibility and deportability. refer to British overseas citizens, British contiguous territory or an adjacent (a) Determinations of inadmissibility. dependent territories’ citizens, or island, if the traveler is a resident of the (1) An alien who applies for admission citizens of British Commonwealth country of destination. under the provisions of section 217 of countries. Effective April 1, 1995, until (2) Applicants arriving at land border the Act, who is determined by an September 30, 1998, or the expiration of ports-of-entry. Any Visa Waiver Pilot immigration officer not to be eligible for 10352 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations admission under that section or to be point of embarkation to the United 68. In § 223.1, paragraph (b) is revised inadmissible to the United States under States. Nothing in this part absolves the to read as follows: one or more of the grounds of carrier of the responsibility to remove inadmissibility listed in section 212 of any inadmissible or deportable alien at § 223.1 Purpose of documents. the Act (other than for lack of a visa), carrier expense, as provided in the * * * * * or who is in possession of and presents carrier agreement. (b) Refugee travel document. A fraudulent or counterfeit travel (2) Removal of inadmissible and refugee travel document is issued documents, will be refused admission deportable aliens who arrived at land pursuant to this part and article 28 of into the United States and removed. border ports-of-entry. Removal under the United Nations Convention of July Such refusal and removal shall be made this section will be by the first available 29, 1951, for the purpose of travel. at the level of the port director or means of transportation deemed Except as provided in § 223.3(d)(2)(i), a officer-in-charge, or an officer acting in appropriate by the district director. person who holds refugee status that capacity, and shall be effected pursuant to section 207 of the Act, or without referral of the alien to an § 217.5 [Removed and reserved] asylum status pursuant to section 208 of immigration judge for further inquiry, 63. Section 217.5 is removed and the Act, must have a refugee travel examination, or hearing, except that an reserved. document to return to the United States alien who presents himself or herself as 64. Section 217.6 is revised to read as after temporary travel abroad unless he an applicant for admission under follows: or she is in possession of a valid section 217 of the Act, who applies for advance parole document. asylum in the United States must be § 217.6 Carrier agreements. 69. In § 223.2, paragraph (b)(2) is issued a Form I–863, Notice of Referral (a) General. The carrier agreements revised to read as follows: to Immigration Judge, for a proceeding referred to in section 217(e) of the Act § 223.2 Processing. in accordance with § 208.2(b)(1) and (2) shall be made by the Commissioner on of this chapter. behalf of the Attorney General and shall * * * * * * * * * * be on Form I–775, Visa Waiver Pilot (b) * * * (3) Refusal of admission under Program Agreement. (2) Refugee travel document. (i) paragraph (a)(1) of this section shall not (b) Termination of agreements. The General. Except as otherwise provided constitute removal for purposes of the Commissioner, on behalf of the Attorney in this section, an application may be Act. General, may terminate any carrier approved if filed by a person who is in (b) Determination of deportability. (1) agreement under this part, with 5 days the United States at the time of An alien who has been admitted to the notice to a carrier, for the carrier’s application, and either holds valid United States under the provisions of failure to meet the terms of such refugee status under section 207 of the section 217 of the Act and of this part agreement. As a matter of discretion, the Act, valid asylum status under section who is determined by an immigration Commissioner may notify a carrier of 208 of the Act, or is a permanent officer to be deportable from the United the existence of a basis for termination resident and received such status as a States under one or more of the grounds of a carrier agreement under this part direct result of his or her asylum or of deportability listed in section 237 of and allow the carrier a period not to refugee status. the Act shall be removed from the exceed 15 days within which the carrier (ii) Discretionary authority to United States to his or her country of may bring itself into compliance with adjudicate an application from an alien nationality or last residence. Such the terms of the carrier agreement. The not within the United States. As a matter removal shall be determined by the agreement shall be subject to of discretion, a district director having district director who has jurisdiction cancellation by either party for any jurisdiction over a port-of-entry or a over the place where the alien is found, reason upon 15 days’ written notice to preinspection station where an alien is and shall be effected without referral of the other party. an applicant for admission, or an the alien to an immigration judge for a overseas district director having determination of deportability, except PART 221ÐADMISSION OF VISITORS jurisdiction over the place where an that an alien admitted as a Visa Waiver OR STUDENTS alien is physically present, may accept Pilot Program visitor who applies for and adjudicate an application for a 65. The authority citation for part 221 asylum in the United States must be refugee travel document from an alien is revised to read as follows: issued a Form I–863 for a proceeding in who previously had been admitted to accordance with § 208.2(b)(1) and (2) of Authority: 8 U.S.C. 1101, 1103, 1201; 8 the United States as a refugee, or who this chapter. CFR part 2. previously had been granted asylum status in the United States, and who had (2) Removal by the district director § 221.1 [Amended] under paragraph (b)(1) of this section is departed from the United States without equivalent in all respects and has the 66. Section 221.1 is amended in the having applied for such refugee travel same consequences as removal after last sentence by revising the term ‘‘part document, provided: proceedings conducted under section 103’’ to read ‘‘§ 103.6’’. (A) The alien submits a Form I–131, Application for Travel Document, with 240 of the Act. PART 223ÐREENTRY PERMITS, the fee required under § 103.7(b)(1) of (c)(1) Removal of inadmissible aliens REFUGEE TRAVEL DOCUMENTS, AND this chapter; who arrived by air or sea. Removal of an ADVANCE PAROLE DOCUMENTS alien from the United States under this (B) The district director is satisfied section may be effected using the return 67. The authority citation for part 223 that the alien did not intend to abandon portion of the round trip passage is revised to read as follows: his or her refugee status at the time of departure from the United States; presented by the alien at the time of Authority: 8 U.S.C. 1103, 1181, 1182, entry to the United States as required by 1186a, 1203, 1225, 1226, 1227, 1251; Protocol (C) The alien did not engage in any section 217(a)(7) of the Act. Such Relating to the Status of Refugees, November activities while outside the United removal shall be on the first available 1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR States that would be inconsistent with means of transportation to the alien’s part 2. continued refugee or asylee status; and Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10353

(D) The alien has been outside the §§ 234.1 and 234.2 [Redesignated as Headquarters Office of Inspections and United States for less than 1 year since §§ 232.1 and 232.2 respectively] is available upon written request. his or her last departure. 74. Sections 234.1 and 234.2 are * * * * * * * * * * redesignated as §§ 232.1 and 232.2 80. Newly redesignated § 233.4 is 70. In § 223.3, paragraph (d)(2) is respectively. revised to read as follows: revised to read as follows: PART 234Ð[REMOVED] § 233.4 Preinspection outside the United States. § 223.3 Validity and effect on admissibility. 75. Part 234 is removed. * * * * * 76. The following parts are (a) Form I–425 agreements. A (d) * * * redesignated as set forth in the table transportation line bringing applicants (2) Refugee travel document. (i) below: for admission to the United States Inspection and immigration status. through preinspection sites outside the Upon arrival in the United States, an Old part New part United States shall enter into an alien who presents a valid unexpired agreement on Form I–425. Such an refugee travel document, or who has Part 238 ...... Part 233. agreement shall be negotiated directly been allowed to file an application for Part 239 ...... Part 234. by the Service’s Headquarters Office of a refugee travel document and this Inspections and the head office of the application has been approved under PART 233ÐCONTRACTS WITH transportation line. the procedure set forth in TRANSPORTATION LINES (b) Signatory lines. A list of § 223.2(b)(2)(ii), shall be examined as to transportation lines with currently valid 77. The authority citation for newly his or her admissibility under the Act. transportation agreements on Form I– designated part 233 continues to read as An alien shall be accorded the 425 is maintained by the Service’s follows: immigration status endorsed in his or Headquarters Office of Inspections and her refugee travel document, or (in the Authority: 8 U.S.C. 1103, 1228; 8 CFR part is available upon written request. case of an alien discussed in 2. 81. Newly redesignated § 233.5 is § 223.2(b)(2)(ii)) which will be endorsed 78. Newly redesignated § 233.1 is revised to read as follows: in such document, unless he or she is revised to read as follows: § 233.5 Aliens entering Guam pursuant to no longer eligible for that status, or he § 233.1 Contracts. section 14 of Public Law 99±396, ``Omnibus or she applies for and is found eligible Territories Act.' for some other immigration status. The contracts with transportation lines referred to in section 233(c) of the A transportation line bringing aliens (ii) Inadmissibility. If an alien who to Guam under the visa waiver presents a valid unexpired refugee Act may be entered into by the Executive Associate Commissioner for provisions of § 212.1(e) of this chapter travel document appears to the shall enter into an agreement on Form examining immigration officer to be Programs, or by an immigration officer designated by the Executive Associate I–760. Such agreements shall be inadmissible, he or she shall be referred negotiated directly by the Service’s for proceedings under section 240 of the Commissioner for Programs on behalf of the government and shall be Headquarters and head offices of the Act. Section 235(c) of the Act shall not transportation lines. be applicable. documented on Form I–420. The contracts with transportation lines PART 234ÐDESIGNATION OF PORTS PART 232ÐDETENTION OF ALIENS referred to in section 233(a) of the Act OF ENTRY FOR ALIENS ARRIVING BY FOR PHYSICAL AND MENTAL shall be made by the Commissioner on CIVIL AIRCRAFT EXAMINATION behalf of the government and shall be documented on Form I–426. The 82. The heading for newly 71. The heading for part 232 is revised contracts with transportation lines redesignated part 234 is revised as set to read as set forth above. desiring their passengers to be forth above. 72. The authority citation for part 232 preinspected at places outside the 83. The authority citation for newly is revised to read as follows: United States shall be made by the designated part 234 is revised to read as Authority: 8 U.S.C. 1103, 1222, 1224, 1252; Commissioner on behalf of the follows: 8 CFR part 2. government and shall be documented Authority: 8 U.S.C. 1103, 1221, 1229; 8 on Form I–425; except that contracts for CFR part 2. § 232.1 [Redesignated and revised] irregularly operated charter flights may 73. Section 232.1 is redesignated as be entered into by the Associate § 234.3 [Amended] § 232.3, and is revised to read as Commissioner for Examinations or an 84. Newly redesignated § 234.3 is follows: immigration officer designated by the amended by removing the last sentence. § 232.3 Arriving aliens. Executive Associate Commissioner for Programs and having jurisdiction over PART 235ÐINSPECTION OF PERSONS When a district director has the location where the inspection will APPLYING FOR ADMISSION reasonable grounds for believing that take place. persons arriving in the United States 85. The authority citation for part 235 79. In newly redesignated § 233.3, is revised to read as follows: should be detained for reasons specified paragraph (b) is revised to read as in section 232 of the Act, he or she follows (the list of agreements is Authority: 8 U.S.C. 1101, 1103, 1182, 1183, shall, after consultation with the United removed): 1201, 1224, 1225, 1226, 1227, 1228, 1252; 8 States Public Health Service at the port- CFR part 2. of-entry, notify the master or agent of § 233.3 Aliens in immediate and 86. Section 235.1 is revised to read as the arriving vessel or aircraft of his or continuous transit. follows: her intention to effect such detention by * * * * * serving on the master or agent Form I– (b) Signatory lines. A list of currently § 235.1 Scope of examination. 259 in accordance with § 235.3(a) of this effective Form I–426 agreements is (a) General. Application to lawfully chapter. maintained by the Service’s enter the United States shall be made in 10354 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations person to an immigration officer at a (3) An alien who is brought to the Canadian Border Boat Landing Card, U.S. port-of-entry when the port is open United States, whether or not to a and may thereafter enter the United for inspection, or as otherwise designated port-of-entry and regardless States along with the immediate shore designated in this section. of the means of transportation, after area of the United States on the body of (b) U.S. citizens. A person claiming having been interdicted in international water designated on the Form I–68 from U.S. citizenship must establish that fact or United States waters, is considered time to time for the duration of that to the examining officer’s satisfaction an applicant for admission and shall be navigation season without further and must present a U.S. passport if such examined under section 235(b) of the inspection. In the case of a Canadian passport is required under the Act. national or other resident of Canada provisions of 22 CFR part 53. If such (4) An alien stowaway is not an having a common nationality with applicant for admission fails to satisfy applicant for admission and may not be Canadians, the Form I–68 shall be valid the examining immigration officer that admitted to the United States. A only for the purpose of visits not to he or she is a U.S. citizen, he or she stowaway shall be removed from the exceed 72 hours and only if the alien shall thereafter be inspected as an alien. United States under section 235(a)(2) of will remain in nearby shopping areas, (c) Alien members of United States the Act. The provisions of section 240 nearby residential neighborhoods, or Armed Forces and members of a force of the Act are not applicable to other similar areas adjacent to the of a NATO country. Any alien member stowaways, nor is the stowaway entitled immediate shore area of the United of the United States Armed Forces who to further hearing or review of the States. If the bearer of Form I–68 seeks is in the uniform of, or bears documents removal, except that an alien stowaway to enter the United States by means identifying him or her as a member of, who indicates an intention to apply for other than small craft of less than 5 net such Armed Forces, and who is coming asylum shall be referred to an asylum tons without merchandise, or if he or to or departing from the United States officer for a determination of credible she seeks to enter the United States for under official orders or permit of such fear of persecution in accordance with other purposes, or if he or she is an Armed Forces is not subject to the section 235(b)(1)(B) of the Act and alien, other than a lawful permanent removal provisions of the Act. A § 208.30 of this chapter. An alien resident alien of the United States, and member of the force of a NATO country stowaway who is determined to have a intends to proceed beyond an area signatory to Article III of the Status of credible fear of persecution shall have adjacent to the immediate shore area of Forces Agreement seeking to enter the his or her asylum application the United States, or remains in the adjudicated in accordance with United States under official orders is United States longer than 72 hours, he § 208.2(b)(2) of this chapter. Nothing in exempt from the control provision of the or she must apply for admission at a this section shall be construed to require Act. Any alien who is a member of United States port-of-entry. expedited removal proceedings in (f) Form I–94, Arrival Departure either of the foregoing classes may, accordance with section 235(b)(1) of the Record. (1) Unless otherwise exempted, upon request, be inspected and his or Act. A stowaway who absconds either each arriving nonimmigrant who is her entry as an alien may be recorded. prior to inspection by an immigration admitted to the United States shall be If the alien does not appear to the officer or after being ordered removed as issued, upon payment of a fee examining immigration officer to be a stowaway pursuant to section prescribed in § 103.7(b)(1) of this clearly and beyond a doubt entitled to 235(a)(2) of the Act is not entitled to chapter for land border admissions, a enter the United States under the removal proceedings under section 240 Form I–94 as evidence of the terms of provisions of the Act, the alien shall be of the Act and shall be removed under admission. A Form I–94 issued at a land so informed and his or her entry shall section 235(a)(2) of the Act as if border port-of-entry shall be considered not be recorded. encountered upon arrival. A stowaway issued for multiple entries unless (d) Alien applicants for admission. (1) who has been removed pursuant to specifically annotated for a limited Each alien seeking admission at a section 235(a)(2) of the Act and this number of entries. A Form I–94 issued United States port-of-entry shall present section shall be considered to have been at other than a land border port-of-entry, whatever documents are required and formally removed from the United unless issued for multiple entries, must shall establish to the satisfaction of the States for all purposes under the Act. be surrendered upon departure from the immigration officer that he or she is not (e) U.S. citizens, lawful permanent United States in accordance with the subject to removal under the residents of the United States, Canadian instructions on the form. Form I–94 is immigration laws, Executive Orders, or nationals, and other residents of not required by: Presidential Proclamations and is Canada having a common nationality (i) Any nonimmigrant alien described entitled under all of the applicable with Canadians, entering the United in § 212.1(a) of this chapter and 22 CFR provisions of the immigration laws and States by small craft. Upon being 41.33 who is admitted as a visitor for this chapter to enter the United States. inspected by an immigration officer and business or pleasure or admitted to A person claiming to have been lawfully found eligible for admission as a citizen proceed in direct transit through the admitted for permanent residence must of the United States, or found eligible United States; establish that fact to the satisfaction of for admission as a lawful permanent (ii) Any nonimmigrant alien residing the inspecting immigration officer and resident of the United States, or in the in the British Virgin Islands who was must present proper documents in case of a Canadian national or other admitted only to the U.S. Virgin Islands accordance with § 211.1 of this chapter. resident of Canada having a common as a visitor for business or pleasure (2) An alien present in the United nationality with Canadians being found under § 212.1(b) of this chapter; States who has not been admitted or eligible for admission as a temporary (iii) Any Mexican national in paroled or an alien who seeks entry at visitor for pleasure, a person who possession of a valid nonresident alien other than an open, designated port-of- desires to enter the United States from Mexican border crossing card, or a valid entry, except as otherwise permitted in Canada in a small pleasure craft of less Mexican passport and a multiple-entry this section, is subject to the provisions than 5 net tons without merchandise nonimmigrant visa issued under section of section 212(a) of the Act and to may be issued, upon application and 101(a)(15)(B) of the Act, who is removal under section 235(b) or 240 of payment of a fee prescribed under admitted as a nonimmigrant visitor at a the Act. § 103.7(b)(1) of this chapter, Form I–68, Mexican border port of entry for a Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10355 period not to exceed 72 hours to visit have such alien testify, and any determines, in the exercise of discretion, within 25 miles of the border; accompanying aliens whose protection that the delay caused by publication (iv) Bearers of Mexican diplomatic or or guardianship will be required should would adversely affect the interests of official passports described in § 212.1(c– such alien be found inadmissible shall the United States or the effective 1) of this chapter. be deferred for such time and under enforcement of the immigration laws, (2) Paroled aliens. Any alien paroled such conditions as the district director the Commissioner’s designation shall into the United States under section in whose district the port is located become effective immediately upon 212(d)(5) of the Act, including any alien imposes. issuance, and shall be published in the crewmember, shall be issued a 88. Section 235.3 is revised to read as Federal Register as soon as practicable completely executed Form I–94, follows: thereafter. When these provisions are in endorsed with the parole stamp. effect for aliens who enter without 87. Section 235.2 is revised to read as § 235.3 Inadmissible aliens and expedited removal. inspection, the burden of proof rests follows: (a) Detention prior to inspection. All with the alien to affirmatively show that he or she has the required continuous § 235.2 Parole for deferred inspection. persons arriving at a port-of-entry in the United States by vessel or aircraft shall physical presence in the United States. (a) A district director may, in his or Any absence from the United States her discretion, defer the inspection of be detained aboard the vessel or at the airport of arrival by the owner, agent, shall serve to break the period of any vessel or aircraft, or of any alien, to continuous physical presence. An alien another Service office or port-of-entry. master, commanding officer, person in charge, purser, or consignee of such who was not inspected and admitted or Any alien coming to a United States paroled into the United States but who port from a foreign port, from an vessel or aircraft until admitted or otherwise permitted to land by an establishes that he or she has been outlying possession of the United States, continuously physically present in the from Guam, Puerto Rico, or the Virgin officer of the Service. Notice or order to detain shall not be required. The owner, United States for the 2-year period Islands of the United States, or from immediately prior to the date of another port of the United States at agent, master, commanding officer, person in charge, purser, or consignee of determination of inadmissibility shall which examination under this part was be detained in accordance with section deferred, shall be regarded as an such vessel or aircraft shall deliver every alien requiring examination to an 235(b)(2) of the Act for a proceeding applicant for admission at that onward under section 240 of the Act. port. immigration officer for inspection or to (b) An examining immigration officer a medical officer for examination. The (2) Determination of inadmissibility. may defer further examination and refer Service will not be liable for any (i) Record of proceeding. An alien who the alien’s case to the district director expenses related to such detention or is arriving in the United States, or other having jurisdiction over the place where presentation or for any expenses of a alien as designated pursuant to the alien is seeking admission, or over passenger who has not been presented paragraph (b)(1)(ii) of this section, who the place of the alien’s residence or for inspection and for whom a is determined to be inadmissible under destination in the United States, if the determination has not been made section 212(a)(6)(C) or 212(a)(7) of the examining immigration officer has concerning admissibility by a Service Act (except an alien for whom reason to believe that the alien can officer. documentary requirements are waived overcome a finding of inadmissibility (b) Expedited removal. (1) under § 211.1(b)(3) or § 212.1 of this by: Applicability. The expedited removal chapter), shall be ordered removed from (1) Posting a bond under section 213 provisions shall apply to the following the United States in accordance with of the Act; classes of aliens who are determined to section 235(b)(1) of the Act. In every (2) Seeking and obtaining a waiver be inadmissible under section case in which the expedited removal under section 211 or 212(d)(3) or (4) of 212(a)(6)(C) or (7) of the Act: provisions will be applied and before the Act; or (i) Arriving aliens, as defined in removing an alien from the United (3) Presenting additional evidence of § 1.1(q) of this chapter, except for States pursuant to this section, the admissibility not available at the time citizens of Cuba arriving at a United examining immigration officer shall and place of the initial examination. States port-of-entry by aircraft; create a record of the facts of the case (c) Such deferral shall be (ii) As specifically designated by the and statements made by the alien. This accomplished pursuant to the Commissioner, aliens who arrive in, shall be accomplished by means of a provisions of section 212(d)(5) of the attempt to enter, or have entered the sworn statement using Form I–867AB, Act for the period of time necessary to United States without having been Record of Sworn Statement in complete the deferred inspection. admitted or paroled following Proceedings under Section 235(b)(1) of (d) Refusal of a district director to inspection by an immigration officer at the Act. The examining immigration authorize admission under section 213 a designated port-of-entry, and who officer shall read (or have read) to the of the Act, or to grant an application for have not established to the satisfaction alien all information contained on Form the benefits of section 211 or section of the immigration officer that they have I–867A. Following questioning and 212(d) (3) or (4) of the Act, shall be been physically present in the United recording of the alien’s statement without prejudice to the renewal of such States continuously for the 2-year regarding identity, alienage, and application or the authorizing of such period immediately prior to the date of inadmissibility, the examining admission by the immigration judge determination of inadmissibility. The immigration officer shall record the without additional fee. Commissioner shall have the sole alien’s response to the questions (e) Whenever an alien on arrival is discretion to apply the provisions of contained on Form I–867B, and have the found or believed to be suffering from section 235(b)(1) of the Act, at any time, alien read (or have read to him or her) a disability that renders it impractical to to any class of aliens described in this the statement, and the alien shall sign proceed with the examination under the section. The Commissioner’s and initial each page of the statement Act, the examination of such alien, designation shall become effective upon and each correction. The examining members of his or her family concerning publication of a notice in the Federal immigration officer shall advise the whose admissibility it is necessary to Register. However, if the Commissioner alien of the charges against him or her 10356 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations on Form I–860, Notice and Order of of the alien until the alien has been citizen status cannot be verified will be Expedited Removal, and the alien shall referred for an interview by an asylum advised of the penalties for perjury, and be given an opportunity to respond to officer in accordance with § 208.30 of will be placed under oath or allowed to those charges in the sworn statement. this chapter to determine if the alien has make a declaration as permitted under After obtaining supervisory concurrence a credible fear of persecution. The 28 U.S.C. 1746, concerning his or her in accordance with paragraph (b)(7) of examining immigration officer shall lawful admission for permanent this section, the examining immigration record sufficient information in the residence, admission as a refugee under official shall serve the alien with Form sworn statement to establish and record section 207 of the Act, grant of asylum I–860 and the alien shall sign the that the alien has indicated such status under section 208 of the Act, or reverse of the form acknowledging intention, fear, or concern, and to claim to U.S. citizenship. A written receipt. Interpretative assistance shall be establish the alien’s inadmissibility. statement shall be taken from the alien used if necessary to communicate with (i) Referral. The referring officer shall in the alien’s own language and the alien. provide the alien with a written handwriting, stating that he or she (ii) No entitlement to hearings and disclosure on Form M–444, Information declares, certifies, verifies, or states that appeals. Except as otherwise provided About Credible Fear Interview, the claim is true and correct. The in this section, such alien is not entitled describing: immigration officer shall issue an to a hearing before an immigration judge (A) The purpose of the referral and expedited order of removal under in proceedings conducted pursuant to description of the credible fear section 235(b)(1)(A)(i) of the Act and section 240 of the Act, or to an appeal interview process; refer the alien to the immigration judge of the expedited removal order to the (B) The right to consult with other for review of the order in accordance Board of Immigration Appeals. persons prior to the interview and any with paragraph (b)(5)(iv) of this section (iii) Detention and parole of alien in review thereof at no expense to the and § 235.6(a)(2)(ii). The person shall be expedited removal. An alien whose United States Government; detained pending review of the inadmissibility is being considered (C) The right to request a review by expedited removal order under this under this section or who has been an immigration judge of the asylum section. Parole of such person, in ordered removed pursuant to this officer’s credible fear determination; accordance with section 212(d)(5) of the section shall be detained pending and Act, may be permitted only when the determination and removal, except that (D) The consequences of failure to Attorney General determines, in the parole of such alien, in accordance with establish a credible fear of persecution. exercise of discretion, that parole is section 212(d)(5) of the Act, may be (ii) Detention pending credible fear required to meet a medical emergency permitted only when the Attorney interview. Pending the credible fear or is necessary for a legitimate law General determines, in the exercise of determination by an asylum officer and enforcement objective. discretion, that parole is required to any review of that determination by an (ii) Verified lawful permanent meet a medical emergency or is immigration judge, the alien shall be residents. If the claim to lawful necessary for a legitimate law detained. Parole of such alien in permanent resident status is verified, enforcement objective. accordance with section 212(d)(5) of the and such status has not been terminated (3) Additional charges of Act may be permitted only when the in exclusion, deportation, or removal inadmissibility. In the expedited Attorney General determines, in the proceedings, the examining immigration removal process, the Service may not exercise of discretion, that parole is officer shall not order the alien removed charge an alien with any additional required to meet a medical emergency pursuant to section 235(b)(1) of the Act. grounds of inadmissibility other than or is necessary for a legitimate law The examining immigration officer will section 212(a)(6)(C) or 212(a)(7) of the enforcement objective. Prior to the determine in accordance with section Act. If an alien appears to be interview, the alien shall be given time 101(a)(13)(C) of the Act whether the inadmissible under other grounds to contact and consult with any person alien is considered to be making an contained in section 212(a) of the Act, or persons of his or her choosing. Such application for admission. If the alien is and if the Service wishes to pursue such consultation shall be made available in determined to be seeking admission and additional grounds of inadmissibility, accordance with the policies and the alien is otherwise admissible, except the alien shall be detained and referred procedures of the detention facility that he or she is not in possession of the for a removal hearing before an where the alien is detained, shall be at required documentation, a discretionary immigration judge pursuant to sections no expense to the government, and shall waiver of documentary requirements 235(b)(2) and 240 of the Act for inquiry not unreasonably delay the process. may be considered in accordance with into all charges. Once the alien is in (5) Claim to lawful permanent section 211(b) of the Act and removal proceedings under section 240 resident, refugee, or asylee status or U.S. § 211.1(b)(3) of this chapter or the of the Act, the Service is not precluded citizenship.—(i) Verification of status. If alien’s inspection may be deferred to an from lodging additional charges against an applicant for admission who is onward office for presentation of the the alien. Nothing in this paragraph subject to expedited removal pursuant required documents. If the alien appears shall preclude the Service from to section 235(b)(1) of the Act claims to to be inadmissible, the immigration pursuing such additional grounds of have been lawfully admitted for officer may initiate removal proceedings inadmissibility against the alien in any permanent residence, admitted as a against the alien under section 240 of subsequent attempt to reenter the refugee under section 207 of the Act, the Act. United States, provided the additional granted asylum under section 208 of the (iii) Verified refugees and asylees. If a grounds of inadmissibility still exist. Act, or claims to be a U.S. citizen, the check of Service records or other means (4) Claim of asylum or fear of immigration officer shall attempt to indicates that the alien has been granted persecution. If an alien subject to the verify the alien’s claim. Such refugee status or asylee status, and such expedited removal provisions indicates verification shall include a check of all status has not been terminated in an intention to apply for asylum, a fear available Service data systems and any deportation, exclusion, or removal of persecution, or a fear of return to his other means available to the officer. An proceedings, the immigration officer or her country, the inspecting officer alien whose claim to lawful permanent shall not order the alien removed shall not proceed further with removal resident, refugee, asylee status, or U.S. pursuant to section 235(b)(1) of the Act. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10357

If the alien is not in possession of a port-of-entry. The alien will be allowed (10) Applicant for admission under valid, unexpired refugee travel to present evidence or provide sufficient section 217 of the Act. The provisions document, the examining immigration information to support the claim. Such of § 235.3(b) do not apply to an officer may accept an application for a evidence may consist of documentation applicant for admission under section refugee travel document in accordance in the possession of the alien, the 217 of the Act. with § 223.2(b)(2)(ii) of this chapter. If Service, or a third party. The examining (c) Arriving aliens placed in accepted, the immigration officer shall immigration officer will consider all proceedings under section 240 of the readmit the refugee or asylee in such evidence and information, make Act. Except as otherwise provided in accordance with § 223.3(d)(2)(i) of this further inquiry if necessary, and will this chapter, any arriving alien who chapter. If the alien is determined not to attempt to verify the alien’s status appears to the inspecting officer to be be eligible to file an application for a through a check of all available Service inadmissible, and who is placed in refugee travel document the data systems. The burden rests with the removal proceedings pursuant to section immigration officer may initiate removal alien to satisfy the examining 240 of the Act shall be detained in proceedings against the alien under immigration officer of the claim of accordance with section 235(b) of the section 240 of the Act. lawful admission or parole. If the alien Act. Parole of such alien shall only be (iv) Review of order for claimed lawful establishes that he or she was lawfully considered in accordance with permanent residents, refugees, asylees, admitted or paroled, the case will be § 212.5(a) of this chapter. This or U.S. citizens. A person whose claim examined to determine if grounds of paragraph shall also apply to any alien to U.S. citizenship has been verified deportability under section 237(a) of the who arrived before April 1, 1997, and may not be ordered removed. When an Act are applicable, or if paroled, who was placed in exclusion alien whose status has not been verified whether such parole has been, or should proceedings. but who is claiming under oath or under be, terminated, and whether the alien is (d) Service custody. The Service will penalty of perjury to be a lawful inadmissible under section 212(a) of the assume custody of any alien subject to permanent resident, refugee, asylee, or Act. An alien who cannot satisfy the detention under paragraph (b) or (c) of U.S. citizen is ordered removed examining officer that he or she was this section. In its discretion, the pursuant to section 235(b)(1) of the Act, lawfully admitted or paroled will be Service may require any alien who the case will be referred to an ordered removed pursuant to section appears inadmissible and who arrives at immigration judge for review of the 235(b)(1) of the Act. a land border port-of-entry from Canada expedited removal order under section (7) Review of expedited removal or Mexico, to remain in that country 235(b)(1)(C) of the Act and orders. Any removal order entered by an while awaiting a removal hearing. Such § 235.6(a)(2)(ii). If the immigration judge examining immigration officer pursuant alien shall be considered detained for a determines that the alien has never been to section 235(b)(1) of the Act must be proceeding within the meaning of admitted as a lawful permanent resident reviewed and approved by the section 235(b) of the Act and may be or as a refugee, granted asylum status, appropriate supervisor before the order ordered removed in absentia by an or is not a U.S. citizen, the order issued is considered final. Such supervisory immigration judge if the alien fails to by the immigration officer will be review shall not be delegated below the appear for the hearing. affirmed and the Service will remove (e) Detention in non-Service facility. level of the second line supervisor, or a the alien. There is no appeal from the Whenever an alien is taken into Service person acting in that capacity. The decision of the immigration judge. If the custody and detained at a facility other supervisory review shall include a immigration judge determines that the than at a Service Processing Center, the review of the sworn statement and any alien was once so admitted as a lawful public or private entities contracted to answers and statements made by the permanent resident or as a refugee, or perform such service shall have been alien regarding a fear of removal or was granted asylum status, or is a U.S. approved for such use by the Service’s return. The supervisory review and citizen, and such status has not been Jail Inspection Program or shall be approval of an expedited removal order terminated by final administrative performing such service under contract for an alien described in section action, the immigration judge will in compliance with the Standard 235(b)(1)(A)(iii) of the Act must include terminate proceedings and vacate the Statement of Work for Contract a review of any claim of lawful expedited removal order. The Service Detention Facilities. Both programs are admission or parole and any evidence or may initiate removal proceedings administered by the Detention and information presented to support such a against such an alien, but not against a Deportation section having jurisdiction claim, prior to approval of the order. In person determined to be a U.S. citizen, over the alien’s place of detention. such cases, the supervisor may request in proceedings under section 240 of the Under no circumstances shall an alien additional information from any source Act. During removal proceedings, the be detained in facilities not meeting the and may require further interview of the immigration judge may consider any four mandatory criteria for usage. These alien. waivers, exceptions, or requests for are: relief for which the alien is eligible. (8) Removal procedures relating to (1) 24-Hour supervision, (6) Opportunity for alien to establish expedited removal. An alien ordered (2) Conformance with safety and that he or she was admitted or paroled removed pursuant to section 235(b)(1) of emergency codes, into the United States. If the the Act shall be removed from the (3) Food service, and Commissioner determines that the United States in accordance with (4) Availability of emergency medical expedited removal provisions of section section 241(c) of the Act and 8 CFR part care. 235(b)(1) of the Act shall apply to any 241. (f) Privilege of communication. The or all aliens described in paragraph (9) Waivers of documentary mandatory notification requirements of (b)(2)(ii) of this section, such alien will requirements. Nothing in this section consular and diplomatic officers be given a reasonable opportunity to limits the discretionary authority of the pursuant to § 236.1(e) of this chapter establish to the satisfaction of the Attorney General, including authority apply when an inadmissible alien is examining immigration officer that he or under sections 211(b) or 212(d) of the detained for removal proceedings, she was admitted or paroled into the Act, to waive the documentary including for purpose of conducting the United States following inspection at a requirements for arriving aliens. credible fear determination. 10358 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

89. Section 235.4 is revised to read as made immediately prior to such issued by the asylum officer pursuant to follows: departure. The examination shall be section 235(b)(1)(B)(iii) of the Act. conducted in accordance with sections (iv) If an immigration officer verifies § 235.4 Withdrawal of application for 232, 235, and 240 of the Act and 8 CFR that an alien subject to expedited admission. parts 235 and 240. If it appears to the removal under section 235(b)(1) of the (a) The Attorney General may, in his examining immigration officer that any Act has been admitted as a lawful or her discretion, permit any alien person in the United States being permanent resident refugee, or asylee, or applicant for admission to withdraw his examined under this section is prima upon review pursuant to or her application for admission in lieu facie removable from the United States, § 235.3(b)(5)(iv) an immigration judge of removal proceedings under section further action with respect to his or her determines that the alien was once so 240 of the Act or expedited removal examination shall be deferred and admitted, provided that such status has under section 235(b)(1) of the Act. The further proceedings regarding not been terminated by final alien’s decision to withdraw his or her removability conducted as provided in administrative action, and the Service application for admission must be made section 240 of the Act and 8 CFR part initiates removal proceedings against voluntarily, but nothing in this section 240. When the foregoing inspection the alien under section 240 of the Act. shall be construed as to give an alien the procedure is applied to any aircraft, (2) Referral by Form I–863, Notice of right to withdraw his or her application persons examined and found admissible Referral to Immigration Judge. An for admission. Permission to withdraw shall be placed aboard the aircraft, or immigration officer will sign and deliver an application for admission should not kept at the airport separate and apart a Form I–863 to an alien in the normally be granted unless the alien from the general public until they are following cases: intends and is able to depart the United permitted to board the aircraft. No other (i) If, in accordance with section States immediately. An alien permitted person shall be permitted to depart on 235(b)(1)(B)(iii)(III) of the Act, an to withdraw his or her application for such aircraft until and unless he or she asylum officer determines that an alien admission shall normally remain in is found to be admissible as provided in does not have a credible fear of carrier or Service custody pending this section. persecution, and the alien requests a departure, unless the district director (b) In foreign territory. In the case of review of that determination by an determines that parole of the alien is any aircraft, vessel, or train proceeding immigration judge; or warranted in accordance with § 212.5(a) directly, without stopping, from a port (ii) If, in accordance with section of this chapter. or place in foreign territory to a port-of- 235(b)(1)(C) of the Act, an immigration (b) An immigration judge may allow entry in the United States, the officer refers an expedited removal only an arriving alien to withdraw an examination and inspection of order entered on an alien claiming to be application for admission. Once the passengers and crew required by the Act a lawful permanent resident, refugee, issue of inadmissibility has been and final determination of admissibility asylee, or U.S. citizen for whom the resolved, permission to withdraw an may be made immediately prior to such officer could not verify such status to an application for admission should departure at the port or place in the immigration judge for review of the ordinarily be granted only with the foreign territory and shall have the same order. concurrence of the Service. An effect under the Act as though made at (iii) If an immigration officer refers an immigration judge shall not allow an the destined port-of-entry in the United applicant described in § 208.2(b)(1) of alien to withdraw an application for States. this chapter to an immigration judge for admission unless the alien, in addition an asylum hearing under § 208.2(b)(2) of to demonstrating that he or she 91. Section 235.6 is revised to read as follows: this chapter. possesses both the intent and the means (b) Certification for mental condition; to depart immediately from the United § 235.6 Referral to immigration judge. medical appeal. An alien certified States, establishes that factors directly (a) Notice. (1) Referral by Form I–862, under sections 212(a)(1) and 232(b) of relating to the issue of inadmissibility Notice to Appear. An immigration the Act shall be advised by the indicate that the granting of the officer or asylum officer will sign and examining immigration officer that he or withdrawal would be in the interest of deliver a Form I–862 to an alien in the she may appeal to a board of medical justice. During the pendency of an following cases: examiners of the United States Public appeal from the order of removal, (i) If, in accordance with the Health Service pursuant to section 232 permission to withdraw an application provisions of section 235(b)(2)(A) of the of the Act. If such appeal is taken, the for admission must be obtained from the Act, the examining immigration officer district director shall arrange for the immigration judge or the Board. convening of the medical board. 90. Section 235.5 is revised to read as detains an alien for a proceeding before an immigration judge under section 240 follows: § 235.7 [Removed] of the Act; or § 235.5 Preinspection. (ii) If, in accordance with section 92. Section 235.7 is removed. (a) In United States territories and 235(b)(1)(B)(ii) of the Act, an asylum § 235.13 [Redesignated as § 235.7] possessions. In the case of any aircraft officer determines that an alien in 93. Section 235.13 is redesignated as proceeding from Guam, Puerto Rico, or expedited removal proceedings has a § 235.7. the United States Virgin Islands credible fear of persecution and refers 94. Section 235.8 is revised to read as destined directly and without touching the case to the immigration judge for follows: at a foreign port or place, to any other consideration of the application for of such places, or to one of the States asylum. § 235.8 Inadmissibility on security and of the United States or the District of (iii) If, in accordance with section related grounds. Columbia, the examination of the 235(b)(1)(B)(iii)(III) of the Act, the (a) Report. When an immigration passengers and crew required by the Act immigration judge determines that an officer or an immigration judge suspects may be made prior to the departure of alien in expedited removal proceedings that an arriving alien appears to be the aircraft, and in such event, final has a credible fear of persecution and inadmissible under section 212(a)(3)(A) determination of admissibility shall be vacates the expedited removal order (other than clause (ii)), (B), or (C) of the Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10359

Act, the immigration officer or the matter shall be conducted in by the Service but valid existing cards immigration judge shall order the alien accordance with the provisions of will continue to be acceptable removed and report the action promptly section 240 of the Act and other documentation of U.S. citizenship. to the district director who has applicable sections of the Act to the Possession of the identification card is administrative jurisdiction over the same extent as though the alien had not mandatory for any purpose. A U.S. place where the alien has arrived or been referred to an immigration judge Citizen Identification Card remains the where the hearing is being held. The by the examining immigration officer. In property of the United States. Because immigration officer shall, if possible, a case where the immigration judge the identification card is no longer take a brief sworn question-and-answer ordered the alien removed pursuant to issued, there are no provisions for statement from the alien, and the alien paragraph (a) of this section, the Service replacement cards. shall be notified by personal service of shall refer the case back to the (b) Surrender and voidance. (1) Form I–147, Notice of Temporary immigration judge and proceedings Institution of proceeding under section Inadmissibility, of the action taken and shall be automatically reopened upon 240 or 342 of the Act. A U.S. Citizen the right to submit a written statement receipt of the notice of referral. If Identification Card must be surrendered and additional information for confidential information, not previously provisionally to a Service office upon consideration by the Attorney General. considered in the matter, is presented notification by the district director that The district director shall forward the supporting the inadmissibility of the a proceeding under section 240 or 342 report to the regional director for further alien under section 212(a)(3)(A) (other of the Act is being instituted against the action as provided in paragraph (b) of than clause (ii)), (B) or (C) of the Act, the person to whom the card was issued. this section. disclosure of which, in the discretion of The card shall be returned to the person (b) Action by regional director. (1) In the immigration judge, may be if the final order in the proceeding does accordance with section 235(c)(2)(B) of prejudicial to the public interest, safety, not result in voiding the card under this the Act, the regional director may deny or security, the immigration judge may paragraph. A U.S. Citizen Identification any further inquiry or hearing by an again order the alien removed under the Card is automatically void if the person immigration judge and order the alien authority of section 235(c) of the Act to whom it was issued is determined to removed by personal service of Form I– and further action shall be taken as be an alien in a proceeding conducted 148, Notice of Permanent provided in this section. under section 240 of the Act, or if a Inadmissibility, or issue any other order (e) Nonapplicability. The provisions certificate, document, or record relating disposing of the case that the regional of this section shall apply only to to that person is canceled under section director considers appropriate. arriving aliens, as defined in § 1.1(q) of 342 of the Act. (2) If the regional director concludes this chapter. Aliens present in the (2) Investigation of validity of that the case does not meet the criteria United States who have not been identification card. A U.S. Citizen contained in section 235(c)(2)(B) of the admitted or paroled may be subject to Identification Card must be surrendered Act, the regional director may direct proceedings under Title V of the Act. provisionally upon notification by a that: district director that the validity of the (i) An immigration officer shall § 235.9 [Removed] card is being investigated. The card conduct a further examination of the 95. Section 235.9 is removed. shall be returned to the person who surrendered it if the investigation does alien, concerning the alien’s § 235.12 [Redesignated as § 235.9 and admissibility; or, revised] not result in a determination adverse to (ii) The alien’s case be referred to an his or her claim to be a United States 96. Section 235.12 is redesignated as immigration judge for a hearing, or for citizen. When an investigation results in § 235.9 and is revised to read as follows: the continuation of any prior hearing. a tentative determination adverse to the (3) The regional director’s decision § 235.9 Northern Marianas identification applicant’s claim to be a United States shall be in writing and shall be signed card. citizen, the applicant shall be notified by the regional director. Unless the During the two-year period that ended by certified mail directed to his or her written decision contains confidential July 1, 1990, the Service issued last known address. The notification information, the disclosure of which Northern Marianas Identification Cards shall inform the applicant of the basis would be prejudicial to the public to aliens who acquired United States for the determination and of the interest, safety, or security of the United citizenship when the Covenant to intention of the district director to States, the written decision shall be Establish a Commonwealth of the declare the card void unless within 30 served on the alien. If the written Northern Mariana Islands in Political days the applicant objects and demands decision contains such confidential Union with the United States entered an opportunity to see and rebut the information, the alien shall be served into force on November 3, 1986. These adverse evidence. Any rebuttal, with a separate written order showing cards remain valid as evidence of explanation, or evidence presented by the disposition of the case, but with the United States citizenship. Although the the applicant must be included in the confidential information deleted. Service no longer issues these cards, a record of proceeding. The determination (c) Finality of decision. The regional United States citizen to whom a card whether the applicant is a United States director’s decision under this section is was issued may file Form I–777, citizen must be based on the entire final when it is served upon the alien in Application for Issuance or record and the applicant shall be accordance with paragraph (b)(3) of this Replacement of Northern Marianas notified of the determination. If it is section. There is no administrative Card, to obtain replacement of a lost, determined that the applicant is not a appeal from the regional director’s stolen, or mutilated Northern Marianas United States citizen, the applicant shall decision. Identification Card. be notified of the reasons, and the card (d) Hearing by immigration judge. If 97. Section 235.10 is revised to read deemed void. There is no appeal from the regional director directs that an as follows: the district director’s decision. alien subject to removal under this (3) Admission of alienage. A U.S. section be given a hearing or further § 235.10 U.S. Citizen Identification Card. Citizen Identification Card is void if the hearing before an immigration judge, the (a) General. Form I–197, U.S. Citizen person to whom it was issued admits in hearing and all further proceedings in Identification Card, is no longer issued a statement signed before an 10360 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations immigration officer that he or she is an alien is subject thereto (e.g., if the 236.13 Ineligible aliens. alien and consents to the voidance of second anniversary of the marriage 236.14 Filing. the card. Upon signing the statement the upon which the immigrant visa is based 236.15 Voluntary departure and eligibility card must be surrendered to the occurred after the issuance of the visa for employment. 236.16 Travel outside the United States. immigration officer. and prior to the alien’s application for 236.17 Eligibility for Federal financial (4) Surrender of void card. A void admission) the endorsement on the visa assistance programs. U.S. Citizen Identification Card which shall be corrected and the alien shall be 236.18 Termination of Family Unity has not been returned to the Service admitted as a lawful permanent resident Program benefits. must be surrendered without delay to an without conditions, if otherwise Authority: 8 U.S.C. 1103, 1182, 1224, 1225, immigration officer or to the issuing admissible. 1226, 1227, 1362; 8 CFR part 2. (c) Expired conditional permanent office of the Service. Subpart AÐDetention of Aliens Prior to (c) U.S. Citizen Identification Card resident status. The lawful permanent Order of Removal previously issued on Form I–179. A resident alien status of a conditional valid Form I–179, U.S. Citizen resident automatically terminates if the § 236.1 Apprehension, custody, and Identification Card, continues to be conditional basis of such status is not detention. valid subject to the provisions of this removed by the Service through (a) Detainers. The issuance of a section. approval of a Form I–751, Petition to detainer under this section shall be 98. Section 235.11 is revised to read Remove the Conditions on Residence or, governed by the provisions of § 287.7 of as follows: in the case of an alien entrepreneur (as this chapter. defined in section 216A(f)(1) of the Act), (b) Warrant of arrest. (1) In general. At § 235.11 Admission of conditional Form I–829, Petition by Entrepreneur to the time of issuance of the notice to permanent residents. Remove Conditions. Therefore, an alien appear, or at any time thereafter and up (a) General. (1) Conditional residence who is seeking admission as a returning to the time removal proceedings are based on family relationship. An alien resident subsequent to the second completed, the respondent may be seeking admission to the United States anniversary of the date on which arrested and taken into custody under with an immigrant visa as the spouse or conditional residence was obtained the authority of Form I–200, Warrant of son or daughter of a United States (except as provided in § 211.1(b)(1) of Arrest. A warrant of arrest may be citizen or lawful permanent resident this chapter) and whose conditional issued only by those immigration shall be examined to determine whether basis of such residence has not been officers listed in § 287.5(e)(2) of this the conditions of section 216 of the Act removed pursuant to section 216(c) or chapter and may be served only by apply. If so, the alien shall be admitted 216A(c) of the Act, whichever is those immigration officers listed in conditionally for a period of 2 years. At applicable, shall be placed under § 287.5(e)(3) of this chapter. the time of admission, the alien shall be removal proceedings. However, in a (2) If, after the issuance of a warrant notified that the alien and his or her case where conditional residence was of arrest, a determination is made not to petitioning spouse must file a Form I– based on a marriage, removal serve it, any officer authorized to issue 751, Petition to Remove the Conditions proceedings may be terminated and the such warrant may authorize its on Residence, within the 90-day period alien may be admitted as a returning cancellation. immediately preceding the second resident if the required Form I–751 is (c) Custody issues and release anniversary of the alien’s admission for filed jointly, or by the alien alone (if procedures. (1) After the expiration of permanent residence. appropriate), and approved by the the Transition Period Custody Rules (2) Conditional residence based on Service. In the case of an alien under Public Law 104–208, no alien entrepreneurship. An alien seeking entrepreneur, removal proceedings may described in section 236(c)(1) of the Act admission to the United States with an be terminated and the alien admitted as shall be released from custody during immigrant visa as an alien entrepreneur a returning resident if the required Form removal proceedings except pursuant to (as defined in section 216A(f)(1) of the I–829 is filed by the alien entrepreneur section 236(c)(2) of the Act. Act) or the spouse or unmarried minor and approved by the Service. (2) Any officer authorized to issue a child of an alien entrepreneur shall be 99. Part 236 is revised to read as warrant of arrest may, in the officer’s admitted conditionally for a period of 2 follows: discretion, release an alien not years. At the time of admission, the described in section 236(c)(1) of the Act, alien shall be notified that the principal PART 236ÐAPPREHENSION AND under the conditions at section 236(a)(2) alien (entrepreneur) must file a Form I– DETENTION OF INADMISSIBLE AND and (3) of the Act; provided that the 829, Petition by Entrepreneur to Remove DEPORTABLE ALIENS; REMOVAL OF alien must demonstrate to the Conditions, within the 90-day period ALIENS ORDERED REMOVED satisfaction of the officer that such immediately preceding the second release would not pose a danger to Subpart AÐDetention of Aliens Prior to anniversary of the alien’s admission for Order of Removal property or persons, and that the alien permanent residence. is likely to appear for any future (b) Correction of endorsement on Sec. proceeding. immigrant visa. If the alien is subject to 236.1 Apprehension, custody, and (3) When an alien who, having been detention. the provisions of section 216 of the Act, 236.2 Confined aliens, incompetents, and arrested and taken into custody, has but the classification endorsed on the minors. been released, such release may be immigrant visa does not so indicate, the 236.3 Detention and release of juveniles. revoked at any time in the discretion of endorsement shall be corrected and the 236.4 Removal of S–5, S–6, and S–7 the district director, acting district alien shall be admitted as a lawful nonimmigrants. director, deputy district director, permanent resident on a conditional 236.5 Fingerprints and photographs. assistant district director for basis, if otherwise admissible. 236.6–236.9 Reserved. investigations, assistant district director Conversely, if the alien is not subject to Subpart BÐFamily Unity Program for detention and deportation, or officer the provisions of section 216 of the Act, 236.10 Description of program. in charge (except foreign), in which but the visa classification endorsed on 236.11 Definitions. event the alien may be taken into the immigrant visa indicates that the 236.12 Eligibility. physical custody and detained. If Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10361 detained, unless a breach has occurred, appeal the decision of an immigration Grenada any outstanding bond shall be revoked judge pursuant to paragraph (d)(1) of Guyana and canceled. this section. Hungary (4) The provisions of § 103.6 of this (ii) The alien, within 10 days, may Jamaica chapter shall apply to any bonds appeal from the district director’s Kazakhstan Kiribati authorized. Subject to the provisions of decision under paragraph (d)(2)(i) of Kuwait this section, the provisions of § 3.19 of this section. Kyrgyzstan this chapter shall govern availability to (iii) The alien, within 10 days, may Malaysia the respondent of recourse to other appeal from the district director’s Malta administrative authority for release from decision under paragraph (d)(2)(ii) of Mauritius custody. this section, except that no appeal shall Moldova (5) An immigration judge may not be allowed when the Service notifies the Mongolia exercise authority provided in this alien that it is ready to execute an order Nigeria Philippines section and the review process of removal and takes the alien into Poland described in paragraph (d) of this custody for that purpose. Romania section shall not apply with respect to: (4) Effect of filing an appeal. The Russian Federation (i) Arriving aliens, as described in filing of an appeal from a determination St. Kitts/Nevis § 1.1(q) of this chapter, including aliens of an immigration judge or district St. Lucia paroled pursuant to section 212(d)(5) of director under this paragraph shall not St. Vincent/Grenadines the Act, in removal proceedings, operate to delay compliance with the Seychelles (ii) Aliens described in section order, nor stay the administrative Sierra Leone 237(a)(4) of the Act, or proceedings or removal. Singapore (iii) After the expiration of section (e) Privilege of communication. Every Slovak Republic 303(b)(3) of Public Law 104–208, aliens South Korea detained alien shall be notified that he Tajikistan described in section 236(c)(1) of the Act. or she may communicate with the Tanzania (d) Appeals from custody decisions. consular or diplomatic officers of the Tonga (1) Application to immigration judge. country of his or her nationality in the Trinidad/Tobago After an initial custody determination United States. Existing treaties with the Turkmenistan by the district director, including the following countries require immediate Tuvalu setting of a bond, the respondent may, communication with appropriate Ukraine at any time before an order under 8 CFR consular or diplomatic officers United Kingdom 3 4 part 240 becomes final, request whenever nationals of the following U.S.S.R. amelioration of the conditions under Uzbekistan countries are detained in removal Zambia which he or she may be released. Prior proceedings, whether or not requested to such final order, and except as by the alien and even if the alien (f) Notification to Executive Office for otherwise provided in this chapter, the requests that no communication be Immigration Review of change in immigration judge is authorized to undertaken in his or her behalf. When custody status. The Service shall notify exercise the authority in section 236 of notifying consular or diplomatic the Immigration Court having the Act to detain the alien in custody, officials, Service officers shall not reveal administrative control over the Record release the alien, and determine the the fact that any detained alien has of Proceeding of any change in custody amount of bond, if any, under which the applied for asylum or withholding of location or of release from, or respondent may be released, as removal. subsequent taking into, Service custody provided in § 3.19 of this chapter. If the 1 of a respondent/applicant pursuant to Albania § 3.19(g) of this chapter. alien has been released from custody, an Antigua application for amelioration of the terms Armenia § 236.2 Confined aliens, incompetents, of release must be filed within 7 days of Azerbaijan and minors. release. Once a removal order becomes Bahamas (a) Service. If the respondent is administratively final, determinations Barbados confined, or if he or she is an regarding custody and bond are made by Belarus incompetent, or a minor under the age the district director. Belize (2) Application to the district director. Brunei of 14, the notice to appear, and the Bulgaria (i) After expiration of the 7-day period warrant of arrest, if issued, shall be China (People’s Republic of) 2 served in the manner prescribed in in paragraph (d)(1) of this section, the Costa Rica respondent may request review by the § 239.1 of this chapter upon the person Cyprus or persons specified by § 103.5a(c) of district director of the conditions of his Czech Republic or her release. Dominica this chapter. (ii) After an order becomes Fiji (b) Service custody and cost of administratively final, the respondent Gambia, The maintenance. An alien confined may request review by the district Georgia because of physical or mental disability director of the conditions of his or her Ghana in an institution or hospital shall not be release. 1 3 (3) Appeal to the Board of Arrangements with these countries provide that British dependencies are also covered by this U.S. authorities shall notify responsible agreement. They are: Anguilla, British Virgin Immigration Appeals. An appeal representatives within 72 hours of the arrest or Islands, Hong Kong, Bermuda, Montserrat, and the relating to bond and custody detention of one of their nationals. Turks and Caicos Islands. Their residents carry determinations may be filed to the 2 When Taiwan nationals (who carry ‘‘Republic British passports. Board of Immigration Appeals in the of China’’ passports) are detained, notification 4 All U.S.S.R. successor states are covered by this should be made to the nearest office of the Taiwan agreement. They are: Armenia, Azerbaijan, Belarus, following circumstances: Economic and Cultural Representative’s Office, the Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian (i) In accordance with § 3.38 of this unofficial entity representing Taiwan’s interests in Federation, Tajikistan, Turkmenistan, Ukraine, and chapter, the alien or the Service may the United States. Uzbekistan. 10362 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations accepted into physical custody by the other than those identified in voluntary departure form or being Service until an order of removal has paragraphs (b)(1)(i) through (iii) of this allowed to withdraw his or her been entered and the Service is ready to section, who executes an agreement to application for admission, that he or she remove the alien. When such an alien is care for the juvenile’s well-being and to may make a telephone call to a parent, an inmate of a public or private ensure the juvenile’s presence at all close relative, a friend, or to an institution at the time of the future proceedings before the Service or organization found on the free legal commencement of the removal an immigration judge. services list. A juvenile who does not proceedings, expenses for the (c) Juvenile coordinator. The case of a reside in Mexico or Canada who is maintenance of the alien shall not be juvenile for whom detention is apprehended shall be provided access to incurred by the Government until he or determined to be necessary should be a telephone and must in fact she is taken into physical custody by the referred to the ‘‘Juvenile Coordinator,’’ communicate either with a parent, adult Service. whose responsibilities should include, relative, friend, or with an organization but not be limited to, finding suitable found on the free legal services list prior § 236.3 Detention and release of juveniles. placement of the juvenile in a facility to presentation of the voluntary (a) Juveniles. A juvenile is defined as designated for the occupancy of departure form. If such juvenile, of his an alien under the age of 18 years. juveniles. These may include juvenile or her own volition, asks to contact a (b) Release. Juveniles for whom bond facilities contracted by the Service, state consular officer, and does in fact make has been posted, for whom parole has or local juvenile facilities, or other such contact, the requirements of this been authorized, or who have been appropriate agencies authorized to section are satisfied. ordered released on recognizance, shall accommodate juveniles by the laws of (h) Notice and request for disposition. be released pursuant to the following the state or locality. When a juvenile alien is apprehended, guidelines: (d) Detention. In the case of a juvenile he or she must be given a Form I–770, (1) Juveniles shall be released, in for whom detention is determined to be Notice of Rights and Disposition. If the order of preference, to: necessary, for such interim period of juvenile is less than 14 years of age or (i) A parent; time as is required to locate suitable unable to understand the notice, the (ii) Legal guardian; or placement for the juvenile, whether notice shall be read and explained to the (iii) An adult relative (brother, sister, such placement is under paragraph (b) juvenile in a language he or she aunt, uncle, grandparent) who is not or (c) of this section, the juvenile may understands. In the event a juvenile presently in Service detention, unless a be temporarily held by Service who has requested a hearing pursuant to determination is made that the authorities or placed in any Service the notice subsequently decides to detention of such juvenile is required to detention facility having separate accept voluntary departure or is allowed secure his or her timely appearance accommodations for juveniles. to withdraw his or her application for before the Service or the Immigration (e) Refusal of release. If a parent of a admission, a new Form I–770 shall be Court or to ensure the juvenile’s safety juvenile detained by the Service can be given to, and signed by the juvenile. or that of others. In cases where the located, and is otherwise suitable to parent, legal guardian, or adult relative receive custody of the juvenile, and the § 236.4 Removal of S±5, S±6, and S±7 resides at a location distant from where juvenile indicates a refusal to be nonimmigrants. the juvenile is detained, he or she may released to his or her parent, the (a) Condition of classification. As a secure release at a Service office located parent(s) shall be notified of the condition of classification and near the parent, legal guardian, or adult juvenile’s refusal to be released to the continued stay in classification relative. parent(s), and shall be afforded an pursuant to section 101(a)(15)(S) of the (2) If an individual specified in opportunity to present their views to the Act, nonimmigrants in S classification paragraphs (b)(1)(i) through (iii) of this district director, chief patrol agent, or must have executed Form I–854, Part B, section cannot be located to accept immigration judge before a custody Inter-agency Alien Witness and custody of a juvenile, and the juvenile determination is made. Informant Record, certifying that they has identified a parent, legal guardian, (f) Notice to parent of application for have knowingly waived their right to a or adult relative in Service detention, relief. If a juvenile seeks release from removal hearing and right to contest, simultaneous release of the juvenile and detention, voluntary departure, parole, other than on the basis of an application the parent, legal guardian, or adult or any form of relief from removal, for withholding of deportation or relative shall be evaluated on a where it appears that the grant of such removal, any removal action, including discretionary case-by-case basis. relief may effectively terminate some detention pending deportation or (3) In cases where the parent or legal interest inherent in the parent-child removal, instituted before lawful guardian is in Service detention or relationship and/or the juvenile’s rights permanent resident status is obtained. outside the United States, the juvenile and interests are adverse with those of (b) Determination of deportability. (1) may be released to such person as is the parent, and the parent is presently A determination to remove a deportable designated by the parent or legal residing in the United States, the parent alien classified pursuant to section guardian in a sworn affidavit, executed shall be given notice of the juvenile’s 101(a)(15)(S) of the Act shall be made by before an immigration officer or application for relief, and shall be the district director having jurisdiction consular officer, as capable and willing afforded an opportunity to present his over the place where the alien is to care for the juvenile’s well-being. or her views and assert his or her located. Such person must execute an agreement interest to the district director or (2) A determination to remove such a to care for the juvenile and to ensure the immigration judge before a deportable alien shall be based on one juvenile’s presence at all future determination is made as to the merits or more of the grounds of deportability proceedings before the Service or an of the request for relief. listed in section 237 of the Act based on immigration judge. (g) Voluntary departure. Each conduct committed after, or conduct or (4) In unusual and compelling juvenile, apprehended in the immediate a condition not disclosed to the Service circumstances and in the discretion of vicinity of the border, who resides prior to, the alien’s classification as an the district director or chief patrol agent, permanently in Mexico or Canada, shall S nonimmigrant under section a juvenile may be released to an adult, be informed, prior to presentation of the 101(a)(15)(S) of the Act, or for a Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10363 violation of, or failure to adhere to, the immigration officer not to be eligible for and Control Act of 1986 (Cuban/Haitian particular terms and conditions of status admission under that section or to be Adjustment). in S nonimmigrant classification. inadmissible to the United States under (c) Removal procedures. (1) A district one or more of the grounds of § 236.12 Eligibility. director who determines to remove an inadmissibility listed in section 212 of (a) General. An alien who is not a alien witness or informant in S the Act and which have not been lawful permanent resident is eligible to nonimmigrant classification shall notify previously waived by the Commissioner apply for benefits under the Family the Commissioner, the Assistant will be taken into custody. The district Unity Program if he or she establishes: Attorney General, Criminal Division, director having jurisdiction over the (1) That he or she entered the United and the relevant law enforcement port-of-entry shall follow the States before May 5, 1988 (in the case agency in writing to that effect. The notification procedures specified in of a relationship to a legalized alien Assistant Attorney General, Criminal paragraph (c)(1) of this section. A described in subsection (b)(2)(B) or Division, shall concur in or object to district director who has provided such (b)(2)(C) of section 301 of IMMACT 90), that decision. Unless the Assistant notice and who has been advised by the or as of December 1, 1988 (in the case Attorney General, Criminal Division, Commissioner that the Assistant of a relationship to a legalized alien objects within 7 days, he or she shall be Attorney General, Criminal Division, described in subsection (b)(2)(A) of deemed to have concurred in the has not objected shall remove the alien section 301 of IMMACT 90), and has decision. In the event of an objection by without further hearing. An alien may been continuously residing in the the Assistant Attorney General, not contest such removal, other than by United States since that date; and Criminal Division, the matter will be applying for withholding of removal. (2) That on May 5, 1988 (in the case expeditiously referred to the Deputy of a relationship to a legalized alien Attorney General for a final resolution. § 236.5 Fingerprints and photographs. described in subsection (b)(2)(B) or In no circumstances shall the alien or Every alien 14 years of age or older (b)(2)(C) of section 301 of IMMACT 90), the relevant law enforcement agency against whom proceedings based on or as of December 1, 1988 (in the case have a right of appeal from any decision deportability under section 237 of the of a relationship to a legalized alien to remove. Act are commenced under this part by described in subsection (b)(2)(A) of (2) A district director who has service of a notice to appear shall be section 301 of IMMACT 90), he or she provided notice as set forth in paragraph fingerprinted and photographed. Such was the spouse or unmarried child of a (c)(1) of this section and who has been fingerprints and photographs shall be legalized alien, and that he or she has advised by the Commissioner that the made available to Federal, State, and been eligible continuously since that Assistant Attorney General, Criminal local law enforcement agencies upon time for family-sponsored second Division, has not objected shall issue a request to the district director or chief preference immigrant status under Warrant of Removal. The alien shall patrol agent having jurisdiction over the section 203(a)(2) of the Act based on the immediately be arrested and taken into alien’s record. Any such alien, same relationship. custody by the district director initiating regardless of his or her age, shall be (b) Legalization application pending the removal. An alien classified under photographed and/or fingerprinted if as of May 5, 1988 or December 1, 1988. the provisions of section 101(a)(15)(S) of required by any immigration officer An alien whose legalization application the Act who is determined, pursuant to authorized to issue a notice to appear. was filed on or before May 5, 1988 (in a warrant issued by a district director, Every alien 14 years of age or older who the case of a relationship to a legalized to be deportable from the United States is found to be inadmissible to the alien described in subsection (b)(2)(B) or shall be removed from the United States United States and ordered removed by (b)(2)(C) of section 301 of IMMACT 90), to his or her country of nationality or an immigration judge shall be or as of December 1, 1988 (in the case last residence. The agency that fingerprinted, unless during the of a relationship to a legalized alien requested the alien’s presence in the preceding year he or she has been described in subsection (b)(2)(A) of United States shall ensure departure fingerprinted at an American consular section 301 of IMMACT 90), but not from the United States and so inform office. approved until after that date will be the district director in whose treated as having been a legalized alien jurisdiction the alien has last resided. §§ 236.6Ð236.9 [Reserved] as of May 5, 1988 (in the case of a The district director, if necessary, shall relationship to a legalized alien oversee the alien’s departure from the Subpart BÐFamily Unity Program described in subsection (b)(2)(B) or United States and, in any event, shall § 236.10 Description of program. (b)(2)(C) of section 301 of IMMACT 90), notify the Commissioner of the alien’s or as of December 1, 1988 (in the case departure. The family unity program implements of a relationship to a legalized alien (d) Withholding of removal. An alien the provisions of section 301 of the described in subsection (b)(2)(A) of classified pursuant to section Immigration Act of 1990, Public Law section 301 of IMMACT 90), for 101(a)(15)(S) of the Act who applies for 101–649. This Act is referred to in this purposes of the Family Unity Program. withholding of removal shall have 10 subpart as ‘‘IMMACT 90’’. § 236.13 Ineligible aliens. days from the date the Warrant of § 236.11 Definitions. Removal is served upon the alien to file The following categories of aliens are an application for such relief with the In this subpart, the term: ineligible for benefits under the Family district director initiating the removal Eligible immigrant means a qualified Unity Program: order. The procedures contained in immigrant who is the spouse or (a) An alien who is deportable under §§ 208.2 and 208.16 of this chapter shall unmarried child of a legalized alien. any paragraph in section 237(a) of the apply to such an alien who applies for Legalized alien means an alien who: Act, except paragraphs (1)(A), (1)(B), withholding of removal. (1) Is a temporary or permanent (1)(C), and (3)(A); provided that an alien (e) Inadmissibility. An alien who resident under section 210 or 245A of who is deportable under section applies for admission under the the Act; or 237(a)(1)(A) of such Act is also provisions of section 101(a)(15)(S) of the (2) Is a permanent resident under ineligible for benefits under the Family Act who is determined by an section 202 of the Immigration Reform Unity Program if deportability is based 10364 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations upon a ground of inadmissibility the provisions of section 240B of the Act continuing eligibility since the date of described in section 212(a)(2) or (3) of and 8 CFR part 240. the prior approval. the Act; (b) Children of legalized aliens. § 236.16 Travel outside the United States. (b) An alien who has been convicted Children of legalized aliens residing in of a felony or three or more the United States, who were born during An alien granted Family Unity misdemeanors in the United States; or an authorized absence from the United Program benefits who intends to travel (c) An alien described in section States of mothers who are currently outside the United States temporarily 241(b)(3)(B) of the Act. residing in the United States under must apply for advance authorization voluntary departure pursuant to the using Form I–131, Application for § 236.14 Filing. Family Unity Program, may be granted Travel Document. The authority to grant (a) General. An application for voluntary departure under section 301 an application for advance authorization voluntary departure under the Family of IMMACT 90 for a period of 2 years. for an alien granted Family Unity Unity Program must be filed at the (c) Duration of voluntary departure. Program benefits rests solely with the service center having jurisdiction over An alien whose application for benefits district director. An alien who is the alien’s place of residence. A Form I– under the Family Unity Program is granted advance authorization and approved will receive voluntary 817, Application for Voluntary returns to the United States in departure for 2 years, commencing with Departure under the Family Unity accordance with such authorization, the date of approval of the application. Program, must be filed with the correct and who is found not to be inadmissible Voluntary departure under this section fee required in § 103.7(b)(1) of this under section 212(a)(2) or (3) of the Act, shall be considered effective from the chapter and the required supporting shall be inspected and admitted in the date on which the application was documentation. A separate application same immigration status as the alien properly filed. with appropriate fee and documentation had at the time of departure, and shall (d) Employment authorization. An be provided the remainder of the must be filed for each person claiming alien granted benefits under the Family eligibility. voluntary departure period previously Unity Program is authorized to be granted under the Family Unity (b) Decision. The service center employed in the United States and may Program. director has sole jurisdiction to apply for an employment authorization adjudicate an application for benefits document on Form I–765, Application § 236.17 Eligibility for Federal financial under the Family Unity Program. The for Employment Authorization. The assistance programs. director will provide the applicant with application may be filed concurrently An alien granted Family Unity specific reasons for any decision to deny with Form I–817. The application must Program benefits based on a relationship an application. Denial of an application be accompanied by the correct fee to a legalized alien as defined in may not be appealed. An applicant who required by § 103.7(b)(1) of this chapter. § 236.11 is ineligible for public welfare believes that the grounds for denial have The validity period of the employment assistance in the same manner and for been overcome may submit another authorization will coincide with the the same period as the legalized alien application with the appropriate fee and period of voluntary departure. who is ineligible for such assistance documentation. (e) Extension of voluntary departure. under section 245A(h) or 210(f) of the (c) Referral of denied cases for An application for an extension of Act, respectively. consideration of issuance of notice to voluntary departure under the Family appear. If an application is denied, the Unity Program must be filed by the alien § 236. 18 Termination of Family Unity case will be referred to the district on Form I–817 along with the correct fee Program benefits. director with jurisdiction over the required in § 103.7(b)(1) of this chapter (a) Grounds for termination. The alien’s place of residence for and the required supporting Service may terminate benefits under consideration of whether to issue a documentation. The submission of a the Family Unity Program whenever the notice to appear. After an initial denial, copy of the previous approval notice necessity for the termination comes to an applicant’s case will not be referred will assist in shortening the processing the attention of the Service. Such for issuance of a notice to appear until time. An extension may be granted if the grounds will exist in situations 90 days from the date of the initial alien continues to be eligible for benefits including, but not limited to, those in denial, to allow the alien the under the Family Unity Program. which: opportunity to file a new Form I–817 However, an extension may not be (1) A determination is made that application in order to attempt to approved if the legalized alien is a Family Unity Program benefits were overcome the basis of the denial. lawful permanent resident, and a acquired as the result of fraud or willful However, if the applicant is found not petition for family-sponsored immigrant misrepresentation of a material fact; to be eligible for benefits under status has not been filed in behalf of the (2) The beneficiary commits an act or § 236.13(b), the Service reserves the applicant. In such case the Service will acts which render him or her right to issue a notice to appear at any notify the alien of the reason for the inadmissible as an immigrant or who time after the initial denial. denial and afford him or her the are ineligible for benefits under the opportunity to file another Form I–817 Family Unity Program; § 236.15 Voluntary departure and eligibility once the petition, Form I–130, has been (3) The legalized alien upon whose for employment. filed in behalf of him or her. No status benefits under the Family Unity (a) Authority. Voluntary departure charging document will be issued for a Program were based loses his or her under this section implements the period of 90 days. legalized status; provisions of section 301 of IMMACT (f) Supporting documentation for (4) The beneficiary is the subject of a 90, and authority to grant voluntary extension application. Supporting final order of exclusion, deportation, or departure under the family unity documentation need not include removal issued subsequent to the grant program derives solely from that documentation provided with the of Family Unity benefits unless such section. Voluntary departure under the previous application(s). The extension final order is based on entry without family unity program shall be governed application need only include changes inspection; violation of status; or failure solely by this section, notwithstanding to previous applications and evidence of to comply with section 265 of the Act; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10365 or inadmissibility at the time of entry Deportation Order (Notice of Intent), if (iv) The Service shall provide the other than inadmissibility pursuant to the officer is satisfied that there is alien with a list of available free legal section 212(a)(2) or 212(a)(3) of the Act, sufficient evidence, based upon services programs qualified under 8 CFR regardless of whether the facts giving questioning of the alien by an part 3 and organizations recognized rise to such ground occurred before or immigration officer and upon any other pursuant to 8 CFR part 292, located after the benefits were granted; or evidence obtained, to support a finding within the district or sector where the (5) A qualifying relationship to a that the individual: Notice of Intent is issued. legalized alien no longer exists. (i) Is an alien; (v) The Service must either provide (b) Notice procedure. Notice of intent (ii) Has not been lawfully admitted for the alien with a written translation of to terminate and of the grounds thereof permanent residence, or has conditional the Notice of Intent or explain the shall be served pursuant to the permanent resident status under section contents of the Notice of Intent to the provisions of § 103.5a of this chapter. 216 of the Act; alien in the alien’s native language or in The alien shall be given 30 days to (iii) Has been convicted (as defined in a language that the alien understands. respond to the notice and may submit section 101(a)(48) of the Act and as (c) Alien’s response. (1) Time for to the Service additional evidence in demonstrated by any of the documents response. The alien will have 10 rebuttal. Any final decision of or records listed in § 3.41 of this calendar days from service of the Notice termination shall also be served chapter) of an aggravated felony and of Intent, or 13 calendar days if service pursuant to the provisions of § 103.5a of such conviction has become final; and is by mail, to file a response to the this chapter. Nothing in this section (iv) Is deportable under section Notice of Intent. In the response, the shall preclude the Service from 237(a)(2)(A)(iii) of the Act, including an alien may: designate his or her choice of commencing exclusion or deportation alien who has neither been admitted nor country for removal; submit a written proceedings prior to termination of paroled, but who is conclusively response rebutting the allegations Family Unity Program benefits. presumed deportable under section supporting the charge and/or requesting (c) Effect of termination. Termination 237(a)(2)(A)(iii) by operation of section the opportunity to review the of benefits under the Family Unity 238(c) of the Act (‘‘Presumption of Government’s evidence; and/or request Program, other than as a result of a final Deportability’’). in writing an extension of time for order of removal, shall render the alien (2) Notice. (i) Removal proceedings response, stating the specific reasons amenable to removal proceedings under under section 238(b) of the Act shall why such an extension is necessary. section 240 of the Act. If benefits are commence upon personal service of the Alternatively, the alien may, in writing, terminated, the period of voluntary Notice of Intent upon the alien, as choose to accept immediate issuance of departure under this section is also prescribed by §§ 103.5a(a)(2) and a Final Administrative Removal Order. terminated. 103.5a(c)(2) of this chapter. The Notice The deciding Service officer may extend of Intent shall set forth the preliminary the time for response for good cause PART 237Ð[REMOVED AND determinations and inform the alien of shown. A request for extension of time RESERVED] the Service’s intention to issue a Form for response will not automatically 100. Part 237 is removed and I–851A, Final Administrative Removal extend the period for the response. The reserved. Order, without a hearing before an alien will be permitted to file a response 101. Part 238 is added to read as immigration judge. This Notice shall outside the prescribed period only if the follows: constitute the charging document. The deciding Service officer permits it. The Notice of Intent shall include allegations alien must send the response to the PART 238ÐEXPEDITED REMOVAL OF of fact and conclusions of law. It shall deciding Service officer at the address AGGRAVATED FELONS advise that the alien: has the privilege provided in the Notice of Intent. of being represented, at no expense to (2) Nature of rebuttal or request to Sec. the Government, by counsel of the review evidence. (i) If an alien chooses 238.1 Proceedings under section 238(b) of the Act. alien’s choosing, as long as counsel is to rebut the allegations contained in the authorized to practice in deportation Notice of Intent, the alien’s written Authority: 8 U.S.C. 1228; 8 CFR part 2. proceedings; may inspect the evidence response must indicate which finding(s) § 238.1 Proceedings under section 238(b) supporting the Notice of Intent; and may are being challenged and should be of the Act. rebut the charges within 10 calendar accompanied by affidavit(s), (a) Definitions. As used in this part: days after service of such Notice (or 13 documentary information, or other Deciding Service officer means a calendar days if service of the Notice specific evidence supporting the district director, chief patrol agent, or was by mail). challenge. another immigration officer designated (ii) The Notice of Intent also shall (ii) If an alien’s written response by a district director or chief patrol advise the alien that he or she may requests the opportunity to review the agent, who is not the same person as the designate in writing, within the rebuttal Government’s evidence, the Service issuing Service officer. period, the country to which he or she shall serve the alien with a copy of the Issuing Service officer means any chooses to be deported in accordance evidence in the record of proceeding Service officer listed in § 239.1 of this with section 241 of the Act, in the event upon which the Service is relying to chapter as authorized to issue notices to that a Final Administrative Removal support the charge. The alien may, appear. Order is issued, and that the Service within 10 calendar days following (b) Preliminary consideration and will honor such designation only to the service of the Government’s evidence Notice of Intent to Issue a Final extent permitted under the terms, (13 calendar days if service is by mail), Administrative Deportation Order; limitations, and conditions of section furnish a final response in accordance commencement of proceedings.—(1) 241 of the Act. with paragraph (c)(1) of this section. If Basis of Service charge. An issuing (iii) The Service must determine that the alien’s final response is a rebuttal of Service officer shall cause to be served the person served with the Notice of the allegations, such a final response upon an alien a Form I–851, Notice of Intent is the person named on the should be accompanied by affidavit(s), Intent to Issue a Final Administrative notice. documentary information, or other 10366 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations specific evidence supporting the Removal Order that states the reasons (h) Record of proceeding. The Service challenge. for the decision of deportability. shall maintain a record of proceeding (d) Determination by deciding Service (iii) Conversion to proceedings under for judicial review of the Final officer. (1) No response submitted or section 240 of the Act. If the deciding Administrative Removal Order sought concession of deportability. If the Service officer finds that the alien is not by any petition for review. The record deciding Service officer does not receive amenable to removal under section 238 of proceeding shall include, but not a timely response and the evidence in of the Act, the deciding Service officer necessarily be limited to: the charging the record of proceeding establishes shall terminate the expedited document (Notice of Intent); the Final deportability by clear, convincing, and proceedings under section 238 of the Administrative Removal Order unequivocal evidence, or if the alien Act and shall, where appropriate, cause (including any supplemental concedes deportability, then the to be issued a notice to appear for the memorandum of decision); the alien’s deciding Service officer shall issue and purpose of initiating removal response, if any; all evidence in support cause to be served upon the alien a proceedings before an immigration of the charge; and any admissible Final Administrative Removal Order judge under section 240 of the Act. evidence, briefs, or documents that states the reasons for the (3) Termination of proceedings by submitted by either party respecting deportation decision. The alien may, in deciding Service officer. Only the deportability. The executed duplicate of writing, waive the 14-day waiting deciding Service officer may terminate the Notice of Intent in the record of period before execution of the final proceedings under section 238 of the proceedings shall be retained as order of removal provided in a Act, in accordance with this section. evidence that the individual upon paragraph (f) of this section. (e) Proceedings commenced under whom the notice for the proceeding was (2) Response submitted. (i) section 240 of the Act. In any served was, in fact, the alien named in Insufficient rebuttal; no genuine issue of proceeding commenced under section the notice. material fact. If the alien timely submits 240 of the Act which is based on 102. Part 239 is added to read as a rebuttal to the allegations, but the deportability under section 237 of the follows: deciding Service officer finds that Act, if it appears that the respondent deportability is established by clear, alien is subject to removal pursuant to PART 239ÐINITIATION OF REMOVAL convincing, and unequivocal evidence section 238 of the Act, the immigration PROCEEDINGS in the record of proceeding, the judge may, upon the Service’s request, deciding Service officer shall issue and Sec. terminate the case and, upon such cause to be served upon the alien a 239.1 Notice to appear. termination, the Service may commence Final Administrative Removal Order 239.2 Cancellation of notice to appear. 239.3 Effect of filing notice to appear. that states the reasons for the decision administrative proceedings under of deportability. section 238 of the Act. However, in the Authority: 8 U.S.C. 1103, 1221, 1229; 8 (ii) Additional evidence required. (A) absence of any such request, the CFR part 2. immigration judge shall complete the If the deciding Service officer finds that § 239.1 Notice to appear. the record of proceeding, including the proceeding commenced under section 240 of the Act. (a) Commencement. Every removal alien’s timely rebuttal, raises a genuine proceeding conducted under section issue of material fact regarding the (f) Executing final removal order of deciding Service officer. (1) Time of 240 of the Act to determine the preliminary findings, the deciding deportability or inadmissibility of an Service officer may either obtain execution. Upon the issuance of a Final Administrative Removal Order, the alien is commenced by the filing of a additional evidence from any source, notice to appear with the Immigration including the alien, or cause to be Service shall issue a Warrant of Removal in accordance with § 241.2 of Court. Any immigration officer issued a notice to appear to initiate performing an inspection of an arriving removal proceedings under section 240 this chapter; such warrant shall be executed no sooner than 14 calendar alien at a port-of-entry may issue a of the Act. The deciding Service officer notice to appear to such an alien. In may also obtain additional evidence days after the date the Final addition, the following officers, or from any source, including the alien, if Administrative Removal Order is officers acting in such capacity, may the deciding Service officer deems that issued, unless the alien knowingly, issue a notice to appear: such additional evidence may aid the voluntarily, and in writing waives the 14-day period. (1) District directors (except foreign); officer in the rendering of a decision. (2) Deputy district directors (except (B) If the deciding Service officer (2) Country to which alien is to be foreign); removed. The deciding Service officer considers additional evidence from a (3) Assistant district directors for source other than the alien, that shall designate the country of removal investigations; evidence shall be made a part of the in the manner prescribed by section 241 (4) Deputy assistant district directors record of proceeding, and shall be of the Act. for investigations; provided to the alien. If the alien elects (g) Arrest and detention. At the time (5) Assistant district directors for to submit a response to such additional of issuance of a Notice of Intent or at deportation; evidence, such response must be filed any time thereafter and up to the time (6) Deputy assistant district directors with the Service within 10 calendar the alien becomes the subject of a for deportation; days of service of the additional Warrant of Removal, the alien may be (7) Assistant district directors for evidence (or 13 calendar days if service arrested and taken into custody under examinations; is by mail). If the deciding Service the authority of a Warrant of Arrest (8) Deputy assistant district directors officer finds, after considering all issued by an officer listed in for examinations; additional evidence, that deportability § 287.5(e)(2) of this chapter. The (9) Officers in charge (except foreign); is established by clear, convincing, and decision of the Service concerning (10) Assistant officers in charge unequivocal evidence in the record of custody or bond shall not be (except foreign); proceeding, the deciding Service officer administratively appealable during (11) Chief patrol agents; shall issue and cause to be served upon proceedings initiated under section 238 (12) Deputy chief patrol agents; the alien a Final Administrative of the Act and this part. (13) Associate chief patrol agents; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10367

(14) Assistant chief patrol agents; for remand of the matter to district Subpart BÐCancellation of Removal (15) Patrol agents in charge; jurisdiction on the ground that the 240.20 Cancellation of removal and (16) The Assistant Commissioner, foreign relations of the United States are adjustment of status under section 240A Investigations; involved and require further of the Act. (17) Service center directors; consideration. Remand of the matter 240.21–240.24 [Reserved] (18) Deputy center directors; shall be without prejudice to the alien Subpart CÐVoluntary Departure (19) Assistant center directors for or the Service. 240.25 Voluntary departure—authority of examinations; (e) Warrant of arrest. When a notice the Service. (20) Supervisory asylum officers; to appear is canceled or proceedings are 240.26 Voluntary departure—authority of (21) Institutional Hearing Program terminated under this section any the Executive Office for Immigration directors; or outstanding warrant of arrest is Review. (22) Deputy Institutional Hearing canceled. 240.27–240.29 [Reserved] Program directors. (f) Termination of removal Subpart DÐExclusion of Aliens (for (b) Service of notice to appear. proceedings by immigration judge. An proceedings commenced prior to April 1, Service of the notice to appear shall be immigration judge may terminate 1997) in accordance with section 239 of the removal proceedings to permit the alien 240.30 Proceedings prior to April 1, 1997. Act. to proceed to a final hearing on a 240.31 Authority of immigration judges. pending application or petition for § 239.2 Cancellation of notice to appear. 240.32 Hearing. naturalization when the alien has 240.33 Applications for asylum or (a) Any officer authorized by established prima facie eligibility for withholding of deportation. § 239.1(a) to issue a notice to appear naturalization and the matter involves 240.34 Renewal of application for may cancel such notice prior to exceptionally appealing or adjustment of status under section 245 of jurisdiction vesting with the humanitarian factors; in every other the Act. immigration judge pursuant to § 3.14 of case, the removal hearing shall be 240.35 Decision of the immigration judge; this chapter provided the officer is notice to the applicant. completed as promptly as possible 240.36 Finality of order. satisfied that: notwithstanding the pendency of an (1) The respondent is a national of the 240.37 Appeals. application for naturalization during 240.38 Fingerprinting of excluded aliens. United States; any state of the proceedings. 240.39 [Reserved] (2) The respondent is not deportable or inadmissible under immigration § 239.3 Effect of filing notice to appear. Subpart EÐProceedings to determine laws; The filing of a notice to appear shall deportability of aliens in the United States: (3) The respondent is deceased; Hearing and Appeal (for proceedings have no effect in determining periods of commenced prior to April 1, 1997) (4) The respondent is not in the unlawful presence as defined in section United States; 212(a)(9)(B) of the Act. 240.40 Proceedings commenced prior to (5) The notice was issued for the April 1, 1997. respondent’s failure to file a timely §§ 240.1±240.20 [Redesignated as 240.41 Immigration judges. §§ 244.3±244.22] 240.42 Representation by counsel. petition as required by section 216(c) of 240.43 Incompetent respondents. the Act, but his or her failure to file a 103. Sections 240.1 through 240.20 240.44 Interpreter. timely petition was excused in are redesignated as §§ 244.3 through 240.45 Postponement and adjournment of accordance with section 216(d)(2)(B) of 244.22. hearing. the Act; 104. Part 240 is revised to read as 240.46 Evidence. (6) The notice to appear was follows: 240.47 Contents of record. improvidently issued, or 240.48 Hearing. PART 240ÐPROCEEDINGS TO (7) Circumstances of the case have 240.49 Ancillary matters, applications. DETERMINE REMOVABILITY OF 240.50 Decision of the immigration judge. changed after the notice to appear was ALIENS IN THE UNITED STATES 240.51 Notice of decision. issued to such an extent that 240.52 Finality of order. continuation is no longer in the best Subpart AÐRemoval Proceedings 240.53 Appeals. interest of the government. Sec. 240.54 [Reserved] (b) A notice to appear issued pursuant 240.1 Immigration judges. Subpart FÐSuspension of Deportation and to section 235(b)(3) of the Act may be 240.2 Service counsel. Voluntary Departure (for proceedings canceled under provisions in 240.3 Representation by counsel. commenced prior to April 1, 1997) paragraphs (a)(2) and (a)(6) of this 240.4 Incompetent respondents. 240.5 Interpreter. 240.55 Proceedings commenced prior to section only by the issuing officer, April 1, 1997. unless it is impracticable for the issuing 240.6 Postponement and adjournment of hearing. 240.56 Application. officer to cancel the notice. 240.57 Extension of time to depart. (c) Motion to dismiss. After 240.7 Evidence in removal proceedings under section 240 of the Act. commencement of proceedings pursuant Subpart GÐCivil Penalties for Failure to 240.8 Burdens of proof in removal Depart [Reserved] to § 3.14 of this chapter, Service proceedings. Authority: 8 U.S.C. 1103; 1182, 1186a, counsel, or any officer enumerated in 240.9 Contents of record. 1224, 1225, 1226, 1227, 1251, 1252 note, paragraph (a) of this section may move 240.10 Hearing. 1252a, 1252b, 1362; 8 CFR part 2. for dismissal of the matter on the 240.11 Ancillary matters, applications. grounds set out under paragraph (a) of 240.12 Decision of the immigration judge. Subpart AÐRemoval Proceedings this section. Dismissal of the matter 240.13 Notice of decision. shall be without prejudice to the alien 240.14 Finality of order. § 240.1 Immigration judges. 240.15 Appeals. or the Service. 240.16 Application of new procedures or (a) Authority. In any removal (d) Motion for remand. After termination of proceedings in old proceeding pursuant to section 240 of commencement of the hearing, Service proceedings pursuant to section 309(c) of the Act, the immigration judge shall counsel, or any officer enumerated in Public Law 104–208. have the authority to: determine paragraph (a) of this section may move 240.17–240.19 [Reserved] removability pursuant to section 10368 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

240(a)(1) of the Act; to make decisions, proceedings under this part. The Service § 240.7 Evidence in removal proceedings including orders of removal as provided counsel is authorized to appeal from a under section 240 of the Act. by section 240(c)(1)(A) of the Act; to decision of the immigration judge (a) Use of prior statements. The determine applications under sections pursuant to § 3.38 of this chapter and to immigration judge may receive in 208, 212(a)(2)(F), 212(a)(6)(F)(ii), move for reopening or reconsideration evidence any oral or written statement 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), pursuant to § 3.23 of this chapter. that is material and relevant to any issue 212(g), 212(h), 212(i), 212(k), in the case previously made by the (b) Assignment. In a removal 237(a)(1)(E)(iii), 237(a)(1)(H), respondent or any other person during proceeding, the Service shall assign an 237(a)(3)(C)(ii), 240A(a) and (b), 240B, any investigation, examination, hearing, 245, and 249 of the Act; to order attorney to each case within the or trial. withholding of removal pursuant to provisions of § 240.10(d), and to each (b) Testimony. Testimony of witnesses section 241(b)(3) of the Act; and to take case in which an unrepresented appearing at the hearing shall be under any other action consistent with respondent is incompetent or is under oath or affirmation administered by the applicable law and regulations as may 18 years of age, and is not accompanied immigration judge. be appropriate. In determining cases by a guardian, relative, or friend. In a (c) Depositions. The immigration referred for further inquiry, immigration case in which the removal proceeding judge may order the taking of judges shall have the powers and would result in an order of removal, the depositions pursuant to § 3.35 of this authority conferred upon them by the Service shall assign an attorney to each chapter. Act and this chapter. Subject to any case in which a respondent’s nationality specific limitation prescribed by the Act is in issue. A Service attorney shall be § 240.8 Burdens of proof in removal and this chapter, immigration judges assigned in every case in which the proceedings. shall also exercise the discretion and Commissioner approves the submission (a) Deportable aliens. A respondent authority conferred upon the Attorney of non-record information under charged with deportability shall be General by the Act as is appropriate and § 240.11(a)(3). In his or her discretion, found to be removable if the Service necessary for the disposition of such whenever he or she deems such proves by clear and convincing cases. An immigration judge may certify assignment necessary or advantageous, evidence that the respondent is his or her decision in any case under the General Counsel may assign a deportable as charged. (b) Arriving aliens. In proceedings section 240 of the Act to the Board of Service attorney to any other case at any commenced upon a respondent’s arrival Immigration Appeals when it involves stage of the proceeding. an unusually complex or novel question in the Untied States or after the of law or fact. Nothing contained in this § 240.3 Representation by counsel. revocation or expiration of parole, the part shall be construed to diminish the respondent must prove that he or she is The respondent may be represented at authority conferred on immigration clearly and beyond a doubt entitled to the hearing by an attorney or other judges under sections 101(b)(4) and 103 be admitted to the United States and is of the Act. representative qualified under 8 CFR not inadmissible as charged. (b) Withdrawal and substitution of part 292. (c) Aliens present in the United States without being admitted or paroled. In immigration judges. The immigration § 240.4 Incompetent respondents. judge assigned to conduct the hearing the case of a respondent charged as shall at any time withdraw if he or she When it is impracticable for the being in the United States without being deems himself or herself disqualified. If respondent to be present at the hearing admitted or paroled, the Service must an immigration judge becomes because of mental incompetency, the first establish the alienage of the unavailable to complete his or her attorney, legal representative, legal respondent. Once alienage has been duties, another immigration judge may guardian, near relative, or friend who established, unless the respondent be assigned to complete the case. The was served with a copy of the notice to demonstrates by clear and convincing new immigration judge shall familiarize appear shall be permitted to appear on evidence that he or she is lawfully in himself or herself with the record in the behalf of the respondent. If such a the United States pursuant to a prior case and shall state for the record that person cannot reasonably be found or admission, the respondent must prove he or she has done so. fails or refuses to appear, the custodian that he or she is clearly and beyond a (c) Conduct of hearing. The of the respondent shall be requested to doubt entitled to be admitted to the immigration judge shall receive and appear on behalf of the respondent. United States and is not inadmissible as consider material and relevant evidence, charged. rule upon objections, and otherwise § 240.5 Interpreter. (d) Relief from removal. The regulate the course of the hearing. Any person acting as an interpreter in respondent shall have the burden of establishing that he or she is eligible for a hearing before an immigration judge § 240.2 Service counsel. any requested benefit or privilege and under this part shall be sworn to (a) Authority. Service counsel shall that it should be granted in the exercise interpret and translate accurately, present on behalf of the government of discretion. If the evidence indicates unless the interpreter is an employee of evidence material to the issues of that one or more of the grounds for the United States Government, in which deportability or inadmissibility and any mandatory denial of the application for other issues that may require event no such oath shall be required. relief may apply, the alien shall have disposition by the immigration judge. § 240.6 Postponement and adjournment of the burden of proving by a The duties of the Service counsel hearing. preponderance of the evidence that such include, but are not limited to, the grounds do not apply. presentation of evidence and the After the commencement of the interrogation, examination, and cross- hearing, the immigration judge may § 240.9 Contents of record. examination of the respondent or other grant a reasonable adjournment either at The hearing before the immigration witnesses. Nothing contained in this his or her own instance or, for good judge, including the testimony, exhibits, subpart diminishes the authority of an cause shown, upon application by the applications, proffers, and requests, the immigration judge to conduct respondent or the Service. immigration judge’s decision, and all Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10369 written orders, motions, appeals, briefs, respondent admits the factual removed, the country of removal will in and other papers filed in the allegations and admits his or her the first instance be directed pursuant to proceedings shall constitute the record removability under the charges and the section 241(b) of the Act to the country in the case. The hearing shall be immigration judge is satisfied that no designated by the alien, unless section recorded verbatim except for statements issues of law or fact remain, the 241(b)(2)(C) of the Act applies, and shall made off the record with the permission immigration judge may determine that afford him or her an opportunity then of the immigration judge. In his or her removability as charged has been and there to make such designation. The discretion, the immigration judge may established by the admissions of the immigration judge shall then specify exclude from the record any arguments respondent. The immigration judge and state for the record the country, or made in connection with motions, shall not accept an admission of countries in the alternative, to which applications, requests, or objections, but removability from an unrepresented the alien’s removal will be directed in such event the person affected may respondent who is incompetent or pursuant to section 241(b) of the Act if submit a brief. under the age of 18 and is not the country of his or her designation accompanied by an attorney or legal will not accept him or her into its § 240.10 Hearing. representative, a near relative, legal territory, or fails to furnish timely notice (a) Opening. In a removal proceeding, guardian, or friend; nor from an officer of acceptance, or if the alien declines to the immigration judge shall: of an institution in which a respondent designate a country. (1) Advise the respondent of his or is an inmate or patient. When, pursuant (g) In the event that the Service is her right to representation, at no to this paragraph, the immigration judge unable to remove the alien to the expense to the government, by counsel does not accept an admission of specified or alternative country or of his or her own choice authorized to removability, he or she shall direct a countries, the Service may remove the practice in the proceedings and require hearing on the issues. alien to any other country as permitted the respondent to state then and there (d) Issues of removability. When by section 241(b) of the Act. whether he or she desires removability is not determined under representation; the provisions of paragraph (c) of this § 240.11 Ancillary matters, applications. (2) Advise the respondent of the section, the immigration judge shall (a) Creation of the status of an alien availability of free legal services request the assignment of an Service lawfully admitted for permanent provided by organizations and attorneys counsel, and shall receive evidence as to residence. (1) In a removal proceeding, qualified under 8 CFR part 3 and any unresolved issues, except that no an alien may apply to the immigration organizations recognized pursuant to further evidence need be received as to judge for cancellation of removal under § 292.2 of this chapter, located in the any facts admitted during the pleading. section 240A of the Act, adjustment of district where the removal hearing is The alien shall provide a court certified status under section 245 of the Act, being held; copy of a Judicial Recommendation adjustment of status under section 1 of (3) Ascertain that the respondent has Against Deportation (JRAD) to the the Act of November 2, 1966 (as received a list of such programs, and a immigration judge when such modified by section 606 of Public Law copy of appeal rights; recommendation will be the basis of 104–132) or under section 101 or 104 of (4) Advise the respondent that he or denying any charge(s) brought by the the Act of October 28, 1977, or for the she will have a reasonable opportunity Service in the proceedings against the creation of a record of lawful admission to examine and object to the evidence alien. No JRAD is effective against a for permanent residence under section against him or her, to present evidence charge of deportability under former 249 of the Act. The application shall be in his or her own behalf and to cross- section 241(a)(11) of the Act or if the subject to the requirements of § 240.20, examine witnesses presented by the JRAD was granted on or after November and 8 CFR parts 245 and 249. The government (but the respondent shall 29, 1990. approval of any application made to the not be entitled to examine such national (e) Additional charges in removal immigration judge under section 245 of security information as the government hearings. At any time during the the Act by an alien spouse (as defined may proffer in opposition to the proceeding, additional or substituted in section 216(g)(1) of the Act) or by an respondent’s admission to the United charges of inadmissibility and/or alien entrepreneur (as defined in section States or to an application by the deportability and/or factual allegations 216A(f)(1) of the Act) shall result in the respondent for discretionary relief); may be lodged by the Service in writing. alien’s obtaining the status of lawful (5) Place the respondent under oath; The alien in removal proceedings shall permanent resident on a conditional (6) Read the factual allegations and be served with a copy of these basis in accordance with the provisions the charges in the notice to appear to the additional charges and allegations. The of section 216 or 216A of the Act, respondent and explain them in non- immigration judge shall read the whichever is applicable. However, the technical language; and additional factual allegations and Petition to Remove the Conditions on (7) Enter the notice to appear as an charges to the alien and explain them to Residence required by section 216(c) of exhibit in the Record of Proceeding. him or her. The immigration judge shall the Act, or the Petition by Entrepreneur (b) Public access to hearings. Removal advise the alien, if he or she is not to Remove Conditions required by hearings shall be open to the public, represented by counsel, that the alien section 216A(c) of the Act shall be made except that the immigration judge may, may be so represented, and that he or to the director in accordance with 8 CFR in his or her discretion, close she may be given a reasonable part 216. proceedings as provided in § 3.27 of this continuance to respond to the (2) In conjunction with any chapter. additional factual allegations and application for creation of status of an (c) Pleading by respondent. The charges. Thereafter, the provision of alien lawfully admitted for permanent immigration judge shall require the § 240.6(b) relating to pleading shall residence made to an immigration respondent to plead to the notice to apply to the additional factual judge, if the alien is inadmissible under appear by stating whether he or she allegations and charges. any provision of section 212(a) of the admits or denies the factual allegations (f) Country of removal. The Act, and believes that he or she meets and his or her removability under the immigration judge shall notify the alien the eligibility requirements for a waiver charges contained therein. If the that if he or she is finally ordered of the ground of inadmissibility, he or 10370 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations she may apply to the immigration judge § 208.4(c) of this chapter. Upon receipt opposing evidence. A decision based in for such waiver. The immigration judge of an application that has not been whole or in part on such classified shall inform the alien of his or her referred by an asylum officer, the information shall state whether such apparent eligibility to apply for any of Immigration Court shall forward a copy information is material to the decision. the benefits enumerated in this chapter to the Department of State pursuant to (4) The decision of an immigration and shall afford the alien an opportunity § 208.11 of this chapter and shall judge to grant or deny asylum or to make application during the hearing. calendar the case for a hearing. The withholding of removal shall be (3) In exercising discretionary power reply, if any, from the Department of communicated to the alien and to the when considering an application for State, unless classified under the Service counsel. An adverse decision status as a permanent resident under applicable Executive Order, shall be shall state why asylum or withholding this chapter, the immigration judge may given to both the alien and to the of removal was denied. consider and base the decision on Service counsel representing the (d) Application for relief under information not contained in the record government. sections 237(a)(1)(H) and and not made available for inspection (3) Applications for asylum and 237(a)(1)(E)(iii) of the Act. The by the alien, provided the withholding of removal so filed will be respondent may apply to the Commissioner has determined that such decided by the immigration judge immigration judge for relief from information is relevant and is classified pursuant to the requirements and removal under sections 237(a)(1)(H) and under the applicable Executive Order as standards established in 8 CFR part 208 237(a)(1)(E)(iii) of the Act. requiring protection from unauthorized of this chapter after an evidentiary (e) General. An application under this disclosure in the interest of national hearing to resolve factual issues in section shall be made only during the security. Whenever the immigration dispute. An evidentiary hearing hearing and shall not be held to judge believes that he or she can do so extending beyond issues related to the constitute a concession of alienage or while safeguarding both the information basis for a mandatory denial of the deportability in any case in which the and its source, the immigration judge application pursuant to § 208.14 or respondent does not admit his or her should inform the alien of the general § 208.16 of this chapter is not necessary alienage or deportability. However, nature of the information in order that once the immigration judge has nothing in this section shall prohibit the the alien may have an opportunity to determined that such a denial is Service from using information supplied offer opposing evidence. A decision required. in an application for asylum or based in whole or in part on such (i) Evidentiary hearings on withholding of deportation or removal classified information shall state that applications for asylum or withholding submitted to the Service on or after the information is material to the of removal will be open to the public January 4, 1995, as the basis for issuance decision. unless the alien expressly requests that of a charging document or to establish (b) Voluntary departure. The alien the hearing be closed pursuant to § 3.27 alienage or deportability in a case may apply to the immigration judge for of this chapter. The immigration judge referred to an immigration judge under voluntary departure in lieu of removal shall inquire whether the alien requests § 208.14(b) of this chapter. The alien pursuant to section 240B of the Act and such closure. shall have the burden of establishing subpart C of this part. (ii) Nothing in this section is intended that he or she is eligible for any (c) Applications for asylum and to limit the authority of the immigration requested benefit or privilege and that it withholding of removal. (1) If the alien judge to properly control the scope of should be granted in the exercise of expresses fear of persecution or harm any evidentiary hearing. discretion. Nothing contained in this upon return to any of the countries to (iii) During the removal hearing, the section is intended to foreclose the which the alien might be removed alien shall be examined under oath on respondent from applying for any pursuant to § 240.10(f), and the alien his or her application and may present benefit or privilege that he or she has not previously filed an application evidence and witnesses in his or her believes himself or herself eligible to for asylum or withholding of removal own behalf. The alien has the burden of receive in proceedings under this part. that has been referred to the establishing that he or she is a refugee Nothing in this section is intended to immigration judge by an asylum officer as defined in section 101(a)(42) of the limit the Attorney General’s authority to in accordance with § 208.14 of this Act pursuant to the standards set forth remove an alien to any country chapter, the immigration judge shall: in § 208.13 of this chapter. permitted by section 241(b) of the Act. (i) Advise the alien that he or she may (iv) Service counsel may call (f) Fees. The alien shall not be apply for asylum in the United States or witnesses and present evidence for the required to pay a fee on more than one withholding of removal to those record, including information classified application within paragraphs (a) and countries; under the applicable Executive Order, (c) of this section, provided that the (ii) Make available the appropriate provided the immigration judge or the minimum fee imposed when more than application forms; and Board has determined that such one application is made shall be (iii) Advise the alien of the privilege information is relevant to the hearing. determined by the cost of the of being represented by counsel at no When the immigration judge receives application with the highest fee. expense to the government and of the such classified information, he or she consequences, pursuant to section shall inform the alien. The agency that § 240.12 Decision of the immigration 208(d)(6) of the Act, of knowingly filing provides the classified information to judge. a frivolous application for asylum. The the immigration judge may provide an (a) Contents. The decision of the immigration judge shall provide to the unclassified summary of the immigration judge may be oral or alien a list of persons who have information for release to the alien, written. The decision of the immigration indicated their availability to represent whenever it determines it can do so judge shall include a finding as to aliens in asylum proceedings on a pro consistently with safeguarding both the inadmissibility or deportability. The bono basis. classified nature of the information and formal enumeration of findings is not (2) An application for asylum or its sources. The summary should be as required. The decision shall also withholding of removal must be filed detailed as possible, in order that the contain reasons for granting or denying with the Immigration Court, pursuant to alien may have an opportunity to offer the request. The decision shall be Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10371 concluded with the order of the § 240.14 Finality of order. Form EOIR–42, Application for immigration judge. The order of the immigration judge Cancellation of Removal, to the (b) Summary decision. shall become final in accordance with Immigration Court having Notwithstanding the provisions of § 3.39 of this chapter. administrative control over the Record of Proceeding of the underlying removal paragraph (a) of this section, in any case § 240.15 Appeals. where inadmissibility or deportability is proceeding under section 240 of the Act. determined on the pleadings pursuant Pursuant to 8 CFR part 3, an appeal The application must be accompanied to § 240.10(b) and the respondent does shall lie from a decision of an by payment of the filing fee as set forth not make an application under § 240.11, immigration judge to the Board of in § 103.7(b) of this chapter or a request the alien is statutorily ineligible for Immigration Appeals, except that no for a fee waiver. relief, or the respondent applies for appeal shall lie from an order of (b) Filing the application. The voluntary departure only and the removal entered in absentia. The application may be filed only with the immigration judge grants the procedures regarding the filing of a Immigration Court after jurisdiction has application, the immigration judge may Form EOIR 26, Notice of Appeal, fees, vested pursuant to § 3.14 of this chapter. and briefs are set forth in §§ 3.3, 3.31, enter a summary decision or, if §§ 240.21Ð240.24 [Reserved] voluntary departure is granted, a and 3.38 of this chapter. An appeal shall summary decision with an alternate be filed within 30 calendar days after Subpart CÐVoluntary Departure order of removal. the mailing of a written decision, the stating of an oral decision, or the service § 240.25 Voluntary departureÐauthority of (c) Order of the immigration judge. of a summary decision. The filing date the Service. The order of the immigration judge shall is defined as the date of receipt of the (a) Authorized officers. The authority direct the respondent’s removal, or the Notice of Appeal by the Board of contained in section 240B(a) of the Act termination of the proceedings, or such Immigration Appeals. The reasons for to permit aliens to depart voluntarily other disposition of the case as may be the appeal shall be stated in the Notice from the United States may be exercised appropriate. When removal is ordered, of Appeal in accordance with the in lieu of being subject to proceedings the immigration judge shall specify the provisions of § 3.3(b) of this chapter. under section 240 of the Act by district country, or countries in the alternate, to Failure to do so may constitute a ground directors, assistant district directors for which respondent’s removal shall be for dismissal of the appeal by the Board investigations, assistant district directed. The immigration judge is pursuant to § 3.1(d)(1–a) of this chapter. directors for examinations, officers in authorized to issue orders in the charge, chief patrol agents, service alternative or in combination as he or § 240.16 Application of new procedures or center directors, and assistant center she may deem necessary. termination of proceedings in old directors for examinations. proceedings pursuant to section 309(c) of (b) Conditions. The Service may § 240.13 Notice of decision. Public Law 104±208. attach to the granting of voluntary (a) Written decision. A written The Attorney General shall have the departure any conditions it deems decision shall be served upon the sole discretion to apply the provisions necessary to ensure the alien’s timely respondent and the Service counsel, of section 309(c) of Public Law 104–208, departure from the United States, together with the notice referred to in which provides for the application of including the posting of a bond, § 3.3 of this chapter. Service by mail is new removal procedures to certain cases continued detention pending departure, complete upon mailing. in exclusion or deportation proceedings and removal under safeguards. The and for the termination of certain cases (b) Oral decision. An oral decision alien shall be required to present to the in exclusion or deportation proceedings shall be stated by the immigration judge Service, for inspection and and initiation of new removal in the presence of the respondent and photocopying, his or her passport or proceedings. The Attorney General’s the Service counsel, if any, at the other travel documentation sufficient to application of the provisions of section conclusion of the hearing. A copy of the assure lawful entry into the country to 309(c) shall become effective upon summary written order shall be which the alien is departing. The publication of a notice in the Federal furnished at the request of the Service may hold the passport or Register. However, if the Attorney respondent or the Service counsel. documentation for sufficient time to General determines, in the exercise of investigate its authenticity. A voluntary (c) Summary decision. When the his or her discretion, that the delay departure order permitting an alien to immigration judge renders a summary caused by publication would adversely depart voluntarily shall inform the alien decision as provided in § 240.12(b), he affect the interests of the United States of the penalties under section 240B(d) of or she shall serve a copy thereof upon or the effective enforcement of the the Act. the respondent and the Service counsel immigration laws, the Attorney (c) Decision. The authorized officer, in at the conclusion of the hearing. General’s application shall become his or her discretion, shall specify the (d) Decision to remove. If the effective immediately upon issuance, period of time permitted for voluntary immigration judge decides that the and shall be published in the Federal departure, and may grant extensions respondent is removable and orders the Register as soon as practicable thereof, except that the total period respondent to be removed, the thereafter. allowed, including any extensions, shall immigration judge shall advise the not exceed 120 days. Every decision respondent of such decision, and of the §§ 240.17Ð240.19 [Reserved] regarding voluntary departure shall be consequences for failure to depart under Subpart BÐCancellation of removal communicated in writing on Form I– the order of removal, including civil and 210, Notice of Action—Voluntary criminal penalties described at sections § 240.20 Cancellation of removal and Departure. Voluntary departure may not 274D and 243 of the Act. Unless appeal adjustment of status under section 240A of be granted unless the alien requests from the decision is waived, the the Act. such voluntary departure and agrees to respondent shall be furnished with (a) Jurisdiction. An application for the its terms and conditions. Form EOIR–26, Notice of Appeal, and exercise of discretion under section (d) Application. Any alien who advised of the provisions of § 240.15. 240A of the Act shall be submitted on believes himself or herself to be eligible 10372 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations for voluntary departure under this Act and is not deportable under section (ii) The alien is, and has been, a section may apply therefor at any office 237(a)(4). person of good moral character for at of the Service. After the commencement (ii) The judge may not grant voluntary least five years immediately preceding of removal proceedings, the application departure under section 240B(a) of the the application; may be communicated through the Act beyond 30 days after the master (iii) The alien has not been convicted Service counsel. If the Service agrees to calendar hearing at which the case is of a crime described in section voluntary departure after proceedings initially calendared for a merits hearing, 101(a)(43) of the Act and is not have commenced, it may either: except pursuant to a stipulation under deportable under section 237(a)(4); and (1) Join in a motion to terminate the paragraph (b)(2) of this section. (iv) The alien has established by clear proceedings, and if the proceedings are (2) Stipulation. At any time prior to and convincing evidence that the alien terminated, grant voluntary departure; the completion of removal proceedings, has the means to depart the United or the Service counsel may stipulate to a States and has the intention to do so. (2) Join in a motion asking the grant of voluntary departure under (2) Travel documentation. Except as immigration judge to permit voluntary section 240B(a) of the Act. otherwise provided in paragraph (b)(3) departure in accordance with § 240.26. (3) Conditions. (i) The judge may of this section, the clear and convincing (e) Appeals. An appeal shall not lie impose such conditions as he or she evidence of the means to depart shall from a denial of an application for deems necessary to ensure the alien’s include in all cases presentation by the voluntary departure under this section, timely departure from the United States, alien of a passport or other travel but the denial shall be without including the posting of a voluntary documentation sufficient to assure prejudice to the alien’s right to apply to departure bond to be canceled upon lawful entry into the country to which the immigration judge for voluntary proof that the alien has departed the the alien is departing. The Service shall departure in accordance with § 240.26 United States within the time specified. have full opportunity to inspect and or for relief from removal under any The alien shall be required to present to photocopy the documentation, and to provision of law. the Service, for inspection and challenge its authenticity or sufficiency (f) Revocation. If, subsequent to the photocopying, his or her passport or before voluntary departure is granted. granting of an application for voluntary other travel documentation sufficient to (3) Conditions. The judge may impose departure under this section, it is assure lawful entry into the country to such conditions as he or she deems ascertained that the application should which the alien is departing, unless: necessary to ensure the alien’s timely not have been granted, that grant may be (A) A travel document is not departure from the United States. In all revoked without advance notice by any necessary to return to his or her native cases under section 240B(b) of the Act, officer authorized to grant voluntary country or to which country the alien is the alien shall be required to post a departure under § 240.25(a). Such departing; or voluntary departure bond, in an amount revocation shall be communicated in (B) The document is already in the necessary to ensure that the alien writing, citing the statutory basis for possession of the Service. departs within the time specified, but in (ii) The Service may hold the passport revocation. No appeal shall lie from no case less than $500. The voluntary or documentation for sufficient time to revocation. departure bond shall be posted with the investigate its authenticity. If such district director within 5 business days § 240.26 Voluntary departureÐauthority of documentation is not immediately of the immigration judge’s order the Executive Office for Immigration available to the alien, but the granting voluntary departure, and the Review. immigration judge is satisfied that the district director may, at his or her (a) Eligibility: general. An alien alien is making diligent efforts to secure discretion, hold the alien in custody previously granted voluntary departure it, voluntary departure may be granted until the bond is posted. If the bond is under section 240B of the Act, including for a period not to exceed 120 days, not posted within 5 business days, the by the Service under § 240.25, and who subject to the condition that the alien voluntary departure order shall vacate fails to depart voluntarily within the within 60 days must secure such automatically and the alternate order of time specified, shall thereafter be documentation and present it to the removal will take effect on the following ineligible, for a period of ten years, for Service. The Service in its discretion day. In order for the bond to be voluntary departure or for relief under may extend the period within which the canceled, the alien must provide proof sections 240A, 245, 248, and 249 of the alien must provide such documentation. of departure to the district director. Act. If the documentation is not presented (d) Alternate order of removal. Upon (b) Prior to completion of removal within the 60-day period or any granting a request made for voluntary proceedings.—(1) Grant by the extension thereof, the voluntary departure either prior to the completion immigration judge. (i) An alien may be departure order shall vacate of proceedings or at the conclusion of granted voluntary departure by an automatically and the alternate order of proceedings, the immigration judge immigration judge pursuant to section removal will take effect, as if in effect shall also enter an alternate order or 240B(a) of the Act only if the alien: on the date of issuance of the removal. (A) Makes such request prior to or at immigration judge order. (e) Periods of time. If voluntary the master calendar hearing at which (c) At the conclusion of the removal departure is granted prior to the the case is initially calendared for a proceedings.—(1) Required findings. An completion of removal proceedings, the merits hearing; immigration judge may grant voluntary immigration judge may grant a period (B) Makes no additional requests for departure at the conclusion of the not to exceed 120 days. If voluntary relief (or if such requests have been removal proceedings under section departure is granted at the conclusion of made, such requests are withdrawn 240B(b) of the Act, if he or she finds proceedings, the immigration judge may prior to any grant of voluntary departure that: grant a period not to exceed 60 days. pursuant to this section); (i) The alien has been physically (f) Extension of time to depart. (C) Concedes removability; present in the United States for period Authority to extend the time within (D) Waives appeal of all issues; and of at least one year preceding the date which to depart voluntarily specified (E) Has not been convicted of a crime the Notice to Appear was served under initially by an immigration judge or the described in section 101(a)(43) of the section 239(a) of the Act; Board is within the sole jurisdiction of Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10373 the district director. An immigration the public, including the press, be motions, appeals, and other papers filed judge or the Board may reinstate permitted to attend; in that event, the in the proceeding shall constitute the voluntary departure in a removal hearing shall be open, provided that the record in the case. The hearing shall be proceeding that has been reopened for a alien states for the record that he or she recorded verbatim except for statements purpose other than solely making an is waiving the requirement in section made off the record with the permission application for voluntary departure if 236 of the Act that the inquiry shall be of the immigration judge. reopening was granted prior to the kept separate and apart from the public. expiration of the original period of When the hearing is to be open, § 240.33 Applications for asylum or voluntary departure. In no event can the depending upon physical facilities, withholding of deportation. total period of time, including any reasonable limitation may be placed (a) If the alien expresses fear of extension, exceed 120 days or 60 days upon the number in attendance at any persecution or harm upon return to his as set forth in section 240B of the Act. one time, with priority being given to or her country of origin or to a country (g) Administrative Appeals. No appeal the press over the general public. The to which the alien may be deported after shall lie regarding the length of a period immigration judge shall ascertain a determination of excludability from of voluntary departure (as distinguished whether the applicant for admission is the United States pursuant to this from issues of whether to grant the person to whom Form I–122 was subpart, and the alien has not been voluntary departure). previously delivered by the examining referred to the immigration judge by an (h) Reinstatement of voluntary immigration officer as provided in 8 asylum officer in accordance with departure. An immigration judge or the CFR part 235; enter a copy of such form § 208.14(b) of this chapter, the Board may reinstate voluntary departure in evidence as an exhibit in the case; immigration judge shall: in a removal proceeding that has been inform the applicant of the nature and (1) Advise the alien that he or she reopened for a purpose other than solely purpose of the hearing; advise him or may apply for asylum in the United making application for voluntary her of the privilege of being represented States or withholding of deportation to departure, if reopening was granted by an attorney of his or her own choice that other country; and prior to the expiration of the original at no expense to the Government, and (2) Make available the appropriate period of voluntary departure. In no of the availability of free legal services application forms. event can the total period of time, programs qualified under 8 CFR part 3 (b) An application for asylum or including any extension, exceed 120 and organizations recognized pursuant withholding of deportation must be days or 60 days as set forth in section to § 292.2 of this chapter located in the filed with the Immigration Court, 240B of the Act and paragraph (a) of this district where his or her exclusion pursuant to § 208.4(c) of this chapter. section. hearing is to be held; and shall ascertain Upon receipt of an application that has that the applicant has received a list of not been referred by an asylum officer, §§ 240.27±240.29 [Reserved] such programs; and request him or her the Immigration Court shall forward a copy to the Department of State Subpart DÐExclusion of Aliens (for to ascertain then and there whether he or she desires representation; advise pursuant to § 208.11 of this chapter and proceedings commenced prior to April shall calendar the case for a hearing. 1, 1997) him or her that he or she will have a reasonable opportunity to present The reply, if any, from the Department § 240.30 Proceedings prior to April 1, 1997. evidence in his or her own behalf, to of State, unless classified under the Subpart D of 8 CFR part 240 applies examine and object to evidence against applicable Executive Order, shall be to exclusion proceedings commenced him or her, and to cross-examine given to both the applicant and to the prior to April 1, 1997, pursuant to the witnesses presented by the Government; Service counsel representing the former section 236 of the Act. An and place the applicant under oath. government. exclusion proceeding is commenced by (b) Procedure. The immigration judge (c) Applications for asylum or the filing of Form I–122 with the shall receive and adduce material and withholding of deportation so filed will Immigration Court, and an alien is relevant evidence, rule upon objections, be decided by the immigration judge considered to be in exclusion and otherwise regulate the course of the pursuant to the requirements and proceedings only upon such filing. All hearing. standards established in 8 CFR part 208 references to the Act contained in this (c) Attorney for the Service. The after an evidentiary hearing that is subpart are references to the Act in Service shall assign an attorney to each necessary to resolve material factual effect prior to April 1, 1997. case in which an applicant’s nationality issues in dispute. An evidentiary is in issue and may assign an attorney hearing extending beyond issues related § 240.31 Authority of immigration judges. to any case in which such assignment is to the basis for a mandatory denial of In determining cases referred for deemed necessary or advantageous. The the application pursuant to § 208.13(c) further inquiry as provided in section duties of the Service counsel include, of this chapter is not necessary once the 235 of the Act, immigration judges shall but are not limited to, the presentation immigration judge has determined that have the powers and authority conferred of evidence and the interrogation, such denial is required. upon them by the Act and this chapter. examination, and cross-examination of (1) Evidentiary hearings on Subject to any specific limitation the applicant and other witnesses. applications for asylum or withholding prescribed by the Act and this chapter, Nothing contained in this section of deportation will be closed to the immigration judges shall also exercise diminishes the authority of an public unless the applicant expressly the discretion and authority conferred immigration judge to conduct requests that it be open pursuant to upon the Attorney General by the Act as proceedings under this part. § 236.3 of this chapter. is appropriate and necessary for the (d) Depositions. The procedures (2) Nothing in this section is intended disposition of such cases. specified in § 240.48(e) shall apply. to limit the authority of the immigration (e) Record. The hearing before the judge properly to control the scope of § 240.32 Hearing. immigration judge, including the any evidentiary hearing. (a) Opening. Exclusion hearings shall testimony, exhibits, applications, (3) During the exclusion hearing, the be closed to the public, unless the alien proffers, and requests, the immigration applicant shall be examined under oath at his or her own instance requests that judge’s decision, and all written orders, on his or her application and may 10374 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations present evidence and witnesses on his decision in accordance with § 3.37 of under the provisions of section 217 of or her own behalf. The applicant has the this chapter. the Act. All references to the Act burden of establishing that he or she is (b) Advice to alien ordered excluded. contained in this subpart pertain to the a refugee as defined in section An alien ordered excluded shall be Act as in effect prior to April 1, 1997. 101(a)(42) of the Act pursuant to the furnished with Form I–296, Notice to standard set forth in § 208.13 of this Alien Ordered Excluded by Immigration § 240.41 Immigration judges. chapter. Judge, at the time of an oral decision by (a) Authority. In any proceeding (4) The Service counsel for the the immigration judge or upon service conducted under this part the government may call witnesses and of a written decision. immigration judge shall have the present evidence for the record, (c) Holders of refugee travel authority to determine deportability and including information classified under documents. Aliens who are the holders to make decisions, including orders of the applicable Executive Order, of valid unexpired refugee travel deportation, as provided by section provided the immigration judge or the documents may be ordered excluded 242(b) and 242B of the Act; to reinstate Board has determined that such only if they are found to be inadmissible orders of deportation as provided by information is relevant to the hearing. under section 212(a)(2), 212(a)(3), or section 242(f) of the Act; to determine The applicant shall be informed when 212(a)(6)(E) of the Act, and it is applications under sections 208, 212(k), the immigration judge receives such determined that on the basis of the acts 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245 classified information. The agency that for which they are inadmissible there and 249 of the Act; to determine the provides the classified information to are compelling reasons of national country to which an alien’s deportation the immigration judge may provide an security or public order for their will be directed in accordance with unclassified summary of the exclusion. If the immigration judge section 243(a) of the Act; to order information for release to the applicant finds that the alien is inadmissible but temporary withholding of deportation whenever it determines it can do so determines that there are no compelling pursuant to section 243(h) of the Act; consistently with safeguarding both the reasons of national security or public and to take any other action consistent classified nature of the information and order for exclusion, the immigration with applicable law and regulations as its source. The summary should be as judge shall remand the case to the may be appropriate. An immigration detailed as possible, in order that the district director for parole. judge may certify his or her decision in applicant may have an opportunity to any case to the Board of Immigration § 240.36 Finality of order. offer opposing evidence. A decision Appeals when it involves an unusually based in whole or in part on such The decision of the immigration judge complex or novel question of law or classified information shall state that shall become final in accordance with fact. Nothing contained in this part shall such information is material to the § 3.37 of this chapter. be construed to diminish the authority decision. § 240.37 Appeals. conferred on immigration judges under (d) The decision of an immigration Except for temporary exclusions section 103 of the Act. judge to grant or deny asylum or under section 235(c) of the Act, an (b) Withdrawal and substitution of withholding of deportation shall be appeal from a decision of an immigration judges. The immigration communicated to the applicant and to Immigration Judge under this part may judge assigned to conduct the hearing the Service counsel for the government. be taken by either party pursuant to shall at any time withdraw if he or she An adverse decision will state why § 3.38 of this chapter. deems himself or herself disqualified. If asylum or withholding of deportation an immigration judge becomes was denied. § 240.38 Fingerprinting of excluded aliens. unavailable to complete his or her § 240.34 Renewal of application for Every alien 14 years of age or older duties within a reasonable time, or if at adjustment of status under section 245 of who is excluded from admission to the any time the respondent consents to a the Act. United States by an immigration judge substitution, another immigration judge An adjustment application by an alien shall be fingerprinted, unless during the may be assigned to complete the case. paroled under section 212(d)(5) of the preceding year he or she has been The new immigration judge shall Act, which has been denied by the fingerprinted at an American consular familiarize himself or herself with the district director, may be renewed in office. record in the case and shall state for the record that he or she has done so. exclusion proceedings under section § 240.39 [Reserved] 236 of the Act (as in effect prior to April § 240.42 Representation by counsel. 1, 1997) before an immigration judge Subpart EÐProceedings to Determine under the following two conditions: Deportability of Aliens in the United The respondent may be represented at first, the denied application must have States: Hearing and Appeal (for the hearing by an attorney or other been properly filed subsequent to the proceedings commenced prior to April representative qualified under 8 CFR applicant’s earlier inspection and 1, 1997) part 292. admission to the United States; and § 240.43 Incompetent respondents. second, the applicant’s later absence § 240.40 Proceedings commenced prior to April 1, 1997. from and return to the United States When it is impracticable for the must have been under the terms of an Subpart E of 8 CFR part 240 applies respondent to be present at the hearing advance parole authorization on Form only to deportation proceedings because of mental incompetency, the I–512 granted to permit the applicant’s commenced prior to April 1, 1997. A guardian, near relative, or friend who absence and return to pursue the deportation proceeding is commenced was served with a copy of the order to previously filed adjustment application. by the filing of Form I–221 (Order to show cause shall be permitted to appear Show Cause) with the Immigration on behalf of the respondent. If such a § 240.35 Decision of the immigration Court, and an alien is considered to be person cannot reasonably be found or judge; notice to the applicant. in deportation proceedings only upon fails or refuses to appear, the custodian (a) Decision. The immigration judge such filing, except in the case of an of the respondent shall be requested to shall inform the applicant of his or her alien admitted to the United States appear on behalf of the respondent. Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10375

§ 240.44 Interpreter. she desires representation; advise the any unresolved issues, except that no Any person acting as interpreter in a respondent of the availability of free further evidence need be received as to hearing before an immigration judge legal services programs qualified under any facts admitted during the pleading. under this part shall be sworn to 8 CFR part 3 and organizations The respondent shall provide a court interpret and translate accurately, recognized pursuant to § 292.2 of this certified copy of a Judicial unless the interpreter is an employee of chapter, located in the district where the Recommendation Against Deportation the United States Government, in which deportation hearing is being held; (JRAD) to the immigration judge when event no such oath shall be required. ascertain that the respondent has such recommendation will be the basis received a list of such programs, and a of denying any charge(s) brought by the § 240.45 Postponement and adjournment copy of Form I–618, Written Notice of Service in the proceedings against the of hearing. Appeal Rights; advise the respondent respondent. No JRAD is effective against After the commencement of the that he or she will have a reasonable a charge of deportability under section hearing, the immigration judge may opportunity to examine and object to 241(a)(11) of the Act or if the JRAD was grant a reasonable adjournment either at the evidence against him or her, to granted on or after November 29, 1990. his or her own instance or, for good present evidence in his or her own (d) Additional charges. The Service cause shown, upon application by the behalf and to cross-examine witnesses may at any time during a hearing lodge respondent or the Service. presented by the Government; place the additional charges of deportability, respondent under oath; read the factual including factual allegations, against the § 240.46 Evidence. allegations and the charges in the order respondent. Copies of the additional (a) Sufficiency. A determination of to show cause to the respondent and factual allegations and charges shall be deportability shall not be valid unless it explain them in nontechnical language, submitted in writing for service on the is found by clear, unequivocal, and and enter the order to show cause as an respondent and entry as an exhibit in convincing evidence that the facts exhibit in the record. Deportation the record. The immigration judge shall alleged as grounds for deportation are hearings shall be open to the public, read the additional factual allegations true. except that the immigration judge may, and charges to the respondent and (b) Use of prior statements. The in his or her discretion and for the explain them to him or her. The immigration judge may receive in purpose of protecting witnesses, immigration judge shall advise the evidence any oral or written statement respondents, or the public interest, respondent if he or she is not that is material and relevant to any issue direct that the general public or represented by counsel that he or she in the case previously made by the particular individuals shall be excluded may be so represented and also that he respondent or any other person during from the hearing in any specific case. or she may have a reasonable time any investigation, examination, hearing, Depending upon physical facilities, within which to meet the additional or trial. reasonable limitation may be placed factual allegations and charges. The (c) Testimony. Testimony of witnesses upon the number in attendance at any respondent shall be required to state appearing at the hearing shall be under one time, with priority being given to then and there whether he or she desires oath or affirmation administered by the the press over the general public. a continuance for either of these immigration judge. (b) Pleading by respondent. The reasons. Thereafter, the provisions of (d) Depositions. The immigration immigration judge shall require the paragraph (b) of this section shall apply judge may order the taking of respondent to plead to the order to show to the additional factual allegations and depositions pursuant to § 3.35 of this cause by stating whether he or she lodged charges. chapter. admits or denies the factual allegations and his or her deportability under the § 240.49 Ancillary matters, applications. § 240.47 Contents of record. charges contained therein. If the (a) Creation of the status of an alien The hearing before the immigration respondent admits the factual lawfully admitted for permanent judge, including the testimony, exhibits, allegations and admits his or her residence. The respondent may apply to applications, proffers, and requests, the deportability under the charges and the the immigration judge for suspension of immigration judge’s decision, and all immigration judge is satisfied that no deportation under section 244(a) of the written orders, motions, appeals, briefs, issues of law or fact remain, the Act; for adjustment of status under and other papers filed in the immigration judge may determine that section 245 of the Act, or under section proceedings shall constitute the record deportability as charged has been 1 of the Act of November 2, 1966, or in the case. The hearing shall be established by the admissions of the under section 101 or 104 of the Act of recorded verbatim except for statements respondent. The immigration judge October 28, 1977; or for the creation of made off the record with the permission shall not accept an admission of a record of lawful admission for of the immigration judge. In his or her deportability from an unrepresented permanent residence under section 249 discretion, the immigration judge may respondent who is incompetent or of the Act. The application shall be exclude from the record any arguments under age 16 and is not accompanied by subject to the requirements of 8 CFR made in connection with motions, a guardian, relative, or friend; nor from parts 240, 245, and 249. The approval of applications, requests, or objections, but an officer of an institution in which a any application made to the in such event the person affected may respondent is an inmate or patient. immigration judge under section 245 of submit a brief. When, pursuant to this paragraph, the the Act by an alien spouse (as defined immigration judge may not accept an in section 216(g)(1) of the Act) or by an § 240.48 Hearing. admission of deportability, he or she alien entrepreneur (as defined in section (a) Opening. The immigration judge shall direct a hearing on the issues. 216A(f)(1) of the Act), shall result in the shall advise the respondent of his or her (c) Issues of deportability. When alien’s obtaining the status of lawful right to representation, at no expense to deportability is not determined under permanent resident on a conditional the Government, by counsel of his or the provisions of paragraph (b) of this basis in accordance with the provisions her own choice authorized to practice in section, the immigration judge shall of section 216 or 216A of the Act, the proceedings and require him or her request the assignment of a Service whichever is applicable. However, the to state then and there whether he or counsel, and shall receive evidence as to Petition to Remove the Conditions on 10376 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Residence required by section 216(c) of him or her into its territory, or fails to 101(a)(42) of the Act pursuant to the the Act or the Petition by Entrepreneur furnish timely notice of acceptance, or standard set forth in § 208.13 of this to Remove Conditions required by if the respondent declines to designate chapter. section 216A(c) of the Act shall be made a country. (iv) The Service counsel for the to the director in accordance with 8 CFR (2) If the alien expresses fear of government may call witnesses and part 216. In conjunction with any persecution or harm upon return to any present evidence for the record, application for creation of status of an of the countries to which the alien including information classified under alien lawfully admitted for permanent might be deported pursuant to the applicable Executive Order, residence made to an immigration paragraph (c)(1) of this section, and the provided the immigration judge or the judge, if the respondent is inadmissible alien has not previously filed an Board has determined that such under any provision of section 212(a) of application for asylum or withholding information is relevant to the hearing. the Act and believes that he or she of deportation that has been referred to When the immigration judge receives meets the eligibility requirements for a the immigration judge by an asylum such classified information he or she waiver of the ground of inadmissibility, officer in accordance with § 208.14(b) of shall inform the applicant. The agency he or she may apply to the immigration this chapter, the immigration judge that provides the classified information judge for such waiver. The immigration shall: to the immigration judge may provide judge shall inform the respondent of his (i) Advise the alien that he or she may an unclassified summary of the or her apparent eligibility to apply for apply for asylum in the United States or information for release to the applicant, any of the benefits enumerated in this withholding of deportation to those whenever it determines it can do so paragraph and shall afford the countries; and consistently with safeguarding both the respondent an opportunity to make (ii) Make available the appropriate classified nature of the information and application therefor during the hearing. application forms. its source. The summary should be as In exercising discretionary power when (3) An application for asylum or detailed as possible, in order that the considering an application under this withholding of deportation must be applicant may have an opportunity to paragraph, the immigration judge may filed with the Immigration Court, offer opposing evidence. A decision consider and base the decision on pursuant to § 208.4(b) of this chapter. based in whole or in part on such information not contained in the record Upon receipt of an application that has classified information shall state and not made available for inspection not been referred by an asylum officer, whether such information is material to by the respondent, provided the the Immigration Court shall forward a the decision. Commissioner has determined that such copy to the Department of State (5) The decision of an immigration information is relevant and is classified pursuant to § 208.11 of this chapter and judge to grant or deny asylum or under the applicable Executive Order as shall calendar the case for a hearing. withholding of deportation shall be requiring protection from unauthorized The reply, if any, of the Department of communicated to the applicant and to disclosure in the interest of national State, unless classified under the the Service counsel for the government. security. Whenever the immigration applicable Executive Order, shall be An adverse decision will state why judge believes that he or she can do so given to both the applicant and to the asylum or withholding of deportation while safeguarding both the information Service counsel representing the was denied. and its source, the immigration judge government. (d) Application for relief under should inform the respondent of the (4) Applications for asylum or sections 241(a)(1)(H) and general nature of the information in withholding of deportation so filed will 241(a)(1)(E)(iii) of the Act. The order that the respondent may have an be decided by the immigration judge respondent may apply to the opportunity to offer opposing evidence. pursuant to the requirements and immigration judge for relief from A decision based in whole or in part on standards established in 8 CFR part 208 deportation under sections 241(a)(1)(H) such classified information shall state after an evidentiary hearing that is and 241(a)(1)(E)(iii) of the Act. that the information is material to the necessary to resolve factual issues in (e) General. An application under this decision. dispute. An evidentiary hearing section shall be made only during the (b) Voluntary departure. The extending beyond issues related to the hearing and shall not be held to respondent may apply to the basis for a mandatory denial of the constitute a concession of alienage or immigration judge for voluntary application pursuant to § 208.13 or deportability in any case in which the departure in lieu of deportation § 208.16 of this chapter is not necessary respondent does not admit his alienage pursuant to section 244(e) of the Act once the immigration judge has or deportability. However, nothing in and § 240.56. determined that such a denial is this section shall prohibit the Service (c) Applications for asylum or required. from using information supplied in an withholding of deportation. (1) The (i) Evidentiary hearings on application for asylum or withholding immigration judge shall notify the applications for asylum or withholding of deportation submitted to an asylum respondent that if he or she is finally of deportation will be open to the public officer pursuant to § 208.2 of this ordered deported, his or her deportation unless the applicant expressly requests chapter on or after January 4, 1995, as will in the first instance be directed that it be closed. the basis for issuance of an order to pursuant to section 243(a) of the Act to (ii) Nothing in this section is intended show cause or a notice to appear to the country designated by the to limit the authority of the immigration establish alienage or deportability in a respondent and shall afford him or her judge properly to control the scope of case referred to an immigration judge an opportunity then and there to make any evidentiary hearing. under § 208.14(b) of this chapter. The such designation. The immigration (iii) During the deportation hearing, respondent shall have the burden of judge shall then specify and state for the the applicant shall be examined under establishing that he or she is eligible for record the country, or countries in the oath on his or her application and may any requested benefit or privilege and alternative, to which respondent’s present evidence and witnesses in his or that it should be granted in the exercise deportation will be directed pursuant to her own behalf. The applicant has the of discretion. The respondent shall not section 243(a) of the Act if the country burden of establishing that he or she is be required to pay a fee on more than of his or her designation will not accept a refugee as defined in section one application within paragraphs (a) Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10377 and (c) of this section, provided that the the trail attorney, if any, at the § 240.54 [Reserved] minimum fee imposed when more than conclusion of the hearing. Unless appeal one application is made shall be from the decision is waived, the Subpart FÐSuspension of Deportation and Voluntary Departure (for determined by the cost of the respondent shall be furnished with proceedings commenced prior to April application with the highest fee. Form EOIR–26, Notice of Appeal, and 1, 1997) Nothing contained in this section is advised of the provisions of § 240.53. A intended to foreclose the respondent printed copy of the oral decision shall § 240.55 Proceedings commenced prior to from applying for any benefit or be furnished at the request of the April 1, 1997. privilege which he or she believes respondent or the Service counsel. Subpart F of 8 CFR part 240 applies himself or herself eligible to receive in (c) Summary decision. When the to deportation proceedings commenced proceedings under this part. prior to April 1, 1997. A deportation immigration judge renders a summary proceeding is commenced by the filing § 240.50 Decision of the immigration decision as provided in § 240.51(b), he judge. of Form I–221 (Order to Show Cause) or she shall serve a copy thereof upon with the Immigration Court, and an (a) Contents. The decision of the the respondent at the conclusion of the alien is considered to be in deportation immigration judge may be oral or hearing. Unless appeal from the proceedings only upon such filing, written. Except when deportability is decision is waived, the respondent shall except in the case of an alien admitted determined on the pleadings pursuant be furnished with Form EOIR–26, to the United States under the to § 240.48(b), the decision of the Notice of Appeal, and advised of the provisions of section 217 of the Act. All immigration judge shall include a provisions of § 240.54. references to the Act contained in this finding as to deportability. The formal subpart are references to the Act in enumeration of findings is not required. § 240.52 Finality of order. effect prior to April 1, 1997. The decision shall also contain the The decision of the immigration judge reasons for granting or denying the § 240.56 Application. shall become final in accordance with request. The decision shall be Notwithstanding any other provision § 3.39 of this chapter. concluded with the order of the of this chapter, an alien who is immigration judge. § 240.53 Appeals. deportable because of a conviction on or (b) Summary decision. after November 18, 1988, for an Notwithstanding the provisions of (a) Pursuant to 8 CFR part 3, an aggravated felony as defined in section paragraph (a) of this section, in any case appeal shall lie from a decision of an 101(a)(43) of the Act, shall not be where deportability is determined on immigration judge to the Board, except eligible for voluntary departure as the pleadings pursuant to § 240.48(b) that no appeal shall lie from an order of prescribed in 8 CFR part 240 and and the respondent does not make an deportation entered in absentia. The section 244 of the Act. Pursuant to application under § 240.49, or the procedures regarding the filing of a subpart F of this part and section 244 of respondent applies for voluntary Form EOIR–26, Notice of Appeal, fees, the Act, an immigration judge may departure only and the immigration and briefs are set forth in §§ 3.3, 3.31, authorize the suspension of an alien’s judge grants the application, the and 3.38 of this chapter. An appeal shall deportation; or, if the alien establishes immigration judge may enter a summary be filed within 30 calendar days after that he or she is willing and has the decision on Form EOIR–7, Summary the mailing of a written decision, the immediate means with which to depart Order of Deportation, if deportation is stating of an oral decision, or the service promptly from the United States, an ordered, or on Form EOIR–6, Summary of a summary decision. The filing date immigration judge may authorize the Order of Voluntary Departure, if is defined as the date of receipt of the alien to depart voluntarily from the voluntary departure is granted with an Notice of Appeal by the Board. The United States in lieu of deportation alternate order of deportation. within such time as may be specified by reasons for the appeal shall be stated in (c) Order of the immigration judge. the immigration judge when first the Form EOIR–26, Notice of Appeal, in The order of the immigration judge shall authorizing voluntary departure, and direct the respondent’s deportation, or accordance with the provisions of under such conditions as the district the termination of the proceedings, or § 3.3(b) of this chapter. Failure to do so director shall direct. An application for such other disposition of the case as may constitute a ground for dismissal of suspension of deportation shall be made may be appropriate. When deportation the appeal by the Board pursuant to on Form EOIR–40. is ordered, the immigration judge shall § 3.1(d)(1-a) of this chapter. § 240.57 Extension of time to depart. specify the country, or countries in the (b) Prohibited appeals; legalization or alternate, to which respondent’s applications. An alien respondent Authority to reinstate or extend the time within which to depart voluntarily deportation shall be directed. The defined in § 245a.2(c)(6) or (7) of this specified initially by an immigration immigration judge is authorized to issue chapter who fails to file an application orders in the alternative or in judge or the Board is within the sole for adjustment of status to that of a jurisdiction of the district director, combination as he or she may deem temporary resident within the necessary. except that an immigration judge or the prescribed period(s), and who is Board may reinstate voluntary departure § 240.51 Notice of decision. thereafter found to be deportable by in a deportation proceeding that has (a) Written decision. A written decision of an immigration judge, shall been reopened for a purpose other than decision shall be served upon the not be permitted to appeal the finding solely making an application for respondent and the Service counsel, of deportability based solely on refusal voluntary departure. A request by an together with the notice referred to in by the immigration judge to entertain alien for reinstatement or an extension § 3.3 of this chapter. Service by mail is such an application in deportation of time within which to depart complete upon mailing. proceedings. voluntarily shall be filed with the (b) Oral decision. An oral decision district director having jurisdiction over shall be stated by the immigration judge the alien’s place of residence. Written in the presence of the respondent and notice of the district director’s decision 10378 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations shall be served upon the alien and no (c) Upon expiration of the time section 212(a) of the Act or removable appeal may be taken therefrom. allotted for an appeal if the respondent under section 237(a)(1)(C), 237(a)(2), or does not file an appeal within that time; 237(a)(4) of the Act, or who presents a Subpart GÐCivil Penalties for Failure (d) If certified to the Board or significant risk of noncompliance with to Depart [Reserved] Attorney General, upon the date of the the order of removal, beyond the subsequent decision ordering removal; removal period, as necessary, until 105. Part 241 is revised to read as (e) If an immigration judge orders an removal from the United States. If such follows: alien removed in the alien’s absence, an alien demonstrates by clear and PART 241ÐAPPREHENSION AND immediately upon entry of such order; convincing evidence that the release DETENTION OF ALIENS ORDERED or would not pose a danger to the REMOVED (f) If an immigration judge issues an community or a significant flight risk, alternate order of removal in connection the district director may, in the exercise Subpart AÐPost-hearing Detention and with a grant of voluntary departure, of discretion, order the alien released Removal upon overstay of the voluntary from custody on such conditions as the Sec. departure period except where the district director may prescribe, 241.1 Final order of removal. respondent has filed a timely appeal including bond in an amount sufficient 241.2 Warrant of removal. with the Board. In such a case, the order to ensure the alien’s appearance for 241.3 Detention of aliens during removal shall become final upon an order of removal. The district may consider, but period. removal by the Board or the Attorney is not limited to considering, the 241.4 Continued detention beyond the following factors: removal period. General, or upon overstay of any voluntary departure period granted or (1) The nature and seriousness of the 241.5 Conditions of release after removal alien’s criminal convictions; period. reinstated by the Board or the Attorney 241.6 Administrative stay of removal. General. (2) Other criminal history; 241.7 Self-removal. (3) Sentence(s) imposed and time 241.8 Reinstatement of removal orders. § 241.2 Warrant of removal. actually served; 241.9 Notice to transportation line of alien’s (a) Issuance of a warrant of removal. (4) History of failures to appear for removal. A Form I–205, Warrant of Removal, court (defaults); 241.10 Special care and attention of based upon the final administrative (5) Probation history; (6) Disciplinary problems while removable aliens. removal order in the alien’s case shall incarcerated; 241.11 Detention and removal of be issued by a district director. The stowaways. (7) Evidence of rehabilitative effort or 241.12 Nonapplication of costs of detention district director shall exercise the recidivism; and maintenance. authority contained in section 241 of the (8) Equities in the United States; and 241.13—241.19 [Reserved] Act to determine at whose expense the (9) Prior immigration violations and alien shall be removed and whether his Subpart BÐDeportation of Excluded Aliens history. (for hearings commenced prior to April 1, or her mental or physical condition (b) Continuation of custody for other 1997) requires personal care and attention en aliens. Any alien removable under any route to his or her destination. section of the Act other than section 241.20 Proceedings commenced prior to (b) Execution of the warrant of April 1, 1997. 212(a), 237(a)(1)(C), 237(a)(2), or 241.21 Stay of deportation of excluded removal. Any officer authorized by 237(a)(4) may be detained beyond the alien. § 287.5(e) of this chapter to execute removal period, in the discretion of the 241.22 Notice to surrender for deportation. administrative warrants of arrest may district director, unless the alien 241.23 Cost of maintenance not assessed. execute a warrant of removal. demonstrates to the satisfaction of the 241.24 Notice to transportation line of district director that he or she is likely alien’s exclusion. § 241.3 Detention of aliens during removal period. to comply with the removal order and 241.25 Deportation. is not a risk to the community. 241.26—241.29 [Reserved] (a) Assumption of custody. Once the § 241.5 Conditions of release after removal Subpart CÐDeportation of Aliens in the removal period defined in section period. United States (for hearings commenced 241(a)(1) of the Act begins, an alien in prior to April 1, 1997) the United States will be taken into (a) Order of supervision. An alien 241.30 Proceedings commenced prior to custody pursuant to the warrant of released pursuant to § 241.4 shall be April 1, 1997. removal. released pursuant to an order of 241.31 Final order of deportation. (b) Cancellation of bond. Any bond supervision. A district director, acting 241.32 Warrant of deportation. previously posted will be canceled district director, deputy district director, 241.33 Expulsion. unless it has been breached or is subject assistant district director for Authority: 8 U.S.C. 1103, 1223, 1227, 1251, to being breached. investigations, assistant district director 1253, 1255, and 1330; 8 CFR part 2. (c) Judicial stays. The filing of (or for detention and deportation, or officer intention to file) a petition or action in in charge may issue an order of Subpart AÐPost-hearing Detention a Federal court seeking review of the supervision on Form I–220B. The order and Removal issuance or execution of an order of shall specify conditions of supervision including, but not limited to, the § 241.1 Final order of removal. removal shall not delay execution of the Warrant of Removal except upon an following: An order of removal made by the affirmative order of the court. (1) A requirement that the alien report immigration judge at the conclusion of to a specified officer periodically and proceedings under section 240 of the § 241.4 Continued detention beyond the provide relevant information under oath Act shall become final: removal period. as directed; (a) Upon dismissal of an appeal by the (a) Continuation of custody for (2) A requirement that the alien Board of Immigration Appeals; inadmissible or criminal aliens. The continue efforts to obtain a travel (b) Upon waiver of appeal by the district director may continue in document and assist the Service in respondent; custody any alien inadmissible under obtaining a travel document; Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10379

(3) A requirement that the alien report § 241.7 Self-removal. determination. The officer shall advise as directed for a mental or physical A district director may permit an the alien that he or she may make a examination or examinations as directed alien ordered removed (including an written or oral statement contesting the by the Service; alien ordered excluded or deported in determination. If the alien wishes to (4) A requirement that the alien obtain proceedings prior to April 1, 1997) to make such a statement, the officer shall advance approval of travel beyond depart at his or her own expense to a allow the alien to do so and shall previously specified times and destination of his or her own choice. consider whether the alien’s statement distances; and Any alien who has departed from the warrants reconsideration of the (5) A requirement that the alien United States while an order of determination. provide the Service with written notice deportation or removal is outstanding (c) Order. If the requirements of of any change of address on Form AR– shall be considered to have been paragraph (a) of this section are met, the 11 within ten days of the change. deported, excluded and deported, or alien shall be removed under the (b) Posting of bond. An officer removed, except that an alien who previous order of exclusion, authorized to issue an order of departed before the expiration of the deportation, or removal in accordance supervision may require the posting of voluntary departure period granted in with section 241(a)(5) of the Act. a bond in an amount determined by the connection with an alternate order of (d) Exception for withholding of officer to be sufficient to ensure deportation or removal shall not be removal. If an alien whose prior order compliance with the conditions of the considered to have been so deported or of removal has been reinstated under order, including surrender for removal. removed. this section expresses a fear of returning (c) Employment authorization. An to the country designated in that order, officer authorized to issue an order of § 241.8 Reinstatement of removal orders. the alien shall be immediately referred supervision may, in his or her (a) Applicability. An alien who to an asylum officer to determine discretion, grant employment illegally reenters the United States after whether the alien’s removal to that authorization to an alien released under having been removed, or having country must be withheld under section an order of supervision if the officer departed voluntarily, while under an 241(b)(3) of the Act. The alien’s claim specifically finds that: order of exclusion, deportation, or will be granted or denied by an asylum (1) The alien cannot be removed removal shall be removed from the officer in accordance with § 208.16 of because no country will accept the United States by reinstating the prior this chapter. If the alien has previously alien; or order. The alien has no right to a had a claim to withholding of (2) The removal of the alien is hearing before an immigration judge in deportation or removal denied, then that impracticable or contrary to public such circumstances. In establishing decision shall prevail unless the alien interest. whether an alien is subject to this can establish the existence of changed section, the immigration officer shall circumstances that materially affect the § 241.6 Administrative stay of removal. determine the following: Any request of an alien under a final alien’s eligibility for withholding. The (1) Whether the alien has been subject alien’s case shall not be referred to an order of deportation or removal for a to a prior order of removal. The stay of deportation or removal shall be immigration judge, and there is no immigration officer must obtain the appeal from the decision of the asylum filed on Form I–246, Stay of Removal, prior order of exclusion, deportation, or with the district director having officer. If the alien is found to merit removal relating to the alien. withholding of removal, the Service jurisdiction over the place where the (2) The identity of the alien, i.e., alien is at the time of filing. The district shall not enforce the reinstated order. whether the alien is in fact an alien who (e) Execution of reinstated order. director, in his or her discretion and in was previously removed, or who Execution of the reinstated order of consideration of factors such as are departed voluntarily while under an removal and detention of the alien shall listed in § 212.5 of this chapter and order of exclusion, deportation, or be administered in accordance with this section 241(c) of the Act, may grant a removal. In disputed cases, verification part. stay of removal or deportation for such of identity shall be accomplished by a time and under such conditions as he or comparison of fingerprints between § 241.9 Notice to transportation line of she may deem appropriate. Neither the those of the previously excluded, alien's removal. request nor the failure to receive notice deported, or removed alien contained in (a) An alien who has been ordered of disposition of the request shall delay Service records and those of the subject removed shall, immediately or as removal or relieve the alien from strict alien. In the absence of fingerprints in promptly as the circumstances permit, compliance with any outstanding notice a disputed case the alien shall not be be offered for removal to the owner, to surrender for deportation or removal. removed pursuant to this paragraph. agent, master, commanding officer, Denial by the district director of a (3) Whether the alien unlawfully person in charge, purser, or consignee of request for a stay is not appealable, but reentered the United States. In making the vessel or aircraft on which the alien such denial shall not preclude an this determination, the officer shall is to be removed, as determined by the immigration judge or the Board from consider all relevant evidence, district director, with a written notice granting a stay in connection with a including statements made by the alien specifying the cause of inadmissibility motion to reopen or a motion to and any evidence in the alien’s or deportability, the class of travel in reconsider as provided in 8 CFR part 3. possession. The immigration officer which such alien arrived and is to be The Service shall take all reasonable shall attempt to verify an alien’s claim, removed, and with the return of any steps to comply with a stay granted by if any, that he or she was lawfully documentation that will assist in an immigration judge or the Board. admitted, which shall include a check effecting his or her removal. If special However, such a stay shall cease to have of Service data systems available to the care and attention are required, the effect if granted (or communicated) after officer. provisions of § 241.10 shall apply. the alien has been placed aboard an (b) Notice. If an officer determines (b) Failure of the carrier to accept for aircraft or other conveyance for removal that an alien is subject to removal under removal an alien who has been ordered and the normal boarding has been this section, he or she shall provide the removed shall result in the carrier being completed. alien with written notice of his or her assessed any costs incurred by the 10380 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Service for detention after the carrier’s § 241.11 Detention and removal of for repairs to the vessel, and other failure to accept the alien for removal, stowaways. similar circumstances. If the owner, including the cost of any transportation (a) Presentation of stowaways. The agent, master, commanding officer, as required under section 241(e) of the owner, agent, master, commanding charterer, or consignee requests that he Act. The User Fee Account shall not be officer, charterer, or consignee of a or she be allowed to remove the assessed for expenses incurred because vessel or aircraft (referred to in this stowaway by other means, the Service of the carrier’s violation of the section as the carrier) bringing any alien shall favorably consider any such provisions of section 241 of the Act and stowaway to the United States is request, provided the carrier has required to detain the stowaway on this paragraph. The Service will, at the obtained, or will obtain in a timely board the vessel or aircraft, at the manner, any necessary travel documents carrier’s option, retain custody of the expense of the owner of the vessel or and has made or will make all alien for an additional 7 days beyond aircraft, until completion of the transportation arrangements. The the date of the removal order. If, after inspection of the alien by an owner, agent, master, commanding the third day of this additional 7-day immigration officer. If detention on officer, charterer, or consignee shall period, the carrier has not made all the board the vessel or aircraft pending transport the stowaway or arrange for necessary transportation arrangements inspection is not possible, the carrier secure escort of the stowaway to the for the alien to be returned to his or her shall advise the Service of this fact vessel or aircraft of departure to ensure point of embarkation by the end of the without delay, and the Service may that the stowaway departs the United additional 7-day period, the Service will authorize that the carrier detain the States. All expenses relating to removal make the arrangements and bill the stowaway at another designated shall be borne by the owner. Other than carrier for its costs. location, at the expense of the owner, requiring compliance with the detention until the immigration officer arrives. No and removal requirements contained in § 241.10 Special care and attention of notice to detain the alien shall be section 241(d)(2) of the Act, the Service removable aliens. required. Failure to detain an alien shall not impose additional conditions When, in accordance with section stowaway pending inspection shall on the carrier regarding security 241(c)(3) of the Act, a transportation result in a civil penalty under section arrangements. Failure to comply with an line is responsible for the expenses of an 243(c)(1)(A) of the Act. The owner, order to remove an alien stowaway shall inadmissible or deportable alien’s agent, master, commanding officer, result in a civil penalty under section removal, and the alien requires special charterer, or consignee of a vessel or 243(c)(1)(A) of the Act. aircraft must present the stowaway for (2) Detention of stowaways ordered care and attention, the alien shall be inspection, along with any documents removed. If detention of the stowaway is delivered to the owner, agent, master, or evidence of identity or nationality in required pending removal on other than commanding officer, person in charge, the possession of the alien or obtained the vessel or aircraft of arrival, or if the purser, or consignee of the vessel or by the carrier relating to the alien stowaway is to be removed on the vessel aircraft on which the alien will be stowaway, and must provide any or aircraft of arrival but departure of the removed, who shall be given Forms I– available information concerning the vessel or aircraft is not imminent and 287, I–287A, and I–287B. The reverse of alien’s boarding or apprehension. circumstances preclude keeping the Form I–287A shall be signed by the (b) Removal of stowaways from vessel stowaway on board the vessel or officer of the vessel or aircraft to whom or aircraft for medical treatment. The aircraft, the Service shall take the the alien has been delivered and district director may parole an alien stowaway into Service custody. The immediately returned to the stowaway into the United States for owner is responsible for all costs of immigration officer effecting delivery. medical treatment, but the costs of maintaining and detaining the Form I–287B shall be retained by the detention and treatment of the alien stowaway pending removal, including receiving officer and subsequently filled stowaway shall be at the expense of the costs for stowaways seeking asylum as out by the agents or persons therein owner of the vessel or aircraft, and such described in paragraph (d) of this designated and returned by mail to the removal of the stowaway from the vessel section. Such costs will be limited to district director named on the form. The or aircraft does not relieve the carrier of those normally incurred in the transportation line shall at its own the requirement to remove the detention of an alien by the Service, expense forward the alien from the stowaway from the United States once including, but not limited to, housing, such medical treatment has been foreign port of disembarkation to the food, transportation, medical expenses, completed. and other reasonable costs incident to final destination specified on Form I– (c) Repatriation of stowaways—(1) the detention of the stowaway. The 287. The special care and attention shall Requirements of carrier. Following Service may require the posting of a be continued to such final destination, inspection, an immigration officer may bond or other surety to ensure payment except when the foreign public officers order the owner, agent, master, of costs of detention. decline to allow such attendant to commanding officer, charterer, or (d) Stowaways claiming asylum—(1) proceed and they take charge of the consignee of a vessel or aircraft bringing Referral for credible fear determination. alien, in which case this fact shall be any alien stowaway to the United States A stowaway who indicates an intention recorded by the transportation line on to remove the stowaway on the vessel or to apply for asylum or a fear of the reverse of Form I–287B. If the aircraft of arrival, unless it is persecution shall be removed from the transportation line fails, refuses, or impracticable to do so or other factors vessel or aircraft of arrival in accordance neglects to provide the necessary special exist which would preclude removal on with § 208.5(b) of this chapter. The care and attention or comply with the the same vessel or aircraft. Such factors immigration officer shall refer the alien directions of Form I–287, the district may include, but are not limited to, to an asylum officer for a determination director shall thereafter and without sanitation, health, and safety concerns of credible fear in accordance with notice employ suitable persons, at the for the crew and/or stowaway, whether section 235(b)(1)(B) of the Act and expense of the transportation line, and the stowaway is a female or a juvenile, § 208.30 of this chapter. The stowaway effect such removal. loss of insurance coverage on account of shall be detained in the custody of the the stowaway remaining aboard, need Service pending the credible fear Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10381 determination and any review thereof. establish to the satisfaction of the submit affidavits and briefs to support Parole of such alien, in accordance with district director in charge of the port of its claim. section 212(d)(5) of the Act, may be arrival that such costs should not be permitted only when the Attorney applied. The district director shall § 241.24 Notice to transportation line of alien's exclusion. General determines, in the exercise of afford the owner a reasonable time discretion, that parole is required to within which to submit affidavits and (a) An excluded alien shall, meet a medical emergency or is briefs to support the claim. There is no immediately or as promptly as the necessary for a legitimate law appeal from the decision of the district circumstances permit, be offered for enforcement objective. A stowaway who director. deportation to the master, commanding has established a credible fear of officer, purser, person in charge, agent, persecution in accordance with § 208.30 §§ 241.13Ð241.19 [Reserved] owner, or consignee of the vessel or of this chapter may be detained or aircraft on which the alien is to be Subpart BÐDeportation of Excluded paroled pursuant to § 212.5 of this deported, as determined by the district Aliens (for hearings commenced prior chapter during any consideration of the director, with a written notice to April 1, 1997) asylum application. In determining specifying the cause of exclusion, the whether to detain or parole the alien, § 241.20 Proceedings commenced prior to class of travel in which such alien the Service shall consider the likelihood April 1, 1997. arrived and is to be deported, and with that the alien will abscond or pose a Subpart B of 8 CFR part 241 applies the return of any documentation that security risk. to exclusion proceedings commenced will assist in effecting his or her (2) Costs of detention of asylum- prior to April 1, 1997. All references to deportation. If special care and attention seeking stowaways. The owner of the the Act contained in this subpart are are required, the provisions of § 241.10 vessel or aircraft that brought the references to the Act in effect prior to shall apply. (b) Failure of the carrier to accept for stowaway to the United States shall April 1, 1997. reimburse the Service for the costs of removal an alien who has been ordered maintaining and detaining the § 241.21 Stay of deportation of excluded excluded and deported shall result in stowaway pending a determination of alien. the carrier being assessed any costs credible fear under section 235(b)(1)(B) The district director in charge of the incurred by the Service for detention of the Act, up to a maximum period of port of arrival may stay the immediate after the carrier’s failure to accept the 72 hours. The owner is also responsible deportation of an excluded alien alien for removal including the cost of for the costs of maintaining and pursuant to sections 237 (a) and (d) of any transportation. The User Fee detaining the stowaway during the the Act under such conditions as he or Account shall not be assessed for period in which the stowaway is she may prescribe. expenses incurred because of the pursuing his or her asylum application, carrier’s violation of the provisions of for a maximum period of 15 working § 241.22 Notice to surrender for section 237 of the Act and this days, excluding Saturdays, Sundays, deportation. paragraph. The Service will, at the and holidays. The 15-day period shall An alien who has been finally carrier’s option, retain custody of the begin on the day following the day in excluded pursuant to 8 CFR part 240, excluded alien for an additional 7 days which the alien is determined to have subpart D may at any time surrender beyond the date of the deportation/ a credible fear of persecution by the himself or herself to the custody of the exclusion order. If, after the third day of asylum officer, or by the immigration Service and shall surrender to such this additional 7-day period, the carrier judge if such review was requested by custody upon notice in writing of the has not made all the necessary the alien pursuant to section time and place for his or her surrender. transportation arrangements for the 235(b)(1)(B)(iii)(III) of the Act, but not The Service may take the alien into excluded alien to be returned to his or later than 72 hours after the stowaway custody at any time. An alien taken into her point of embarkation by the end of was initially presented to the Service for custody either upon notice to surrender the additional 7-day period, the Service inspection. Following the determination or by arrest shall not be deported less will make the arrangements and bill the of credible fear, if the stowaway’s than 72 hours thereafter without his or carrier for its costs. application for asylum is not her consent thereto filed in writing with adjudicated within 15 working days, the the district director in charge of the § 241.25 Deportation. Service shall pay the costs of detention place of his or her detention. An alien (a) Definitions of terms. For the beyond this time period. If the in foreign contiguous territory shall be purposes of this section, the following stowaway is determined not to have a informed that he or she may remain terms mean: credible fear of persecution, or if the there in lieu of surrendering to the (1) Adjacent island—as defined in stowaway’s application for asylum is Service, but that he or she will be section 101(b)(5) of the Act. denied, including any appeals, the deemed to have acknowledged the (2) Foreign contiguous territory—any carrier shall be notified and shall execution of the order of exclusion and country sharing a common boundary arrange for repatriation of the stowaway deportation in his or her case upon his with the United States. at the expense of the owner of the vessel or her failure to surrender at the time (3) Residence in foreign contiguous or aircraft on which the stowaway and place prescribed. territory or adjacent island—any arrived. physical presence, regardless of intent, § 241.23 Cost of maintenance not in a foreign contiguous territory or an § 241.12 Nonapplication of costs of assessed. adjacent island if the government of detention and maintenance. A claim pursuant to section 237(a)(1) such territory or island agrees to accept The owner of a vessel or aircraft of the Act shall be established to the the alien. bringing an alien to the United States satisfaction of the district director in (4) Aircraft or vessel—any conveyance who claims to be exempt from payment charge of the port of arrival, from whose and other mode of travel by which of the costs of detention and adverse decision no appeal shall lie. arrival is effected. maintenance of the alien pursuant to The district director shall afford the line (5) Next available flight—the carrier’s section 241(c)(3)(B) of the Act shall a reasonable time within which to next regularly scheduled departure to 10382 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations the excluded alien’s point of purposes of that section, an order of PART 242Ð[REMOVED AND embarkation regardless of seat deportation, including an alternate RESERVED] availability. If the carrier’s next order of deportation coupled with an regularly scheduled departure to the order of voluntary departure, made by 106. Part 242 is removed and excluded aliens point of embarkation is the immigration judge in proceedings reserved. full, the carrier has the option of under 8 CFR part 240 shall become final PART 243Ð[REMOVED AND arranging for return transportation on upon dismissal of an appeal by the RESERVED] other carriers which service the Board of Immigration Appeals, upon excluded aliens point of embarkation. waiver of appeal, or upon expiration of 107. Part 243 is removed and (b) Place to which deported. Any alien the time allotted for an appeal when no reserved. (other than an alien crewmember or an appeal is taken; or, if such an order is alien who boarded an aircraft or vessel issued by the Board or approved by the PART 244ÐTEMPORARY PROTECTED in foreign contiguous territory or an Board upon certification, it shall be final STATUS FOR NATIONALS OF adjacent island) who is ordered as of the date of the Board’s decision. DESIGNATED STATES excluded shall be deported to the § 241.32 Warrant of deportation. 108. The heading for part 244 is country where the alien boarded the revised as set forth above. vessel or aircraft on which the alien A Form I–205, Warrant of 109. The authority citation for part arrived in the United States. If that Deportation, based upon the final 244 is revised to read as follows: country refuses to accept the alien, the administrative order of deportation in the alien’s case shall be issued by a Authority: 8 U.S.C. 1103, 1254, 1254a note, alien shall be deported to: 8 CFR part 2. (1) The country of which the alien is district director. The district director a subject, citizen, or national; shall exercise the authority contained in §§ 244.1 and 244.2 [Removed] (2) The country where the alien was section 243 of the Act to determine at 110. Sections 244.1 and 244.2 are born; whose expense the alien shall be removed. (3) The country where the alien has a deported and whether his or her mental residence; or or physical condition requires personal §§ 244.3 through 244.22 [Redesignated as (4) Any country willing to accept the care and attention en route to his or her §§ 244.1 through 244.20] alien. destination. 111. Newly designated §§ 244.3 (c) Contiguous territory and adjacent through 244.22 are further redesignated islands. Any alien ordered excluded § 241.33 Expulsion. as §§ 244.1 through 244.20, respectively. who boarded an aircraft or vessel in (a) Execution of order. Except in the foreign contiguous territory or in any exercise of discretion by the district PART 245ÐADJUSTMENT OF STATUS adjacent island shall be deported to director, and for such reasons as are set TO THAT OF PERSON ADMITTED FOR such foreign contiguous territory or forth in § 212.5(a) of this chapter, once PERMANENT RESIDENCE adjacent island if the alien is a native, an order of deportation becomes final, 112. The authority citation for part citizen, subject, or national of such an alien shall be taken into custody and 245 is revised to read as follows: foreign contiguous territory or adjacent the order shall be executed. For the island, or if the alien has a residence in purposes of this part, an order of Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2. such foreign contiguous territory or deportation is final and subject to adjacent island. Otherwise, the alien execution upon the date when any of 113. Section 245.1 is amended by: shall be deported, in the first instance, the following occurs: a. Removing the word ‘‘and’’ at the to the country in which is located the (1) A grant of voluntary departure end of the paragraph (c)(3); port at which the alien embarked for expires; b. Removing the ‘‘.’’ at the end of such foreign contiguous territory or (2) An immigration judge enters an paragraphs (c)(4) through (c)(7), and adjacent island. order of deportation without granting replacing it with a ‘‘;’’; (d) Land border pedestrian arrivals. voluntary departure or other relief, and c. Redesignating paragraph (c)(8) as Any alien ordered excluded who arrived the alien respondent waives his or her paragraph (c)(9); at a land border on foot shall be right to appeal; d. Adding a new paragraph (c)(8); e. Revising newly redesignated deported in the same manner as if the (3) The Board of Immigration Appeals enters an order of deportation on paragraph (c)(9) introductory text; alien had boarded a vessel or aircraft in f. Revising newly redesignated appeal, without granting voluntary foreign contiguous territory. paragraphs (c)(9)(i) through (c)(9)(iii); departure or other relief; or §§ 241.26±241.29 [Reserved] (4) A Federal district or appellate and by g. Revising paragraph (f), to read as court affirms an administrative order of follows: Subpart CÐDeportation of Aliens in deportation in a petition for review or the United States (for hearings habeas corpus action. § 245.1 Eligibility. commenced prior to April 1, 1997) (b) Service of decision. In the case of * * * * * § 241.30 Proceedings commenced prior to an order entered by any of the (c) * * * April 1, 1997. authorities enumerated above, the order (8) Any arriving alien who is in Subpart C of 8 CFR part 241 applies shall be executed no sooner than 72 removal proceedings pursuant to section to deportation proceedings commenced hours after service of the decision, 235(b)(1) or section 240 of the Act; and prior to April 1, 1997. All references to regardless of whether the alien is in (9) Any alien who seeks to adjust the Act contained in this subpart are Service custody, provided that such status based upon a marriage which references to the Act in effect prior to period may be waived on the knowing occurred on or after November 10, 1986, April 1, 1997. and voluntary request of the alien. and while the alien was in exclusion, Nothing in this paragraph shall be deportation, or removal proceedings, or § 241.31 Final order of deportation. construed, however, to preclude judicial proceedings relating thereto. Except as otherwise required by assumption of custody by the Service at (i) Commencement of proceedings. section 242(c) of the Act for the specific the time of issuance of the final order. The period during which the alien is in Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10383 deportation, exclusion, or removal consideration was given (other than to permit the applicant’s absence and proceedings or judicial proceedings an attorney for assistance in preparation return to pursue the previously filed relating thereto, commences: of a lawful petition) for the filing of a adjustment application. (A) With the issuance of the Form I– petition. * * * * * 221, Order to Show Cause and Notice of * * * * * (4) * * * Hearing prior to June 20, 1991; (f) Concurrent applications to (ii) Under section 245 of the Act. The (B) With the filing of a Form I–221, overcome grounds of inadmissibility. departure from the United States of an Order to Show Cause and Notice of Except as provided in 8 CFR parts 235 applicant who is under exclusion, Hearing, issued on or after June 20, and 249, an application under this part deportation, or removal proceedings 1991, with the Immigration Court; shall be the sole method of requesting shall be deemed an abandonment of the (C) With the issuance of Form I–122, the exercise of discretion under sections application constituting grounds for Notice to Applicant for Admission 212(g), (h), (i), and (k) of the Act, as they termination of the proceeding by reason Detained for Hearing Before relate to the inadmissibility of an alien of the departure. The departure of an Immigration Judge, prior to April 1, in the United States. No fee is required applicant who is not under exclusion, 1997, for filing an application to overcome the deportation, or removal proceedings (D) With the filing of a Form I–862, grounds of inadmissibility of the Act if shall be deemed an abandonment of his Notice to Appear, with the Immigration filed concurrently with an application or her application constituting grounds Court, or for adjustment of status under the for termination, unless the applicant (E) With the issuance and service of provisions of the Act of October 28, was previously granted advance parole Form I–860, Notice and Order of 1977, and of this part. by the Service for such absence, and Expedited Removal. * * * * * was inspected upon returning to the (ii) Termination of proceedings. The United States. If the application of an period during which the alien is in 114. Section 245.2 is amended by: a. Revising paragraph (a)(1); individual granted advance parole is exclusion, deportation, or removal subsequently denied, the applicant will proceedings, or judicial proceedings b. Revising paragraph (a)(4)(ii); c. Revising paragraph (a)(5)(ii) and be treated as an applicant for admission, relating thereto, terminates: and subject to the provisions of sections (A) When the alien departs from the (iii); and by 212 and 235 of the Act. United States while an order of d. Revising paragraph (c), to read as exclusion, deportation, or removal is follows: * * * * * (5) * * * outstanding or before the expiration of § 245.2 Application. the voluntary departure time granted in (ii) Under section 245 of the Act. If the (a) * * * (1) Jurisdiction. An alien connection with an alternate order of application is approved, the applicant’s who believes he or she meets the deportation or removal; permanent residence shall be recorded (B) When the alien is found not to be eligibility requirements of section 245 of as of the date of the order approving the inadmissible or deportable from the the Act or section 1 of the Act of adjustment of status. An application for United States; November 2, 1966, and § 245.1 shall adjustment of status, as a preference (C) When the Form I–122, I–221, I– apply to the director having jurisdiction alien, shall not be approved until an 860, or I–862 is canceled; over his or her place of residence unless immigrant visa number has been (D) When proceedings are terminated otherwise instructed in 8 CFR part 245, allocated by the Department of State, by the immigration judge or the Board or by the instruction on the application except when the applicant has of Immigration Appeals; or form. After an alien, other than an established eligibility for the benefits of (E) When a petition for review or an arriving alien, is in deportation or Public Law 101–238. No appeal lies action for habeas corpus is granted by a removal proceedings, his or her from the denial of an application by the Federal court on judicial review. application for adjustment of status director, but the applicant, if not an (iii) Exemptions. This prohibition under section 245 of the Act or section arriving alien, retains the right to renew shall no longer apply if: 1 of the Act of November 2, 1966 shall his or her application in proceedings (A) The alien is found not to be be made and considered only in those under 8 CFR part 240. Also, an inadmissible or deportable from the proceedings. An arriving alien, other applicant who is a parolee and meets United States; than an alien in removal proceedings, the two conditions described in (B) Form I–122, I–221, I–860, or I– who believes he or she meets the § 245.2(a)(1) may renew a denied 862, is canceled; eligibility requirements of section 245 of application in proceedings under 8 CFR (C) Proceedings are terminated by the the Act or section 1 of the Act of part 240 to determine admissibility. At immigration judge or the Board of November 2, 1966, and § 245.1 shall the time of renewal of the application, Immigration Appeals; apply to the director having jurisdiction an applicant does not need to meet the (D) A petition for review or an action over his or her place of arrival. An statutory requirement of section 245(c) for habeas corpus is granted by a adjustment application by an alien of the Act, or § 245.1(g), if, in fact, those Federal court on judicial review; paroled under section 212(d)(5) of the requirements were met at the time the (E) The alien has resided outside the Act, which has been denied by the renewed application was initially filed United States for 2 or more years director, may be renewed in removal with the director. Nothing in this following the marriage; or proceedings under 8 CFR part 240 only section shall entitle an alien to (F) The alien establishes the marriage if: proceedings under section 240 of the is bona fide by providing clear and (i) The denied application must have Act who is not otherwise so entitled. convincing evidence that the marriage been properly filed subsequent to the (iii) Under the Act of November 2, was entered into in good faith and in applicant’s earlier inspection and 1966. If the application is approved, the accordance with the laws of the place admission to the United States; and applicant’s permanent residence shall where the marriage took place, was not (ii) The applicant’s later absence from be recorded in accordance with the entered into for the purpose of and return to the United States was provisions of section 1. No appeal lies procuring the alien’s entry as an under the terms of an advance parole from the denial of an application by the immigrant, and no fee or other authorization on Form I–512 granted to director, but the applicant, if not an 10384 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations arriving alien, retains the right to renew Active Duty, from the appropriate (6) Remits the sum specified in his or her application in proceedings executive department for verification of section 245(i) of the Act, unless under 8 CFR part 240. Also, an the alien’s failure to maintain eligibility. payment of the sum is waived under applicant who is a parolee and meets * * * * * section 245(i) of the Act; and the two conditions described in 117. Section 245.9 is amended by * * * * * § 245.2(a)(1) may renew a denied revising paragraphs (d) and (m), to read (b) Payment of additional sum. An application in proceedings under 8 CFR as follows: applicant filing under the provisions of part 240 to determine admissibility. section 245(i) of the Act must pay the * * * * * § 245.9 Adjustment of Status of Certain standard adjustment of status filing fee, (c) Application under section 214(d) Nationals of the People's Republic of China as shown on Form I–485 and contained under Public Law 102±404. of the Act. An application for in § 103.7(b)(1) of this chapter. The permanent resident status pursuant to * * * * * applicant must also pay the additional section 214(d) of the Act shall be filed (d) Waivers of inadmissibility under sum specified in section 245(i) of the on Form I–485 with the director having section 212(a) of the Act. An applicant Act, unless at the time the application jurisdiction over the applicant’s place of for the benefits of the adjustment of for adjustment of status is filed, the residence. A separate application shall status provisions of Pub. L. 102–404 is alien is: automatically exempted from be filed by each applicant. If the * * * * * application is approved, the director compliance with the requirements of 119. Section 245.11 is amended by: shall record the lawful admission of the sections 212(a)(5) and 212(a)(7)(A) of a. Revising paragraph (a)(4)(ii)(B); applicant as of the date of approval. The the Act. A Pub. L. 102–404 applicant b. Revising paragraph (b)(1)(iii); applicant shall be notified of the may also apply for one or more waivers c. Revising the introductory text in decision and, if the application is of inadmissibility under section 212(a) paragraph (c); and by denied, of the reasons therefor. No of the Act, except for inadmissibility d. Revising paragraphs (h) and (i), to appeal shall lie from the denial of an under section 212(a)(2)(C), 212(a)(3)(A), read as follows: application by the director but such 212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E) denial shall be without prejudice to the of the Act. § 245.11 Adjustment of aliens in S alien’s right to renew his or her * * * * * nonimmigrant classification. application in proceedings under 8 CFR (m) Effect of enactment on family (a) * * * part 240. members other than qualified family (4) * * * 115. Section 245.5 is amended by members. The adjustment of status (ii) * * * revising the first sentence to read as benefits and waivers provided by Pub. (B) Be admissible to the United States follows: L. 102–404 do not apply to a spouse or as an immigrant, unless the ground of child who is not a qualified family inadmissibility has been waived; § 245.5 Medical examination. member as defined in paragraph (c) of * * * * * Pursuant to section 232(b) of the Act, this section. However, a spouse or child (b) * * * an applicant for adjustment of status whose relationship to the principal (1) * * * shall be required to have a medical alien was established prior to the (iii) The family member is not examination by a designated civil approval of the principal’s adjustment inadmissible from the United States as surgeon, whose report setting forth the of status application may be accorded a participant in Nazi persecution or findings of the mental and physical the derivative priority date and genocide as described in section condition of the applicant, including preference category of the principal 212(a)(3)(E) of the Act; compliance with section 212(a)(1)(A)(ii) alien, in accordance with the provisions * * * * * of the Act, shall be incorporated into the of section 203(d) of the Act. The spouse (c) Waivers of inadmissibility. An record. * * * or child may use the priority date and alien seeking to adjust status pursuant 116. Section 245.8 is amended by category when it becomes current, in to the provisions of section 101(a)(15)(S) revising paragraph (e), to read as accordance with the limitations set forth of the Act may not be denied adjustment follows: in sections 201 and 202 of the Act. of status for conduct or a condition that: § 245.8 Adjustment of status as a special Persons who are unable to maintain * * * * * immigrant under section 101(a)(27)(K) of the lawful nonimmigrant status in the (h) Removal under section 237 of the Act. United States and are not immediately Act. Nothing in this section shall * * * * * eligible to apply for adjustment of status prevent an alien adjusted pursuant to (e) Removal provisions of section 237 may request voluntary departure the terms of these provisions from being of the Act. If the Service is made aware pursuant to 8 CFR part 240. removed for conviction of a crime of by notification from the appropriate 118. Section 245.10 is amended by: moral turpitude committed within 10 executive department or by any other a. Revising paragraphs (a) (3) and (6); years after being provided lawful means that a section 101(a)(27)(K) and by permanent residence under this section special immigrant who has already been b. Revising introductory text in or for any other ground under section granted permanent residence fails to paragraph (b), to read as follows: 237 of the Act. complete his or her total active duty (i) Denial of application. In the event service obligation for reasons other than § 245.10 Adjustment of status upon the district director decides to deny an an honorable discharge, the alien may payment of additional sum under Public application on Form I–485 and an Law 103±317. become subject to the removal approved Form I–854 to allow an S provisions of section 237 of the Act, (a) * * * nonimmigrant to adjust status, the provided the alien is in one or more of (3) Is not inadmissible from the Assistant Attorney General, Criminal the classes of deportable aliens specified United States under any provision of Division, and the relevant LEA shall be in section 237 of the Act. The Service section 212 of the Act, or all grounds for notified in writing to that effect. The shall obtain a current Form DD–214, inadmissibility have been waived; Assistant Attorney General, Criminal Certificate of Release or Discharge from * * * * * Division, shall concur in or object to Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10385 that decision. Unless the Assistant behalf as may be relevant to the the respondent and other witnesses. The Attorney General, Criminal Division, rescission. Service counsel is authorized to appeal objects within 7 days, he or she shall be from a decision of the immigration deemed to have concurred in the § 246.2 Allegations admitted; no answer filed; no hearing requested. judge pursuant to § 246.7 and to move decision. In the event of an objection by for reopening or reconsideration If the answer admits the allegations in the Assistant Attorney General, pursuant to § 3.23 of this chapter. Criminal Division, the matter will be the notice, or if no answer is filed (b) Opening. The immigration judge expeditiously referred to the Deputy within the thirty-day period, or if no shall advise the respondent of the Attorney General for a final resolution. hearing is requested within such period, the district director shall rescind the nature of the proceeding and the legal In no circumstances shall the alien or adjustment of status previously granted, the relevant LEA have a right of appeal authority under which it is conducted; and no appeal shall lie from his from any decision to deny. A denial of advise the respondent of his or her right decision. an adjustment application under this to representation, at no expense to the paragraph may not be renewed in § 246.3 Allegations contested or denied; Government, by counsel or subsequent removal proceedings. hearing requested. representative of his or her own choice If, within the prescribed time qualified under part 292 of this chapter 120. Part 246 is revised to read as and require him or her to state then and follows: following service of the notice pursuant to § 246.1, the respondent has filed an there whether he or she desires PART 246ÐRESCISSION OF answer which contests or denies any representation; advise the respondent ADJUSTMENT OF STATUS allegation in the notice, or a hearing is that he or she will have a reasonable requested, a hearing pursuant to § 246.5 opportunity to examine and object to Sec. shall be conducted by an immigration the evidence against him or her, to 246.1 Notice. judge, and the requirements contained present evidence in his or her own 246.2 Allegations admitted; no answer in §§ 240.3, 240.4, 240.5, 240.6, 240.7, behalf, and to cross-examine witnesses filed; no hearing requested. and 240.9 of this chapter shall be presented by the Government; place the 246.3 Allegations contested or denied; respondent under oath; read the hearing requested. followed. 246.4 Immigration judge’s authority; allegations in the notice to the § 246.4 Immigration judge's authority; respondent and explain them in withdrawal and substitution. withdrawal and substitution. nontechnical language, and enter the 246.5 Hearing. In any proceeding conducted under 246.6 Decision and order. notice and respondent’s answer, if any, this part, the immigration judge shall 246.7 Appeals. as exhibits in the record. have authority to interrogate, examine, 246.8 [Reserved] (c) Pleading by respondent. The 246.9 Surrender of Form I–551. and cross-examine the respondent and other witnesses, to present and receive immigration judge shall require the Authority: Authority: 8 U.S.C. 1103, 1254, evidence, to determine whether respondent to state for the record 1255, 1256, 1259; 8 CFR part 2. adjustment of status shall be rescinded, whether he or she admits or denies the § 246.1 Notice. to make decisions thereon, including an allegations contained in the notice, or appropriate order, and to take any other any of them, and whether he or she If it appears to a district director that action consistent with applicable concedes that his or her adjustment of a person residing in his or her district provisions of law and regulations as status should be rescinded. If the was not in fact eligible for the may be appropriate to the disposition of respondent admits all of the allegations adjustment of status made in his or her the case. Nothing contained in this part and concedes that the adjustment of case, a proceeding shall be commenced shall be construed to diminish the status in his or her case should be by the personal service upon such authority conferred on immigration rescinded under the allegations set forth person of a notice of intent to rescind judges by the Act. The immigration in the notice, and the immigration judge which shall inform him or her of the judge assigned to conduct a hearing is satisfied that no issues of law or fact allegations upon which it is intended to shall, at any time, withdraw if he or she remain, he or she may determine that rescind the adjustment of his or her deems himself or herself disqualified. If rescission as alleged has been status. In such a proceeding the person a hearing has begun but no evidence has established by the respondent’s shall be known as the respondent. The been adduced other than the notice and admissions. The allegations contained notice shall also inform the respondent answer, if any, pursuant to §§ 246.1 and in the notice shall be taken as admitted that he or she may submit, within thirty 246.2, or if an immigration judge when the respondent, without days from the date of service of the becomes unavailable to complete his or reasonable cause, fails or refuses to notice, an answer in writing under oath her duties within a reasonable time, or setting forth reasons why such attend or remain in attendance at the if at any time the respondent consents hearing. rescission shall not be made, and that he to a substitution, another immigration or she may, within such period, request judge may be assigned to complete the § 246.6 Decision and order. a hearing before an immigration judge in case. The new immigration judge shall The decision of the immigration judge support of, or in lieu of, his or her familiarize himself or herself with the may be oral or written. The formal written answer. The respondent shall record in the case and shall state for the enumeration of findings is not required. further be informed that he or she may record that he or she is familiar with the have the assistance of or be represented record in the case. The order shall direct either that the by counsel or representative of his or proceeding be terminated or that the her choice qualified under part 292 of § 246.5 Hearing. adjustment of status be rescinded. this chapter, at no expense to the (a) Service counsel. The Government Service of the decision and finality of Government, in the preparation of his or shall be represented at the hearing by a the order of the immigration judge shall her answer or in connection with his or Service counsel who shall have be in accordance with, and as stated in her hearing, and that he or she may authority to present evidence, and to §§ 240.13 (a) and (b) and 240.14 of this present such evidence in his or her interrogate, examine, and cross-examine chapter. 10386 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 246.7 Appeals. application is denied, of the reasons exception, the vessel must either be a Pursuant to 8 CFR part 3, an appeal therefor. If the application is granted, a tanker or be transporting dry bulk cargo shall lie from a decision of an Form I–551, showing that the applicant that qualifies as hazardous. All tankers immigration judge under this part to the has acquired the status of an alien qualify for the hazardous cargo Board of Immigration Appeals. An lawfully admitted for permanent exception, except for a tanker that has appeal shall be taken within 30 days residence, shall not be issued until the been gas-freed to load non-hazardous after the mailing of a written decision or applicant surrenders any other dry bulk commodities. the stating of an oral decision. The document in his or her possession (A) To invoke the exception for reasons for the appeal shall be evidencing compliance with the alien tankers, the master or agent shall note specifically identified in the Notice of registration requirements of former or on the manifest that the vessel is a Appeal (Form EOIR 26); failure to do so existing law. No appeal shall lie from qualifying tanker. may constitute a ground for dismissal of the denial of an application by the (B) If the vessel is transporting dry the appeal by the Board. district director. However, an alien, bulk hazardous cargo, the master or other than an arriving alien, may renew § 246.8 [Reserved] agent shall note on the manifest that the the denied application in proceedings vessel’s dry bulk cargo is hazardous and § 246.9 Surrender of Form I±551. under 8 CFR part 240. shall show the immigration officer the A respondent whose status as a dangerous cargo manifest that is signed PART 251ÐARRIVAL MANIFESTS AND permanent resident has been rescinded by the master or an authorized LISTS: SUPPORTING DOCUMENTS in accordance with section 246 of the representative of the owner, and that Act and this part, shall, upon demand, 125. The authority citation for part under 46 CFR 148.02 must be kept in a promptly surrender to the district 251 is revised to read as follows: conspicuous place near the bridge director having administrative Authority: 8 U.S.C. 1103, 1182, 1221, 1281, house. jurisdiction over the office in which the 1282, 8 CFR part 2. (iv) If longshore work will be action under this part was taken, the performed under the prevailing practice 126. Section 251.1 is revised to read Form I–551 issued to him or her at the exception, the master or agent shall note as follows: time of the grant of permanent resident on the manifest each port at which status. § 251.1 Arrival manifests and lists. longshore work will be performed under (a) Vessels—(1) General. The master this exception. Additionally, for each PART 248ÐCHANGE OF port the master or agent shall note either NONIMMIGRANT CLASSIFICATION or agent of every vessel arriving in the United States from a foreign place or an that: 121. The authority citation for part outlying possession of the United States (A) The practice of nonimmigrant 248 continues to read as follows: shall present to the immigration officer crewmen doing longshore work is in Authority: 8 U.S.C. 1101, 1103, 1184, 1187, at the port where the immigration accordance with all collective 1258; 8 CFR part 2. inspection is performed a manifest of all bargaining agreements covering 30 percent or more of the longshore 122. Section 248.1 is amended by crewmen on board on Form I–418, workers in the port; revising paragraph (b)(4) to read as Passenger List and Crew List, in follows: accordance with the instructions (B) The port has no collective contained thereon. bargaining agreement covering 30 § 248.1 Eligibility. (2) Longshore work notations. The percent or more of the longshore * * * * * master or agent of the vessel shall workers in the port and an attestation (b) * * * indicate in writing immediately below has been filed with the Secretary of (4) The alien is not the subject of the name of the last alien listed on the Labor; removal proceedings under 8 CFR part Form I–418 whether or not crewmen (C) An attestation that was previously 240. aboard the vessel will be used to filed is still valid and the vessel * * * * * perform longshore work at any United continues to comply with the conditions States port before the vessel departs the stated in that attestation; or PART 249ÐCREATION OF RECORDS United States. (D) The longshore work consists of OF LAWFUL ADMISSION FOR (i) If no longshore work will be operating an automated, self-unloading PERMANENT RESIDENCE performed, no further notation regarding conveyor belt or a vacuum-actuated longshore work is required. system. 123. The authority citation for part (ii) If longshore work will be 249 is revised to read as follows: performed, the master or agent shall (v) If longshore work will be Authority: 8 U.S.C. 1103, 1182, 1259; 8 note which exception listed in section performed under the reciprocity CFR part 2. 258 of the Act permits the work. The exception, the master or agent shall note on the manifest that the work will be 124. Section 249.2 is amended by exceptions are: done under the reciprocity exception, revising the first sentence in paragraph (A) The hazardous cargo exception; and will note the nationality of the (a) and by revising paragraph (b), to read (B) The prevailing practice exception vessel’s registry and the nationality or as follows: in accordance with a port’s collective bargaining agreements; nationalities of the holders of a majority § 249.2 Application. (C) The prevailing practice exception of the ownership interest in the vessel. (a) Jurisdiction. An application by an at a port where there is no collective (3) Exception for certain Great Lakes alien, other than an arriving alien, who bargaining agreement, but for which the vessels. (i) A manifest shall not be has been served with a notice to appear vessel files an attestation; required for a vessel of United States, or warrant of arrest shall be considered (D) The prevailing practice exception Canadian, or British registry engaged only in proceedings under 8 CFR part for automated vessels; and solely in traffic on the Great Lakes or the 240. * * * (E) The reciprocity exception. St. Lawrence River and connecting (b) Decision. The applicant shall be (iii) If longshore work will be waterways, herein designated as a Great notified of the decision and, if the performed under the hazardous cargo Lakes vessel, unless: Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10387

(A) The vessel employs nonimmigrant of United States citizen crewmembers 418 completed in accordance with the crewmen who will do longshore work at and total number of alien crewmembers. instructions on the form. Submission of a port in the United States; or (c) Additional documents. The a Form I–418 that lacks any required (B) The vessel employs crewmen of master, captain, or agent shall prepare endorsement shall be regarded as lack of other than United States, Canadian, or as a part of the manifest, when one is compliance with section 251(c) of the British citizenship. required for presentation to an Act. (ii) In either situation, the master shall immigration officer, a completely (b) Exception for certain Great Lakes note the manifest in the manner executed set of Forms I–95, Conditional vessels. The required list need not be prescribed in paragraph (a)(2) of this Landing Permit, for each nonimmigrant submitted for Canadian or British section. alien crewman on board, except: crewmembers of Great Lakes vessels (iii) After submission of a manifest on (1) A Canadian or British citizen described in § 251.1(a)(3). the first voyage of a calendar year, a crewman serving on a vessel plying 129. Section 251.4 is revised to read manifest shall not be required on solely between Canada and the United as follows: subsequent arrivals unless a States; or nonimmigrant crewman of other than (2) A nonimmigrant crewman who is § 251.4 Departure manifests and lists for Canadian or British citizenship is in possession of an unmutilated Form I– aircraft. employed on the vessel who was not 184, Alien Crewman Landing Permit (a) United States Customs Service aboard and listed on the last prior and Identification Card, or an Form 7507 or International Civil manifest, or a change has occurred unmutilated Form I–95 with space for Aviation Organization’s General regarding the performance of longshore additional endorsements previously Declaration. The captain or agent of work in the United States by issued to him or her as a member of the every aircraft departing from the United nonimmigrant crewmen, or a change has crew of the same vessel or an aircraft of States for a foreign place or an outlying occurred in the exception that the the same line on his or her last prior possession of the United States, except master or agent of the vessel wishes to arrival in the United States, following on a flight departing for and terminating invoke which was not noted on the last which he or she departed from the in Canada, shall submit to the prior manifest. United States as a member of the crew immigration officer at the port from (4) The master or agent of a vessel that of the same vessel or an aircraft of the which such aircraft is to depart a only bunkers at a United States port en same line. completed United States Customs route to another United States port shall 127. Section 251.2 is revised to read Service Form 7507 or the International annotate Form I–418 presented at the as follows: Civil Aviation Organization’s General onward port to indicate the time, date, Declaration. The form shall contain a and place of bunkering. § 251.2 Notification of illegal landings. list of all alien crewmen on board, (5) If documentation is required to As soon as discovered, the master or including alien crewmen who arrived in support an exception, as described in agent of any vessel from which an alien the United States as crewmen on an § 258.2 of this chapter, it must crewman has illegally landed or aircraft of the same line and who are accompany the manifest. deserted in the United States shall departing as passengers. The surname, (b) Aircraft. The captain or agent of inform the immigration officer in charge given name, and middle initial of each every aircraft arriving in the United of the port where the illegal landing or such alien crewman listed shall be States from a foreign place or from an desertion occurred, in writing, of the shown. In addition, the captain or agent outlying possession of the United States, name, nationality, passport number and, of the aircraft shall indicate the total except an aircraft arriving in the United if known, the personal description, number of alien crewmembers and the States directly from Canada on a flight circumstances and time of such illegal total number of United States citizen originating in that country, shall present landing or desertion of such alien crewmembers. to the immigration officer at the port crewman, and furnish any other (b) Notification of changes in where the inspection is performed a information and documents that might employment for aircraft. The agent of manifest on United States Customs aid in his or her apprehension, the air transportation line shall Service Form 7507 or on the including any passport surrendered immediately notify in writing the International Civil Aviation pursuant to § 252.1(d) of this chapter. nearest immigration office of the Organization’s General Declaration of all Failure to file notice of illegal landing termination of employment in the the alien crewmembers on board, or desertion and to furnish any United States of each alien employee of including alien crewmembers who are surrendered passport within 24 hours of the line furnishing the name, birth date, returning to the United States after the time of such landing or desertion birthplace, nationality, passport taking an aircraft of the same line from becomes known shall be regarded as number, and other available information the United States to a foreign place or lack of compliance with section 251(d) concerning such alien. The procedure to alien crewmembers who are entering the of the Act. follow in obtaining permission to pay United States as passengers solely for 128. Section 251.3 is revised to read off or discharge an alien crewman in the the purpose of taking an aircraft of the as follows: United States after initial immigration same line from the United States to a inspection, other than an alien lawfully foreign port. The captain or agent of an § 251.3 Departure manifests and lists for admitted for permanent residence, is set vessels. aircraft that only refuels at the United forth in § 252.1(f) of this chapter. States en route to another United States (a) Form I–418, Passenger List-Crew 130. Section 251.5 is revised to read port must annotate the manifest List. The master or agent of every vessel as follows: presented at the onward port to indicate departing from the United States shall the time, date, and place of refueling. submit to the immigration officer at the § 251.5 Exemptions for private vessels and The surname, given name, and middle port from which such vessel is to depart aircraft. initial of each alien crewman listed also directly to some foreign place or The provisions of this part relating to shall be shown on the manifest. In outlying possession of the United States, submission of arrival and departure addition, the captain or agent of the except when a manifest is not required manifests and lists shall not apply to a aircraft shall indicate the total number pursuant to § 251.1(a), a single Form I– private vessel or a private aircraft not 10388 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations engaged directly or indirectly in the § 252.2 Revocation of conditional landing company during the current calendar carriage of persons or cargo for hire. permits; removal. year. (a) Revocation and removal while (b) Canadian or British vessels or PART 252ÐLANDING OF ALIEN vessel is in the United States. A tugboats. An alien crewman need not be CREWMEN crewman whose landing permit is presented for inspection if the alien 131. The authority citation for part subject to revocation pursuant to section crewman: (1) Serves aboard a Great Lakes vessel 252 is revised to read as follows: 252(b) of the Act may be taken into custody by any immigration officer of Canadian or British registry or aboard Authority: 8 U.S.C. 1103, 1184, 1258, 1281, a tugboat of Canadian or British registry 1282; 8 CFR part 2. without a warrant of arrest and be transferred to the vessel of arrival, if the arriving at a United States port-of-entry 132. Section 252.1 is amended by vessel is in any port in the United States from Canada; (2) Seeks admission for a period of revising paragraphs (a) through (c) to and has not departed foreign since the read as follows: less than 29 days; crewman was issued his or her (3) Has, during the current calendar § 252.1 Examination of crewmen. conditional landing permit. Detention year, been inspected and admitted by an (a) Detention prior to examination. and removal of the crewman shall be at immigration officer as a member of the All persons employed in any capacity the expense of the transportation line on crew of the same vessel or tugboat, or on board any vessel or aircraft arriving which the crewman arrived. Removal of any other vessel or tugboat of the in the United States shall be detained on may be effected on the vessel of arrival same company; board the vessel or at the airport of or, if the master of the vessel has (4) Is either a British or Canadian arrival by the master or agent of such requested in writing, by alternate means citizen or is in possession of a valid vessel or aircraft until admitted or if removal on the vessel of arrival is Form I–95 previously issued to him or otherwise permitted to land by an impractical. her as a member of the crew of the same officer of the Service. (b) Revocation and removal after vessel or tugboat, or of any other vessel (b) Classes of aliens subject to vessel has departed the United States. A or tugboat of the same company; examination under this part. The crewman who was granted landing (5) Does not request or require landing examination of every nonimmigrant privileges prior to April 1, 1997, and privileges in the United States beyond alien crewman arriving in the United who has not departed foreign on the the time the vessel or tugboat will be in States shall be in accordance with this vessel of arrival, or on another vessel or port; and, part except that the following classes of aircraft if such permission was granted (6) Will depart to Canada with the persons employed on vessels or aircraft pursuant to § 252.1(f), is subject to vessel or tugboat. shall be examined in accordance with removal proceedings under section 240 135. Section 252.4 is revised to read the provisions of 8 CFR parts 235 and of the Act as an alien deportable as follows: 240: pursuant to section 237(a)(1)(C)(i) of the § 252.4 Permanent landing permit and (1) Canadian or British citizen Act. A crewman who was granted identification card. crewmen serving on vessels plying landing privileges on or after April 1, A Form I–184 is valid until revoked. solely between Canada and the United 1997, and who has not departed foreign It shall be revoked when an immigration States; or on the vessel of arrival, or on another officer finds that the crewman is in the (2) Canadian or British citizen vessel or aircraft if such permission was United States in willful violation of the crewmen of aircraft arriving in a State granted pursuant to § 252.1(f), shall be terms and conditions of his or her of the United States directly from removed from the United States without permission to land, or that he or she is Canada on flights originating in that a hearing, except as provided in inadmissible to the United States. On country. The crew of a vessel arriving at § 208.2(b)(1) of this chapter. In either revocation, the Form I–184 shall be a United States port that may not case, if the alien is removed within 5 surrendered to an immigration officer. require inspection by or clearance from years of the date of landing, removal of No appeal shall lie from the revocation the United States Customs Service is, the crewman shall be at the expense of of Form I–184. nevertheless, subject to examination the owner of the vessel. In the case of 136. Section 252.5 is revised to read under this part; however, the master of a crewman ordered removed more than as follows: such a vessel is not required to present 5 years after the date of landing, Form I–95 for any crewman who is not removal shall be at the expense of the § 252.5 Special procedures for deserters an applicant for a conditional landing appropriation for the enforcement of the from Spanish or Greek ships of war. permit. Act. (a) General. Under E.O. 11267 of (c) Requirements for landing permits. 134. Section 252.3 is revised to read January 19, 1966 (31 FR 807) and 28 Every alien crewman applying for as follows: CFR 0.109, and E.O. 11300 of August 17, landing privileges in the United States 1966, (31 FR 11009), and 28 CFR 0.110, must make his or her application in § 252.3 Great Lakes vessels and tugboats the Commissioner and immigration person before an immigration officer, arriving in the United States from Canada; officers (as defined in § 103.1(j) of this present whatever documents are special procedures. chapter) are designated as ‘‘competent required, be photographed and (a) United States vessels and tugboats. national authorities’’ on the part of the fingerprinted as the district director may An immigration examination shall not United States within the meaning of require, and establish to the satisfaction be required of any crewman aboard a Article XXIV of the 1903 Treaty of of the immigration officer that he or she Great Lakes vessel of United States Friendship and General Relations is not inadmissible under any provision registry or a tugboat of United States between the United States and Spain (33 of the law and is entitled clearly and registry arriving from Canada at a port Stat. 2105, 2117), and ‘‘local beyond doubt to landing privileges in of the United States who has been authorities’’ and ‘‘competent officers’’ the United States. examined and admitted by an on the part of the United States within * * * * * immigration officer as a member of the the meaning of Article XIII of the 133. Section 252.2 is revised to read crew of the same vessel or tugboat or of Convention between the United States as follows: any other vessel or tugboat of the same and Greece (33 Stat. 2122, 2131). Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10389

(b) Application for restoration. On arrange for his or her departure from the § 274a.12 Classes of aliens authorized to application of a Consul General, Consul, United States. accept employment. Vice-Consul, or Consular-Agent of the (d) Timely departure not effected. If (a) * * * Spanish or Greek Government, made in the Spanish authorities delay in sending (10) An alien granted withholding of writing pursuant to Article XXIV of the the individual home for more than 3 deportation or removal for the period of treaty, or Article XIII of the Convention, months, or if the Greek authorities delay time in that status, as evidenced by an respectively, stipulating for the in sending the individual home for more employment authorization document restoration of crewmen deserting, than 2 months, from the day of his or issued by the Service; stating that the person named therein her arrest, the individual shall be dealt * * * * * has deserted from a ship of war of that with as any other alien unlawfully in (12) An alien granted Temporary government, while in any port of the the United States under the removal Protected Status under section 244 of United States, and on proof by the provisions of the Act, as amended. the Act for the period of time in that exhibition of the register, crew list, or (e) Commission of crime. If the status, as evidenced by an employment official documents of the vessel, or a individual has committed any crime or authorization document issued by the copy or extract therefrom, duly certified, offense in the United States, he or she Service; or that the person named belonged, at the shall not be placed at the disposal of the * * * * * time of desertion, to the crew of such consul until after the proper tribunal (c) * * * vessel, such person shall be taken into having jurisdiction in his or her case (8) An alien who has filed a complete custody by any immigration officer shall have pronounced sentence, and application for asylum or withholding without a warrant of arrest. Written such sentence shall have been executed. of deportation or removal pursuant to 8 notification of charges shall be served PART 253—PAROLE OF ALIEN CFR part 208, whose application: on the alien when he or she is taken into (i) Has not been decided, and who is CREWMEN custody or as soon as practical eligible to apply for employment thereafter. 137. The authority citation for part authorization under § 208.7 of this (c) Examination. Within a reasonable 253 is revised to read as follows: chapter because the 150-day period set period of time after the arrest, the alien Authority: 8 U.S.C. 1103, 1182, 1282, 1283, forth in that section has expired. shall be accorded an examination by the 1285; 8 CFR part 2. Employment authorization may be district director, acting district director, granted according to the provisions of 138. In § 253.1, paragraph (f) is or the deputy district director having § 208.7 of this chapter in increments to revised to read as follows: jurisdiction over the place of arrest. The be determined by the Commissioner and alien shall be informed that he or she § 253.1 Parole. shall expire on a specified date; or may have the assistance of or be * * * * * (ii) Has been recommended for represented by a counsel or approval, but who has not yet received representative of his or her choice (f) Crewman, stowaway, or alien removable under section 235(c) alleging a grant of asylum or withholding or qualified under 8 CFR part 292 without deportation or removal; expense to the Government, and that he persecution. Any alien crewman, * * * * * or she may present such evidence in his stowaway, or alien removable under section 235(c) of the Act who alleges (10) An alien who has filed an or her behalf as may be relevant to this application for suspension of proceeding. If, upon the completion of that he or she cannot return to his or her country of nationality or last habitual deportation under section 244 of the Act such examination, it is determined that: (as it existed prior to April 1, 1997) or (1) The individual sought by the residence (if not a national of any cancellation of removal pursuant to Spanish or Greek authorities had country) because of fear of persecution section 240A of the Act. Employment deserted from a Spanish or Greek ship in that country on account of race, authorization shall be granted in of war in a United States port; religion, nationality, membership in a (2) The individual actually arrested particular social group, or political increments not exceeding one year and detained is the person sought; opinion, is eligible to apply for asylum during the period the application is (3) The individual is not a citizen of or withholding of removal under 8 CFR pending (including any period when an the United States; and part 208. Service officers shall take administrative appeal or judicial review (4) The individual had not previously particular care to ensure that the is pending) and shall expire on a been arrested for the same cause and set provisions of § 208.5(b) of this chapter specified date; at liberty because he or she had been regarding special duties toward aliens * * * * * detained for more than 3 months, or aboard certain vessels are closely (12) An alien granted benefits under more than 2 months in the case of a followed. the Family Unity provisions of section deserter from a Greek ship of war, from * * * * * 301 of IMMACT 90 and the provisions the day of his or her arrest without the of part 236, Subpart B of this chapter. Spanish or Greek authorities having PART 274aÐCONTROL OF * * * * * found an opportunity to send him or her EMPLOYMENT OF ALIENS (18) An alien against whom a final home, the individual shall be served order of deportation or removal exists 139. The authority citation for part with a copy of the findings, from which and who is released on an order of 274a continues to read as follows: no appeal shall lie, and be surrendered supervision under the authority forthwith to the Spanish or Greek Authority: 8 U.S.C. 1101, 1103, 1324a; 8 contained in section 241(a)(3) of the Act authorities if they are prepared to CFR part 2. may be granted employment remove him or her from the United 140. Section 274a.12 is amended by: authorization in the discretion of the States. On written request of the a. Revising paragraphs (a)(10) and district director only if the alien cannot Spanish or Greek authorities, the (12); be removed due to the refusal of all individual shall be detained, at their b. Revising paragraphs (c)(8) and (10); countries designated by the alien or expense, for a period not exceeding 3 c. Revising paragraph (c)(12); and by under section 241 of the Act to receive months or 2 months, respectively, from d. Revising paragraph (c)(18), to read the alien, or because the removal of the the day of arrest to afford opportunity to as follows: alien is otherwise impracticable or 10390 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations contrary to the public interest. arrested alien was entering, attempting § 287.5 Exercise of power by immigration Additional factors which may be to enter, or is present in the United officers. considered by the district director in States in violation of the immigration * * * * * adjudicating the application for laws, the examining officer will refer the (b) Power and authority to patrol the employment authorization include, but case to an immigration judge for further border. The following immigration are not limited to, the following: inquiry in accordance with 8 CFR parts officers who have successfully (i) The existence of economic 235, 239, or 240, order the alien completed basic immigration law necessity to be employed; removed as provided for in section enforcement training are hereby (ii) The existence of a dependent 235(b)(1) of the Act and § 235.3(b) of authorized and designated to exercise spouse and/or children in the United this chapter, or take whatever other the power to patrol the border conferred States who rely on the alien for support; action may be appropriate or required by section 287(a)(3) of the Act: and under the laws or regulations applicable (1) Border patrol agents, including (iii) The anticipated length of time to the particular case. aircraft pilots; before the alien can be removed from (c) Notifications and information. (2) Special agents; the United States. Except in the case of an alien subject to (3) Immigration inspectors (seaport * * * * * the expedited removal provisions of operations only); section 235(b)(1)(A) of the Act, an alien (4) Adjudications officers and PART 286ÐIMMIGRATION USER FEE arrested without warrant and placed in deportation officers when in the formal proceedings under section 238 or uniform of an immigration inspector 141. The authority citation for part and performing inspections or 286 continues to read as follows: 240 of the Act will be advised of the reasons for his or her arrest and the right supervising other immigration Authority: 8 U.S.C. 1103, 1356; 8 CFR part to be represented at no expense to the inspectors performing inspections 2. Government. The examining officer will (seaport operations only); 142. In § 286.9, paragraph (b)(3) is provide the alien with a list of the (5) Supervisory and managerial revised to read as follows: available free legal services provided by personnel who are responsible for organizations and attorneys qualified supervising the activities of those § 286.9 Fee for processing applications under 8 CFR part 3 and organizations officers listed in this paragraph; and and issuing documentation at land border (6) Immigration officers who need the Ports-of-Entry. recognized under § 292.2 of this chapter that are located in the district where the authority to patrol the border under * * * * * hearing will be held. The examining section 287(a)(3) of the Act in order to (b) * * * effectively accomplish their individual (3) A Mexican national in possession officer shall note on Form I–862 that such a list was provided to the alien. missions and who are designated, of a valid nonresident alien border individually or as a class, by the crossing card or nonimmigrant B–1/B–2 The officer will also advise the alien that any statement made may be used Commissioner. visa who is required to be issued Form (c) Power and authority to arrest—(1) against him or her in a subsequent I–94, Arrival/Departure Record, Arrests of aliens under section 287(a)(2) proceeding. pursuant to § 235.1(f) of this chapter, of the Act for immigration violations. must remit the required fee for issuance (d) Custody procedures. Unless The following immigration officers who of Form I–94 upon determination of voluntary departure has been granted have successfully completed basic admissibility. pursuant to subpart C of 8 CFR part 240, immigration law enforcement training a determination will be made within 24 * * * * * are hereby authorized and designated to hours of the arrest whether the alien exercise the arrest power conferred by PART 287ÐFIELD OFFICERS; will be continued in custody or released section 287(a)(2) of the Act and in POWERS AND DUTIES on bond or recognizance and whether a accordance with § 287.8(c): notice to appear and warrant of arrest as (i) Border patrol agents, including 143. The authority citation for part prescribed in 8 CFR parts 236 and 239 aircraft pilots; 287 continues to read as follows: will be issued. (ii) Special agents; Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 145. In § 287.4, paragraph (d) is (iii) Deportation officers; 1251, 1252, 1357; 8 CFR part 2. revised to read as follows: (iv) Immigration inspectors; (v) Adjudications officers; 144. Section 287.3 is revised to read § 287.4 Subpoena. as follows: (vi) Supervisory and managerial * * * * * personnel who are responsible for § 287.3 Disposition of cases of aliens (d) Invoking aid of court. If a witness supervising the activities of those arrested without warrant. neglects or refuses to appear and testify officers listed in this paragraph; and (a) Examination. An alien arrested as directed by the subpoena served (vii) Immigration officers who need without a warrant of arrest under the upon him or her in accordance with the the authority to arrest aliens under authority contained in section 287(a)(2) provisions of this section, the officer or section 287(a)(2) of the Act in order to of the Act will be examined by an immigration judge issuing the subpoena effectively accomplish their individual officer other than the arresting officer. If shall request the United States Attorney missions and who are designated, no other qualified officer is readily for the district in which the subpoena individually or as a class, by the available and the taking of the alien was issued to report such neglect or Commissioner. before another officer would entail refusal to the United States District (2) Arrests of persons under section unnecessary delay, the arresting officer, Court and to request such court to issue 287(a)(4) of the Act for felonies if the conduct of such examination is a an order requiring the witness to appear regulating the admission or removal of part of the duties assigned to him or her, and testify and to produce the books, aliens. The following immigration may examine the alien. papers, or documents designated in the officers who have successfully (b) Determination of proceedings. If subpoena. completed basic immigration law the examining officer is satisfied that 146. In § 287.5, paragraphs (b) through enforcement training are hereby there is prima facie evidence that the (f) are revised to read as follows: authorized and designated to exercise Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10391 the arrest power conferred by section enforcement of the immigration laws at the United States in violation of law. 287(a)(4) of the Act and in accordance the time of the arrest; When making an arrest, the designated with § 287.8(c): (C) There is a likelihood of the person immigration officer shall adhere to the (i) Border patrol agents, including escaping before a warrant can be provisions of the enforcement standard aircraft pilots; obtained for his or her arrest; and governing the conduct of arrests in (ii) Special agents; (D) The immigration officer has been § 287.8(c). (iii) Deportation officers; certified as successfully completing a (ii) The following immigration officers (iv) Immigration inspectors; training program that covers such who have successfully completed basic (v) Adjudications officers; arrests and the standards with respect to immigration law enforcement training (vi) Supervisory and managerial the enforcement activities of the Service are authorized and designated to personnel who are responsible for as defined in § 287.8. exercise the arrest power conferred by supervising the activities of those (ii) The following immigration officers section 274(a) of the Act: officers listed in this paragraph; and who have successfully completed basic (A) Border patrol agents, including (vii) Immigration officers who need immigration law enforcement training aircraft pilots; the authority to arrest persons under are hereby authorized and designated to (B) Special agents; section 287(a)(4) of the Act in order to exercise the arrest power conferred by (C) Deportation officers; effectively accomplish their individual section 287(a)(5)(B) of the Act and in (D) Immigration inspectors; missions and who are designated, accordance with § 287.8(c): (E) Adjudications officers when in the individually or as a class, by the (A) Border patrol agents, including uniform of an immigration inspector Commissioner with the approval of the aircraft pilots; and performing inspections or Deputy Attorney General. (B) Special agents; supervising other immigration (3) Arrests of persons under section (C) Deportation officers; inspectors performing inspections; 287(a)(5)(A) of the Act for any offense (D) Immigration inspectors (F) Supervisory and managerial against the United States. The following (permanent full-time immigration personnel who are responsible for immigration officers who have inspectors only); supervising the activities of those successfully completed basic (E) Adjudications officers when in the officers listed in this paragraph; and immigration law enforcement training uniform of an immigration inspector (G) Immigration officers who need the are hereby authorized and designated to and performing inspections or authority to arrest persons under section exercise the arrest power conferred by supervising other immigration 274(a) of the Act in order to effectively section 287(a)(5)(A) of the Act and in inspectors performing inspections; accomplish their individual missions accordance with § 287.8(c): (F) Supervisory and managerial and who are designated, individually or (i) Border patrol agents, including personnel who are responsible for as a class, by the Commissioner with the aircraft pilots; supervising the activities of those (ii) Special agents; approval of the Deputy Attorney officers listed in this paragraph; and General. (iii) Deportation officers; (G) Immigration officers who need the (iv) Immigration inspectors (6) Custody and transportation of authority to arrest persons under section (permanent full-time immigration previously arrested persons. In addition 287(a)(5)(B) of the Act in order to inspectors only); to the authority to arrest pursuant to a (v) Adjudications officers when in the effectively accomplish their individual warrant of arrest in paragraph (e)(3)(iv) uniform of an immigration inspector missions and who are designated, of this section, detention enforcement and performing inspections or individually or as a class, by the officers who have successfully supervising other immigration Commissioner with the approval of the completed basic immigration law inspectors performing inspections; Deputy Attorney General. enforcement training are hereby (vi) Supervisory and managerial (iii) Notwithstanding the authorized and designated to take and personnel who are responsible for authorization and designation set forth maintain custody of and transport any supervising the activities of those in paragraph (c)(4)(ii) of this section, no person who has been arrested by an officers listed in this paragraph; and immigration officer is authorized to immigration officer pursuant to (vii) Immigration officers who need make an arrest for any felony under the paragraphs (c)(1) through (c)(5) of this the authority to arrest persons under authority of section 287(a)(5)(B) of the section. section 287(a)(5)(A) of the Act in order Act until such time as he or she has (d) Power and authority to conduct to effectively accomplish their been certified by the Director of searches. The following immigration individual missions and who are Training as successfully completing a officers who have successfully designated, individually or as a class, by training course encompassing such completed basic immigration law the Commissioner with the approval of arrests and the standards for enforcement training are hereby the Deputy Attorney General. enforcement activities as defined in authorized and designated to exercise (4) Arrests of persons under section § 287.8. Such certification shall be valid the power to conduct searches conferred 287(a)(5)(B) of the Act for any felony. (i) for the duration of the immigration by section 287(c) of the Act: Section 287(a)(5)(B) of the Act officer’s continuous employment, unless (1) Border patrol agents, including authorizes designated immigration it is suspended or revoked by the aircraft pilots; officers, as listed in paragraph (c)(4)(iii) Commissioner or the Commissioner’s (2) Special agents; of this section, to arrest persons, designee for just cause. (3) Deportation officers; without warrant, for any felony (5) Arrests of persons under section (4) Immigration inspectors; cognizable under the laws of the United 274(a) of the Act who bring in, (5) Adjudications officers; States if: transport, or harbor certain aliens, or (6) Supervisory and managerial (A) The immigration officer has induce them to enter. (i) Section 274(a) personnel who are responsible for reasonable grounds to believe that the of the Act authorizes designated supervising the activities of those person to be arrested has committed or immigration officers, as listed in officers listed in this paragraph; and is committing such a felony; paragraph (c)(5)(ii) of this section, to (7) Immigration officers who need the (B) The immigration officer is arrest persons who bring in, transport, authority to conduct searches under performing duties relating to the or harbor aliens, or induce them to enter section 287(c) of the Act in order to 10392 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations effectively accomplish their individual 287(a) of the Act to execute warrants of they are individually qualified by missions and who are designated, arrest for administrative immigration training and experience to handle and individually or as a class, by the violations issued under section 236 of safely operate the firearms they are Commissioner. the Act or to execute warrants of permitted to carry, maintain proficiency (e) Power and authority to execute criminal arrest issued under the in the use of such firearms, and adhere warrants—(1) Search warrants. The authority of the United States: to the provisions of the enforcement following immigration officers who (i) Border patrol agents, including standard governing the use of force in have successfully completed basic aircraft pilots; § 287.8(a): immigration law enforcement training (ii) Special agents; (1) Border patrol agents, including are hereby authorized and designated to (iii) Deportation officers; aircraft pilots; exercise the power conferred by section (iv) Detention enforcement officers (2) Special agents; 287(a) of the Act to execute a search (warrants of arrest for administrative (3) Deportation officers; warrant: immigration violations only); (4) Detention enforcement officers; (i) Border patrol agents, including (v) Immigration inspectors; (5) Immigration inspectors; (6) Adjudications officers when in the aircraft pilots; (vi) Adjudications officers when in (ii) Special agents; the uniform of an immigration inspector uniform of an immigration inspector (iii) Supervisory and managerial and performing inspections or and performing inspections or personnel who are responsible for supervising other immigration supervising other immigration supervising the activities of those inspectors performing inspections; inspectors performing inspections; (7) Supervisory and managerial officers listed in this paragraph, and (vii) Supervisory and managerial personnel who are responsible for (iv) Immigration officers who need the personnel who are responsible for supervising the activities of those authority to execute search warrants supervising the activities of those officers listed in this paragraph; and under section 287(a) of the Act in order officers listed in this paragraph; and (8) Immigration officers who need the to effectively accomplish their (viii) Immigration officers who need authority to carry firearms under section individual missions and who are the authority to execute arrest warrants 287(a) of the Act in order to effectively designated, individually or as a class, by for immigration violations under section accomplish their individual missions the Commissioner with the approval of 287(a) of the Act in order to effectively and who are designated, individually or the Deputy Attorney General. accomplish their individual missions as a class, by the Commissioner with the (2) Issuance of arrest warrants for and who are designated, individually or approval of the Deputy Attorney immigration violations. A warrant of as a class, by the Commissioner, for General. arrest may be issued only by the warrants of arrest for administrative immigration violations, and with the 147. Section 287.7 is revised to read following immigration officers: as follows: (i) District directors (except foreign); approval of the Deputy Attorney (ii) Deputy district directors (except General, for warrants of criminal arrest. § 287.7 Detainer provisions under section foreign); (4) Service of warrant of arrests for 287(d)(3) of the Act. (iii) Assistant district directors for non-immigration violations. The (a) Detainers in general. Detainers are investigations; following immigration officers who issued pursuant to sections 236 and 287 (iv) Deputy assistant district directors have successfully completed basic of the Act and this chapter. Any for investigations; immigration law enforcement training authorized Service official may at any (v) Assistant district directors for are hereby authorized and designated to time issue a Form I–247, Immigration deportation; exercise the power to execute warrants Detainer-Notice of Action, to any other (vi) Deputy assistant district directors of criminal arrest for non-immigration Federal, State, or local law enforcement for deportation; violations issued under the authority of agency. A detainer serves to advise (vii) Assistant district directors for the United States: another law enforcement agency that the examinations; (i) Border patrol agents, including Service seeks custody of an alien (viii) Deputy assistant district aircraft pilots; presently in the custody of that agency, directors for examinations; (ii) Special agents; for the purpose of arresting and (iii) Deportation officers; (ix) Officers in charge (except foreign); removing the alien. The detainer is a (iv) Supervisory and managerial (x) Assistant officers in charge (except request that such agency advise the personnel who are responsible for foreign); Service, prior to release of the alien, in supervising the activities of those (xi) Chief patrol agents; order for the Service to arrange to (xii) Deputy chief patrol agents; officers listed in this paragraph; and (v) Immigration officers who need the assume custody, in situations when (xiii) Associate chief patrol agents; gaining immediate physical custody is (xiv) Assistant chief patrol agents; authority to execute warrants of arrest for non-immigration violations under either impracticable or impossible. (xv) Patrol agents in charge; (b) Authority to issue detainers. The section 287(a) of the Act in order to (xvi) The Assistant Commissioner, following officers are authorized to effectively accomplish their individual Investigations; issue detainers: (xvii) Institutional Hearing Program missions and who are designated, (1) Border patrol agents, including directors; individually or as a class, by the aircraft pilots; (xviii) Area port directors; Commissioner with the approval of the (2) Special agents; (xix) Port directors; or Deputy Attorney General. (3) Deportation officers; (xx) Deputy port directors. (f) Power and authority to carry (4) Immigration inspectors; (3) Service of warrant of arrests for firearms. The following immigration (5) Adjudications officers; immigration violations. The following officers who have successfully (6) Supervisory and managerial immigration officers who have completed basic immigration personnel who are responsible for successfully completed basic enforcement training are hereby supervising the activities of those immigration law enforcement training authorized and designated to exercise officers listed in this paragraph; and are hereby authorized and designated to the power conferred by section 287(a) of (7) Immigration officers who need the exercise the power pursuant to section the Act to carry firearms provided that authority to issue detainers under Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10393 section 287(d)(3) of the Act in order to Service to issue a detainer for an alien 149. Section 299.1 is amended by: effectively accomplish their individual not otherwise detained by a criminal a. Revising the entries for Forms ‘‘I– missions and who are designated justice agency, such agency shall 147’’, ‘‘I–205’’, ‘‘I–246’’, ‘‘I–247’’, ‘‘I– individually or as a class, by the maintain custody of the alien for a 259’’, ‘‘I–284’’, ‘‘I–286’’, ‘‘I–291’’, ‘‘I– Commissioner. period not to exceed 48 hours, 296’’, ‘‘I–408’’, ‘‘I–541’’, ‘‘I–589’’, ‘‘I– (c) Availability of records. In order for excluding Saturdays, Sundays, and 775’’, ‘‘I–851’’, and ‘‘I–851A’’; the Service to accurately determine the holidays in order to permit assumption propriety of issuing a detainer, serving of custody by the Service. b. Removing the entries for Forms I– a notice to appear, or taking custody of (e) Financial responsibility for 122’’, ‘‘I–221’’, ‘‘I–259C’’, ‘‘I–290A’’, and an alien in accordance with this section, detention. No detainer issued as a result ‘‘I–444’’, and by the criminal justice agency requesting of a determination made under this c. Adding the entries for Forms ‘‘I– such action or informing the Service of chapter shall incur any fiscal obligation 94T’’, ‘‘I–99’’, ‘‘I–148’’, ‘‘I–160’’, ‘‘I– a conviction or act that renders an alien on the part of the Service, until actual 210’’, ‘‘I–213’’, ‘‘I–217’’, ‘‘I–220A’’, ‘‘I– inadmissible or removable under any assumption of custody by the Service, 220B’’, ‘‘I–241’’, ‘‘I–261’’, ‘‘I–270’’, ‘‘I– provision of law shall provide the except as provided in paragraph (d) of 275’’, ‘‘I–294’’, ‘‘I–407’’, ‘‘I–546’’, ‘‘I– Service with all documentary records this section. 701’’, ‘‘I–770’’, ‘‘I–771’’, ‘‘I–826’’, ‘‘I– and information available from the 827B’’, ‘‘I–860’’, ‘‘I–862’’, ‘‘I–863’’, ‘‘I– agency that reasonably relates to the PART 299ÐIMMIGRATION FORMS 867AB’’, and ‘‘I–869’’ in proper alien’s status in the United States, or numerical sequence, to the listing of that may have an impact on conditions 148. The authority citation for part forms, to read as follows: of release. 299 continues to read as follows: (d) Temporary detention at Service Authority: 8 U.S.C. 1101, 1103; 8 CFR part § 299.1 Prescribed forms. request. Upon a determination by the 2. * * * * *

Form No. Edition date Title

******* I±94T ...... 09±22±87 ...... Arrival-Departure Record (Transit without visa). ******* I±99 ...... 04±01±97 ...... Notice of Revocation and Penalty. ******* I±147 ...... 04±01±97 ...... Notice of Temporary Inadmissibility to U.S. I±148 ...... 04±01±97 ...... Notice of Permanent Inadmissibility. I±160 ...... 04±01±97 ...... Notice of Parole/Lookout Intercept. ******* I±205 ...... 04±01±97 ...... Warrant of Removal. I±210 ...... 04±01±97 ...... Notice of ActionÐVoluntary Departure. ******* I±213 ...... 04±01±97 ...... Record of Deportable/Inadmissible Alien. I±217 ...... 04±01±97 ...... Information for Travel Document or Passport. I±220A ...... 04±01±97 ...... Order of Release on Recognizance. I±220B ...... 04±01±97 ...... Order of Supervision. ******* I±241 ...... 04±01±97 ...... Request for Travel Document to Country Designated by Alien. ******* I±246 ...... 04±01±97 ...... Application for Stay of Removal. I±247 ...... 04±01±97 ...... Immigration DetainerÐNotice of Action. I±259 ...... 04±01±97 ...... Notice to Detain, Deport, Remove, or Present Aliens. ******* I±261 ...... 04±01±97 ...... Additional Charges of Removability. I±270 ...... 04±01±97 ...... Request for Consent to Return Person to Canada. I±275 ...... 04±01±97 ...... Withdrawal of Application/Consular Notification. I±284 ...... 04±01±97 ...... Notice to Transportation Line Regarding Deportation and Detention Expenses of De- tained Alien. I±286 ...... 04±01±97 ...... Notification to Alien of Conditions of Release or Detention. ******* I±291 ...... 04±01±97 ...... Decision on Application for Status as Permanent Resident. ******* I±294 ...... 04±01±97 ...... Notice of Country to Which Deportation has been Directed and Penalty for Reentry without Permission. I±296 ...... 04±01±97 ...... Notice to Alien Ordered Removed. ******* I±407 ...... 04±01±97 ...... Abandonment by Alien of Status as Lawful Permanent Resident. I±408 ...... 04±01±97 ...... Application to Pay Off or Discharge Alien Crewman. 10394 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Form No. Edition date Title

******* I±541 ...... 04±01±97 ...... Order of Denial of Application for Extension of Stay or Student Employment or Student Transfer. ******* I±546 ...... 04±01±97 ...... Order to AppearÐDeferred Inspection. ******* I±589 ...... 04±01±97 ...... Application for Asylum and Withholding of Removal. ******* I±701 ...... 04±01±97 ...... Detainee Transfer Worksheet. ******* I±770 ...... 04±01±97 ...... Notice of Rights and Request for Disposition. I±771 ...... 04±01±97 ...... Bond Computation Worksheet. I±775 ...... 04±01±97 ...... Visa Waiver Pilot Program Agreement. ******* I±826 ...... 04±01±97 ...... Notice of Rights and Request for Disposition I±851 ...... 04±01±97 ...... Notice of Intent to Issue Final Administrative Removal Order. I±851A ...... 04±01±97 ...... Final Administrative Removal Order. ******* I±860 ...... 04±01±97 ...... Notice and Order of Expedited Removal. I±862 ...... 04±01±97 ...... Notice to Appear. I±863 ...... 04±01±97 ...... Notice of Referral to Immigration Judge. I±867AB ...... 04±01±97 ...... Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act. I±869 ...... 04±01±97 ...... Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. *******

150. Section 299.5 is amended by: a. Removing the entry for Form ‘‘I–259C’’; and by b. Revising the entries for Forms ‘‘I–246’’ and ‘‘I–589’’, and to read as follows: § 299.5 Display of control numbers. * * * * *

Currently assigned INS form no. INS form title OMB con- trol no.

******* I±246 Application for Stay of Removal ...... 1115±0055 ******* I±589 Application for Asylum and Withholding of Removal ...... 1115±0086 *******

PART 316ÐGENERAL status as a lawful permanent resident CFR part 239 (including a charging REQUIREMENTS FOR and, therefore, disrupts the continuity of document issued to commence NATURALIZATION residence for purposes of this part. proceedings under sections 236 or 242 * * * * * of the Act prior to April 1, 1997) shall 151. The authority citation for part be regarded as a warrant of arrest. 316 is revised to read as follows: PART 318ÐPENDING REMOVAL Authority: 8 U.S.C. 1103, 1181, 1182, 1443, PROCEEDINGS PART 329ÐSPECIAL CLASSES OF 1447; 8 CFR part 2. PERSONS WHO MAY BE 153. The heading for part 318 is NATURALIZED: NATURALIZATION 152. Section 316.5 is amended by revised as set forth above. BASED UPON ACTIVE DUTY SERVICE revising paragraph (c)(3) to read as 154. The authority citation for part IN THE UNITED STATES ARMED follows: 318 is revised to read as follows: FORCES DURING SPECIFIED § 316.5 Residence in the United States. Authority: 8 U.S.C. 1103, 1252, 1429, 1443; PERIODS OF HOSTILITIES * * * * * 8 CFR part 2. (c) * * * 155. Section 318.1 is revised to read 156. The authority citation for part (3) Removal and return. Any as follows: 329 is revised to read as follows: departure from the United States while Authority: 8 U.S.C. 1103, 1440, 1443; 8 under an order of removal (including § 318.1 Warrant of arrest. CFR part 2. previously issued orders of exclusion or For the purposes of section 318 of the deportation) terminates the applicant’s Act, a notice to appear issued under 8 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10395

159 Section 329.2 is amended by revising paragraph (e)(3) to read as follows: § 329.2 Eligibility. * * * * * (e) * * * (3) The applicant may be naturalized even if an outstanding notice to appear pursuant to 8 CFR part 239 (including a charging document issued to commence proceedings under sections 236 or 242 of the Act prior to April 1, 1997) exists. Dated: February 26, 1997. Janet Reno, Attorney General. [FR Doc. 97–5250 Filed 2–28–97; 3:29 pm] BILLING CODE 4410±10±P