federal register January 3,1997 Friday Asylum Procedures;ProposedRule Conduct ofRemovalProceedings; Aliens; DetentionandRemovalof Inspection andExpeditedRemovalof 8 CFRPart1,etal. Review and ExecutiveOfficeforImmigration Immigration andNaturalizationService Justice Department of Part II 443 444 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

DEPARTMENT OF JUSTICE For matters relating to the Executive the laws governing admission, Office for Immigration Review—Peggy inspection, removal, and detention of Immigration and Naturalization Service Philbin, General Counsel, Executive aliens—eliminating or revising old and Executive Office for Immigration Office for Immigration Review, 5107 standards, creating new ones, and Review Leesburg Pike, Suite 2400, Falls Church, reorganizing and revising numerous VA 22041, telephone number (703) 305– provisions of existing law. In some 8 CFR Parts 1, 3, 103, 204, 207, 208, 0470; for asylum issues—Michael Shaul, respects, even after the effective date of 209, 211, 212, 213, 214, 216, 217, 221, Field Manual Project Office, the new provisions, existing legal 223, 232, 233, 234, 235, 236, 237, 238, Immigration and Naturalization Service, standards will still be applied with 239, 240, 241, 242, 243, 244, 245, 246, 425 I Street NW., ULLB–4th Floor, respect to legal matters initiated prior to 248, 249, 251, 252, 253, 274a, 286, 287, Washington, DC 20536, telephone that date. The length of this rulemaking 299, 316, 318, and 329 number (202) 616–7439; for inspections document alone—only one of the issues—Linda Loveless, Office of regulatory actions necessary to [INS No. 1788±96; AG Order No. 2065±96] Inspections, Immigration and implement IIRIRA— demonstrates the RIN 1115±AE47 Naturalization Service, 425 I Street NW., breadth and complexity of these Room 4064, Washington, DC 20536, changes. Inspection and Expedited Removal of telephone number (202) 616–7489; for Congress directed that the provisions Aliens; Detention and Removal of detention and removal issues—Len of Title III–A of IIRIRA take effect on Aliens; Conduct of Removal Loveless, Office of Detention and April 1, 1997, and also directed that the Proceedings; Asylum Procedures Deportation, Immigration and Attorney General publish implementing Naturalization Service, 425 I Street NW., regulations by March 1, 1997. A five- AGENCY: Immigration and Naturalization Room 3008, Washington, DC 20536, month period is an extremely short time Service, Justice, and Executive Office for telephone number (202) 616–7799. frame for completing the regulatory Immigration Review, Justice. process for a rule of this magnitude, SUPPLEMENTARY INFORMATION: The Illegal given the time needed to draft the rule, ACTION: Proposed rule. Immigration Reform and Immigrant coordinate with interested agencies, Responsibility Act of 1996, Public Law SUMMARY: This rule proposes to amend complete the regulatory review process 104–208, enacted on September 30, the regulations of the Immigration and by OMB pursuant to Executive Order Naturalization Service (Service) and the 1996, amends the Immigration and 12866, and allow time for public Executive Office for Immigration Nationality Act (Act) in several ways. comment. In particular, it means that Review (EOIR) governing the conduct of This rule proposes to implement the there is not adequate time for the usual both expedited and regular removal IIRIRA by creating a new, expedited rulemaking model of 60 days public proceedings, and handling of asylum removal process for aliens attempting to notice. claims. The regulation addresses other enter the United States through fraud or Because of these exigencies, the activities involving the apprehension, misrepresentation or without proper Department has limited the public detention, hearing of claims and documents while providing a comment period on this proposed rule ultimately the removal of inadmissible mechanism for the determination and to 30 days. However, in order to provide and deportable aliens. In addition, this review of applicants who demonstrate a a fuller opportunity for public input on rule incorporates a number of changes credible fear of persecution if returned the numerous issues addressed in this which are a part of the Administration’s to their own country. It consolidates rulemaking, the Department will allow reinvention initiative, mandated in a exclusion and deportation proceedings a 120-day comment period on the directive signed by the President on into one unified removal proceeding. It Interim Rule when that is published by March 4, 1995, requiring all heads of revises the asylum process. the beginning of March, prior to the departments and agencies to conduct a It provides that persons who are development of a Final Rule. page-by-page review of all regulations present in the United States without As of the date this document was and to eliminate or revise those that are inspection are considered applicants for submitted for publication, Public Law outdated or otherwise in need of reform. admission and indicates that such 104–208 had not been printed. The This rule is necessary to implement the persons will not be subject to expedited conference report accompanying the provisions of the Illegal Immigration removal unless and until the INS House version of the bill, however, Reform and Immigrant Responsibility Commissioner invokes the provisions in contains the provisions of IIRIRA. See Act of 1996 (IIRIRA) and the the statute and this rule allowing her to H.R. Conf. Rep. No. 863, 104th Cong. 2d Antiterrorism and Effective Death expand the use of the expedited removal Sess., at 561. The Act should be printed Penalty Act of 1996 (AEDPA). process to include such individuals. in its entirety in the next few weeks. Also, various sections of IIRIRA have DATES: Written comments must be revised and expanded the grounds of Applicants for Admission and Arriving submitted on or before February 3, 1997. inadmissibility (formerly exclusion Aliens ADDRESSES: Please submit written grounds). Section 302 of IIRIRA amends section comments, in triplicate, to the Director, The effective date of the changes 235(a) of the Act to describe as Policy Directives and Instructions implementing the expedited removal applicants for admission both aliens Branch, Immigration and Naturalization process is April 1, 1997. The who are arriving in the United States Service, 425 I Street, NW., Room 5307, Antiterrorism and Effective Death (whether or not they arrive at a Washington, DC 20536. To ensure Penalty Act of 1996, Public Law 104– designated port-of-entry) and aliens proper handling, please refer INS 132, was enacted April 24, 1996. Many present in the United States who have number 1788–96 on your of its major provisions were superseded not been admitted. This section also correspondence. Comments are by IIRIRA before they became effective. includes aliens brought to the United available for public inspection at the Several of the remaining provisions will States after having been interdicted in above address by calling (202) 514–3048 be implemented with this rulemaking. international or United States waters. to arrange for an appointment. Taken together, the provisions of Prior to the enactment of the IIRIRA, FOR FURTHER INFORMATION CONTACT: IIRIRA have made pervasive changes in aliens apprehended after entering the Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 445

United States without inspection were States, in lieu of removal proceedings, 1.1(q), i.e., aliens arriving at a port-of- subject to deportation proceedings and to depart immediately. Permitting entry, aliens interdicted at sea, and under section 242 of the Act. By an alien to withdraw his or her aliens previously paroled upon arrival. considering such aliens to be applicants application for admission allows the The Commissioner may, however, elect for admission, this amendment Service to better manage its resources by to apply the expedited removal significantly changes the manner in removing inadmissible aliens quickly at procedures to additional classes of which aliens who have entered the little or no expense to the Government, aliens within the limits set by the United States without inspection are and may be considered instead of statute, if, in the Commissioner’s considered under the Act. expedited or regular removal when the discretion, such action is operationally In some instances, IIRIRA circumstances of the inadmissibility warranted. The Commissioner’s distinguishes between the broader term may not warrant a formal removal. The designation may be localized, in ‘‘applicants for admission’’ and a option to permit withdrawal is solely at response to specific needs within a narrower group, ‘‘arriving aliens.’’ For the discretion of the Government, and is particular region, or nationwide, as clarity, ‘‘arriving alien’’ has now been not a right of the alien. An immigration appropriate. The designation would specifically defined in 8 CFR part 1. The judge may allow only arriving aliens to become effective upon publication in proposed definition of ‘‘arriving alien’’ withdraw an application for admission. the Federal Register, except where in section 1.1(q) includes aliens arriving Such a grant should ordinarily require circumstances require immediate at a port-of-entry, aliens interdicted at the Service’s concurrence once the issue implementation. The Department would sea, and aliens previously paroled upon of inadmissibility or deportability has value commentary on two alternative arrival. The term ‘‘arriving alien’’ could been resolved. During the pendency of approaches as well: (1) application of also include other classes of aliens, e.g., an appeal from an order of removal, expedited removal only to ‘‘arriving those apprehended crossing a land permission to withdraw must be aliens’’; and (2) application of expedited border between ports-of-entry. The obtained from the immigration judge or removal to all aliens not admitted or Department would value commentary the Board of Immigration Appeals paroled (and not described in section on the proper scope of the regulatory (Board). 235(b)(1)(F) who cannot demonstrate continuous physical presence for the definition. Expedited Removal of Certain previous two years. Parole of Aliens Applicants for Admission Finally, commentary on the proper The proposed rule amends § 212.5 to Pursuant to section 302(a) of IIRIRA, scope of the term ‘‘arriving alien’’ would permit chief patrol agents to authorize aliens who attempt to enter the United be helpful to the Department in parole from Service custody of aliens States by fraud or misrepresentation or implementing section 235(b)(1). The who have not been admitted to the who arrive without valid entry proposed regulatory definition in United States. The regulations documents may be removed under an section 1.1(q) includes aliens arriving at previously allowed the district director expedited process without further a port-of-entry, aliens interdicted at sea, to exercise this authority for emergent hearing or review. An exception is and aliens previously paroled upon reasons or when strictly in the public provided for Cuban nationals arriving arrival. The term ‘‘arriving alien’’ could interest. Because many of the aliens by aircraft at a port-of-entry. Aliens who also include other classes of aliens, e.g., apprehended and processed under the are inadmissible on other grounds will those apprehended crossing a land jurisdiction of a chief patrol agent will be referred for proceedings before an border between ports-of-entry. immigration judge under the new now be considered applicants for Review of Claim to Lawful Permanent admission, this change is necessary to removal provisions of section 240 of the Act. Although not required by statute, Resident, Refugee, or Asylee Status in allow discretionary release of those Expedited Removal aliens in the particular circumstances the proposed regulation provides for enumerated in § 212.5. review and approval of the expedited An expedited removal order entered removal order by a supervisory against an alien by an immigration Custody of Aliens Applying at Land immigration officer prior to removal of officer at the time of arrival or by an Border Ports-of-entry the alien. The expedited removal order asylum officer following a The proposed regulation implements bars reentry for 5 years following the determination that the alien does not a new provision added to section removal, or 20 years in the case of a have a credible fear of persecution is not 235(b)(2) of the Act to state that an second or subsequent removal, unless subject to administrative appeal, but applicant for admission arriving at a the alien obtains advance permission to may be reviewed by an immigration land border port-of-entry and subject to reenter the Untied States. judge upon request of the alien. An a removal hearing under section 240 of The Department requests public exception is provided in section the Act may be required to await the comment regarding the appropriate use 235(b)(1)(C) of the act for an alien who hearing in Canada or Mexico. This of the authority conferred by the statute claims under oath or under penalty or simply adds to statute and regulation a upon the Attorney General to expand perjury to be a lawful permanent long-standing practice of the Service. If the class of aliens subject to expedited resident, to have been admitted as a the alien fails to appear for the hearing, removal. Section 235(b)(1)(A)(iii) of the refugee under section 207 of the Act, or the immigration judge may order the Act permits the Attorney General, in her to have been granted asylum under alien removed in absentia. sole and unreviewable discretion, to section 208 of the Act. apply expedited removal to aliens not Before entering an expedited removal Withdrawal of Application for admitted or paroled (and not described order against these aliens, the Service Admission in section 235(b)(1)(H)) who cannot will attempt to verify the alien’s claim Section 302(a) of IIRIRA incorporates establish continuous physical presence to lawful permanent resident, refugee, into section 235(a)(4) of the Act the in the United States for the previous two or asylee status. If a claim to lawful longstanding practice used by the years. permanent resident status is verified, Service to permit applicants for Under the proposed rule, expedited the examining officer will determine admission to voluntarily withdraw their removal will generally apply only to whether the alien is considered an applications for admission to the United ‘‘arriving aliens,’’ as defined in section applicant for admission within the 446 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules meaning of section 101(a)(13) of the Act. can be issued), and (5) files the requisite terminated. The Service may then admit Section 301(a) of IIRIRA amended Form I–131, Application for a Travel the alien or pursue any other grounds of section 101(a)(13) of the Act to provide Document, with the appropriate fee. inadmissibility or deportability under that an alien lawfully admitted for Upon the filing and approval of such section 212 or 237 of the Act in a permanent residence is not seeking application, the alien may be readmitted removal proceeding pursuant to section admission unless the alien has to the United States as if he or she were 240 of the Act, if appropriate. in possession of a valid refugee travel abandoned or relinquished that status, Revision of Asylum Procedures has been absent for a continuous period document, provided the alien is in excess of 180 days, has engaged in otherwise admissible. The regulation proposes to amend 8 illegal activity after having departed the If the immigration officer determines CFR part 208 to create new procedures United States, has departed while under that an alien verified to have once held for the consideration of asylum legal process seeking removal, has the status of a lawful permanent applications as mandated by section 604 committed certain criminal offenses, or resident, refugee, or asylee does not of IIRIRA, to make certain other changes is attempting to enter at a time or place merit a waiver, the officer will not issue which are not mandated by IIRIRA, but other than as designated or has not been an expedited removal order; rather, the that will significantly improve the inspected and admitted to the United officer may place the alien in removal asylum process, and to streamline the States. If the verified lawful permanent proceedings under section 240 of the existing regulations in accordance with resident is determined to be an Act, Section 235(b)(1)(C) of the Act does the principles discussed elsewhere in applicant for admission, the officer may not specify what should occur if an the supplementary information. consider appropriate discretionary alien actually establishes to the Of special significance are the waivers, if applicable, such as a waiver satisfaction of an inspecting officer or an provisions in the regulation providing the immigration judges with exclusive of documents under section 211(b) or immigration judge that he or she is a jurisdiction over certain categories of other administrative options. lawful permanent resident, refugee, or asylee. However, section 242(e)(4) of the asylum applications, including those Current regulations do not provide for amended Act provides that if an alien filed by alien crewmen, stowaways who a waiver of documents or similar appealing an expedited removal order to establish a credible fear of persecution, options for refugees and asylees who Federal district court establishes by a aliens covered by the Visa Waiver Pilot seek to reenter the United States preponderance of the evidence that he Program, aliens subject to removal without a refugee travel document. The or she is a lawful permanent resident, under section 235(c) of the Act, and regulations at § 223.2(b)(2) require that has been admitted as a refugee, or has aliens who have applied for or received an application for a refugee travel been granted asylum, then the district an ‘‘S’’ visa. Under the current document be filed before a refugee or court may order that the alien be regulations, some of these classes of asylee departs from the United States. provided a hearing under section 240 of aliens (stowaways, crewmen, and aliens The regulations also require at § 223.1(b) the Act. In light of these judicial review removable under section 235(c) of the that a refugee or asylee must have a provisions that would result in such Act) receive only an interview with an refugee travel document to return to the aliens receiving a regular removal asylum officer which is reviewed United States after temporary travel proceeding under section 240 of the Act, directly by the Board. However, some abroad unless he or she is in possession the Department considers a referral into problems have arisen with these of a valid advance parole document. section 240 removal proceedings upon procedures, most significantly, the The combination of these two verification of such status by an difficulty of generating a reliable and provisions has resulted in a few refugees immigration officer or demonstration of complete record and the absence of a and asylees (who had no intention of such status to an immigration judge to government-provided interpreter in abandoning their status in the United be the most practical and efficient asylum officer interviews. The States at the time of their departure) not implementation of these provisions. Department believes that giving the being able to be readmitted in such In cases where the alien’s claim to immigration judges exclusive status. With the advent of the expedited lawful permanent resident, refugee, or jurisdiction over such determinations removal provisions, including the asylee status cannot be verified, the will certify these problems while still procedure for a review by an immigration officer or the asylum officer maintaining the high quality and immigration judge of a claim to refugee will order the alien removal under consistency of the interview and or asylee status, the need for a formal section 235(b)(1)(A)(i) of the Act or for decision-making process which the process for dealing with such a credible fear determination under public has come to expect. individuals has become more critical. section 235(b)(1)(B)(iii), and then refer The proposed rule’s treatment of The Service proposes to address the the alien to an immigration judge for section 208(a)(2) of the Act, which problem by giving district directors the review of the order. If the judge establishes a number of new grounds discretionary authority to accept an determines that the alien is not a lawful barring an alien from applying for application for a refugee travel permanent resident, has not been asylum, is equally important. Regarding document from an alien who is outside admitted as a refugee, or has not been section 208(a)(2)(C) of the Act, which the United States, provided that alien: granted asylum under section 208 of the bars an alien from applying for asylum (1) held bonafide refugee or asylee Act, the order issued by the examining if the alien had a previous asylum status in the United States at the time immigration officer or asylum officer application denied, the rule makes clear of his or her departure from the United will be effected and the alien will be that this provision applies only to States, (2) did not intend to abandon removed from the United States under asylum applications that have been such refugee or asylee status, (3) did that order. No further review is denied by an immigration judge or the nothing while outside the United States available. If the judge determines that Board. This ensures that aliens who which would be inconsistent with the alien was once admitted and/or received a denial of their application refugee or asylum status, (4) has been currently is a lawful permanent from an asylum officer because they outside the United States for less than resident, refugee, or asylee, the order applied for asylum while in valid status one year (the maximum period of time will be canceled and proceedings under or under procedures in place prior to for which the refugee travel document section 235(b)(1) of the Act will be January 1995 receive consideration of Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 447 their application by an immigration applicants from making patently false supervisory asylum officer may direct judge. The rule also interprets the terms claims. the asylum officer to interview the ‘‘changed circumstances’’ and It should be noted that the proposed applicant further, or to research country ‘‘extraordinary circumstances’’ in rule does not discuss § 208.19 dealing conditions or other matters relevant to section 208(a)(2)(D) of the Act as those with the admission of the spouse and the decision. If the supervisory asylum terms apply to the 1-year bar in section children of an alien granted asylum officer agrees that the alien has not 208(a)(2)(B) of the Act. The regulation status. This topic was the subject of a demonstrated a credible fear of provides minimal guidance on the separate proposed rule published July 9, persecution, the alien will be ordered meaning of the term ‘‘changed 1996. See 61 FR 35,984 (1996). That removed under the provisions of section circumstances.’’ Nevertheless, because separate rulemaking will be 235(b)(1)(B)(iii)(I) of the Act. If the alien of the novelty of the ‘‘extraordinary incorporated into the overall asylum requests review of the determination circumstances’’ exception to the 1-year regulations once it is finalized. that he or she has not demonstrated a bar, the rule offers a regulatory Credible Fear Determination and credible fear of persecution, the credible interpretation of this term. While the Claims of Asylum or Fear of fear determination will be promptly Department considered having the Persecution by Alien Subject to reviewed by an immigration judge. The regulation identify specific examples of Expedited Removal alien will have the opportunity to be extraordinary circumstances that would heard and questioned by the justify a waiver of the one-year filing Under the new section 235(b)(1)(A)(ii) immigration judge. This review will be requirement, the proposed rule opts in of the Act, an alien subject to expedited limited solely to the issue of credible favor of a provision that generally removal who indicates an intention to fear, and may be conducted either in defines the term as events or factors apply for asylum or who expresses a person or by telephonic or video fear of persecution will be referred to an beyond the alien’s control that caused connection. By statute, the review asylum officer to determine if the alien the failure to meet the one-year should be conducted as soon as possible has a credible fear of persecution. deadline. The regulation also provides following the credible fear Credible fear of persecution is defined that the alien file the application as determination, preferably within 24 in section 302(a) of IIRIRA to mean that soon as practicable under those hours, and no later than seven days after ‘‘there is a significant possibility, taking circumstances. Thus, an event or factor the date of determination. The alien will into account the credibility of the of relatively brief duration would be be detained during this review period, statements made by the alien in support insufficient to excuse the filing of an and if found by the immigration judge of the alien’s claim and such other facts application long after the deadline. In not to have a credible fear, will be as are known to the officer, that the promptly removed. our view, such a general definition alien could establish eligibility for provides guidance to decision makers Section 235(b)(1)(B)(ii) of the Act asylum under section 208.’’ provides that aliens who are determined while offering more flexibility than a Interviews to determine whether an definition by example would. by an asylum officer to have a credible alien has a credible fear of persecution fear of persecution will be detained for Nevertheless, we can imagine several will be conducted by an asylum officer, examples that would likely satisfy this further consideration of the asylum either at the port-of-entry or at claim. While the statute does not specify definition: the applicant suffered a designated locations such as detention physical or mental disability that how or by whom this further centers. For purposes of this credible consideration should be conducted, the prevented a timely filing; the applicant fear interview, an asylum officer is proposed rule provides for such was under a legal disability (e.g., an defined in the Act as an immigration consideration by an immigration judge unaccompanied minor) during the one- officer who has had professional in removal proceedings conducted year period; or the applicant received training in country conditions, asylum pursuant to section 240 of the Act. In ineffective assistance of counsel, as that law, and interview techniques the removal hearing, the immigration concept has been interpreted by the comparable to that provided to full-time judge will make a determination Board of Immigration Appeals, resulting adjudicators of applications under whether alien is eligible for asylum in a failure to file a timely application. section 208, and is supervised by an under section 208 of the Act or for Nevertheless, because of both the officer who meets the same criteria and withholding of removal under section novelty and importance of these new who has had substantial experience 241(b)(3) of the Act. The removal order provisions, the Department welcomes adjudicating asylum applications. This will be subject to administrative review suggestions from the public on how best definition may include officers other by the Board in accordance with section to implement them. than full-time asylum officers, provided 240 of the Act and § 3.1(b)(3). The proposed rulemaking also offers they have undergone the necessary Credible fear determinations are also guidance on how to apply section training and have the requisite made in the case of stowaways. 208(d)(6) of the Act, which provides supervision, but the Service will Although not entitled to removal that an alien who knowingly makes a generally attempt to assign full-time proceedings under section 240 of the frivolous asylum application shall be asylum officers to the task of Act, a stowaway who has been permanently ineligible for any benefits determining credible fear. Prior to the determined by an asylum officer (or by under the Act. At § 208.18, the rule first interview, the alien may consult with a an immigration judge upon review of a provides that such determinations may person or persons of his or her own negative determination by an asylum only be made in a final order by an choosing at no cost to the Government, officer) to have a credible fear of immigration judge or the Board of provided it does not unreasonably delay persecution may file an asylum Immigration Appeals. The rule also the process. application to be adjudicated by an defines an application as ‘‘frivolous’’ if The asylum officer will make a immigration judge in asylum-only it is fabricated or brought for an determination whether the alien has a proceedings. There is no appeal from improper purpose. In doing so, the credible fear of persecution. Service the decision of an immigration judge as Department is carrying out one of the procedures will require that the to whether the stowaway has a credible central principles of the asylum reform determination be reviewed by a fear of persecution. A stowaway who is process begun in 1993; to discourage supervisory asylum officer. The found not to have a credible fear will be 448 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules expeditiously removed. However, a consistent with this most recently regarding the scheduling of removal stowaway who meets the credible fear expressed view of the Congress. Thus, cases, custody and bond in removal threshold and is allowed to present an the rule provides that an alien may proceedings, and contents of the Notice asylum or withholding of removal attempt to obtain relief under section of Appear form. application in a proceeding before an 243(h)(3) of the Act only if he or she is Subpoenas by Immigration Judges immigration judge may appeal the an aggravated felon who received an resulting decision to the BIA. aggregate sentence of less than 5 years Section 304 of IIRIRA bestows upon and can establish that the crime or immigration judges the statutory Proposed Changes Not Mandated by crimes of which he or she has been authority to issue subpoenas for the IIRIRA convicted are not particularly serious. attendance of witnesses and The rulemaking also proposes to This will require a case-by-case presentation of evidence in removal remove §§ 208.13(b)(2)(ii) and determination whether the crime or proceedings. This subpoena power had 208.16(b)(4) which require that crimes committed by the alien are previously been granted to immigration adjudicators give ‘‘due consideration to particularly serious. Only if the crime is judges by regulation only and the evidence that the government of the determined not to be particularly immigration judges had to enlist the applicant’s country of nationality or last serious will the alien be entitled to have district director to invoke the aid of the habitual residence persecutes its his or her withholding of deportation district court for failure to comply with nationals or residents if they leave the claim considered. Because section the subpoena. The proposed rule country without authorization or seek 243(h)(3) of the Act was eliminated by amends the subpoena provisions to asylum in another country.’’ The IIRIRA, this rule applies only to provide that an immigration judge regulations accomplish little and are applications for withholding made in directly invokes the aid of the district potentially misleading in their current proceedings commenced prior to April court for an order requiring the form. The term ‘‘due consideration’’ 1, 1997, so long as a final action on any compliance with a subpoena instead of provides little guidance. Moreover, the such withholding request was not taken requiring the district director to take question of whether punishment for a prior to April 24, 1996, the date of such action. migration-related offense is AEDPA’s passage. ‘‘persecution’’ hinges on an evaluation New Removal Proceedings of the circumstances of each case. Under Establishment of a Fee for Filing an Section 240 of the Act as amended by current law, prosecution for migration- Application for Asylum section 304(a) of IIRIRA merges the related offenses does not ordinarily This rulemaking does not propose to separate proceedings of exclusion and amount to persecution. Since the establish a fee for filing an application deportation into one removal provision does not offer any assistance for asylum or to expand the situations proceeding. In this single proceeding, in adjudicating claims involving under which fees may be charged for the immigration judge will determine prosecution for unauthorized departure, asylum-based applications for work whether an alien is inadmissible under we propose removing it from the authorization, despite the statutory section 212 of the Act or deportable regulations. permission to do so contained in section under section 237 (formerly section 241) The rule provides a special regulation 208(d)(3) of the Act. Should the of the Act. In light of these statutory to govern the application of section Department decide to do so at a later changes, individuals in removal 243(h)(3) of the Act, a provision added date, that action would be part of a proceedings are referred to in the by section 413(f) of AEDPA that was separate rulemaking. proposed rule as determined to be eliminated by section 307 of IIRIRA. removable or ordered removed after That section provided that, Employment Authorization for Asylum being found to be either inadmissible or notwithstanding any other provision of Applicants deportable (but no longer will be law, the Attorney General could grant The proposed regulations will referred to as excludable or excluded). an alien withholding of deportation if continue to allow asylum applicants to Removal proceedings will in nearly all she determined that it was necessary to apply for an employment authorization respects resemble present day do so to ensure compliance with the document (EAD) once the asylum deportation or exclusion proceedings, 1967 Protocol Relating to the Status of application has been pending for 150 with some minor differences outlined Refugees. In new section 241(b)(3)(B) of days, which is 30 days before the new below and implemented by this the Act, the only change Congress made statutorily-mandated time for granting proposed rule. to the existing bars to withholding of such authorization contained in section Although not as a result of any deportation was to require, in the case 208(d)(2) of the Act. provision of IIRIRA, the Department is of an alien convicted of an aggravated soliciting public comments on whether Rules of Procedure for Executive Office felony (or felonies), that the alien these regulations should include a for Immigration Review receive an aggregate term of provision for appointment of a guardian imprisonment of at least 5 years before Implementation of IIRIRA will impact ad litem in a case where a minor or such crime or crimes are automatically the rules of procedure for proceedings incompetent respondent in removal considered to be particularly serious. before the Executive Office for proceedings is otherwise unrepresented. We understand this change to reflect Immigration Review. These proposed Congress’ conclusion that the bars to rules amend the regulations to expand Applicability of New Removal withholding of deportation or removal the scope of the rules of procedure to Provisions are consistent with the United States’ include new removal proceedings in The IIRIRA provides that the newly obligations under the 1967 Protocol provisions regarding motions to reopen created removal procedures and the new Relating to the Status of Refugees, and reconsider, jurisdiction and amended forms of relief available in except potentially in the case of an commencement of proceedings, removal proceedings which appear in aggravated felon who receives less than stipulated requests for orders, in title III–A of IIRIRA will apply to all a 5-year aggregate sentence. The absentia hearings, public access to individuals placed into removal Department proposes a regulatory hearings, and additional charges. The proceedings on or after April 1, 1997, interpretation of section 243(h)(3) that is proposed rules also add provisions and will not affect individuals who Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 449 were in deportation or exclusion 240(c) of the Act as revised by section Administrative Motions To Reopen and proceedings prior to April 1, 1997. See 304(a) of IIRIRA. In removal Reconsider Removal Proceedings Section 309(a) of IIRIRA. For this proceedings in which an alien is reason, the proposed rule preserves the charged with deportability, the Service Section 304(a) of IIRIRA added a former regulations relating to must establish deportability by clear number of motions procedures to the deportation and exclusion proceedings and convincing evidence. This replaces Act regarding the reopening or for those individuals who will continue the clear, convincing, and unequivocal reconsideration of a final order of on in such proceedings after April 1, standard set forth in Woodby v. INS, 385 removal. For the most part, these new 1997. The proposed rule preserves such U.S. 276 (1966). An applicant for statutory provisions encompass the new provisions by retaining current admission to the United States must procedures implemented by EOIR’s new regulatory provisions previously establish that he or she is clearly and motions and appeals regulation, which contained in 8 CFR parts 236, 242, and beyond a doubt entitled to be admitted took effect on July 1, 1996. However, the 244 within separate new subparts of and is not inadmissible. In the case of statute does place the time and number part 240. In addition, sections formerly an alien present in the United States restrictions for motions specifically on contained in parts 237 and 243 have without being admitted or paroled, once the alien. The proposed rule been retained in new subparts of part the Service establishes alienage, the implements this change by adding a 241. A more detailed description of the alien must prove that he or she is clearly provision to indicate that in removal entire reorganization of effected parts of and beyond a doubt entitled to be proceedings, the restrictions only apply title 8 is contained later in this admitted and is not inadmissible, unless to the alien and not to the Service. In supplementary information. the alien proves by clear and convincing addition, unlike the pre-IIRIRA evidence that he or she is lawfully regulations excepting motions to reopen The Notice to Appear (Form I–862) present pursuant to a prior admission. exclusion or deportation orders The charging document which rendered in absentia from both the 90- commences removal proceedings under Cancellation of Removal day and 1-motion restrictions, the section 240 of the Act will be referred The proposed rule provides for the statute only excepts motions to reopen to as the Notice to Appear, Form I–862, application by qualified individuals in removal orders rendered in absentia replacing the Order to Show Cause, removal proceedings for the new form of from the 90-day time period and not the Form I–221, that was used to commence relief created by section 304(a) of numerical restriction. The proposed rule deportation proceedings and the Notice IIRIRA: cancellation of removal. implements this change as well. to Detained Applicant of Hearing Before Cancellation of removal comes in two an Immigration Judge, Form I–110. The forms. The first form, available to lawful Proceedings To Review Asylum Claims Notice to Appear must contain nearly permanent residents, is similar to relief by Certain Aliens Not Eligible for all of the information that was required under section 212(c) of the pre-IIRIRA Section 240 Proceedings to be in the Form I–221. The regulations Act, except that only 5 years of the This rule established a new Notice of reflect the fact that section 304 of IIRIRA required 7 years of residence to Referral to Immigration Judge, Form I– did not retain the requirement that the statutorily qualify for this form of 863, to be used to institute limited Notice to Appear be provided in cancellation of removal need be fulfilled proceedings before an immigration Spanish; that the mandatory period as a lawful permanent resident. This judge. This referral form will be used by between service of a Notice to Appear means that up to 2 years of the 7 years immigration officers to initiate review and the date of an individual’s first can be satisfied with temporary by an immigration judge for asylum or hearing is 10 days rather than the 14 residence. This provision codifies the withholding of removal claims by Visa days required for the Order to Show interpretation by a number of Federal Waiver Pilot Program (VWPP) refusal Cause; that service of the Notice to circuit courts that a period of temporary cases and VWPP status violators, crew Appear by ordinary mail, rather than residence counts toward the 7-year members, aliens ordered removed certified mail, is sufficient if there is residency requirement for relief under pursuant to section 235(c) of the Act, proof of attempted delivery to the last section 212(c) of the pre-IIRIRA Act. aliens present pursuant to section The second form of cancellation of address provided by the alien and noted 101(a)(15)(S) of the Act, and alien removal resembles suspension of in the Central Address File; and that no stowaways found to have a credible fear deportation under section 244 of the written notice need be provided if the of persecution. This proceeding is pre-IIRIRA Act, except that an applicant alien has failed to provide his or her limited solely to the asylum or for the second form of cancellation of address as required under the amended withholding claim and no other forms of removal must demonstrate continuous Act. relief may be presented by the alien or physical presence for 10 years instead of In addition, the proposed rule considered by the immigration judge. implements the language of the 7 years, and must show ‘‘exceptional amended Act indicating that the time and extremely unusual hardship’’ Asylum officers will also use the and place of the hearing must be on the instead of ‘‘extreme hardship.’’ Further, Notice of Referral for expedited removal Notice to Appear. The Department will unlike suspension of deportation, this cases where the alien seeks review of a attempt to implement this requirement form of cancellation of removal is not ‘‘no credible fear’’ finding by the asylum as fully as possible by April 1, 1997. available for aliens who can only show officer in section 235(b)(1) proceedings Language has been used in this part of hardship to themselves. The proposed or for stowaways, prior to the execution the proposed rule recognizing that such rule also implements the availability of of the expedited removal order or automated scheduling will not be this second form of cancellation of removal of the stowaway. possible in every situation (e.g., power removal to a battered spouse or child In addition, the Notice of Referral will outages, computer crashes/downtime.) who can demonstrate 3 years of be used to institute an immigration continuous physical presence in the judge review of expedited removal Burdens of Proof in Removal United States and who shows that orders issued against aliens claiming to Proceedings removal would result in ‘‘extreme be lawful permanent residents, refugees The proposed regulation restates the hardship’’ to the battered spouse, his or or asylees. In such cases, the burden of proof language in section her child, or the battered child’s parent. immigration judge will review the 450 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules expedited removal order, which may order of removal, Subpart B—Family Apprehension, Custody, and Detention either be affirmed or canceled. Unity Program; 8 CFR part 238— of Aliens Existing regulations regarding Expeditious removal of aggravated This rule incorporates the changes deportable VWPP aliens who claim felons; 8 CFR part 239—Initiation of made to section 242 of the Act by asylum state that the alien will be removal proceedings; 8 CFR part 240, section 440(c) of the Antiterrorism and referred for a determination of Subpart A—Removal proceedings, Effective Death Penalty Act of 1996 deportability. The current regulations Subpart B—Cancellation of removal, (AEDPA), Public Law 104–132 as well for VWPP applicants arriving at ports- Subpart C—Voluntary departure, as section 303(a) of the IIRIRA. By of-entry are vague, stating only that the Subpart D—Exclusion of aliens (for enactment of AEDPA, Congress altered alien will be referred to an immigration proceedings commenced prior to April the provisions created by section 504 of judge for further inquiry. The proposed 1, 1997); Subpart E—Proceedings to the Immigration Act of 1990 (IMMACT), change will clarify that VWPP determine deportability of aliens in the Public Law 101–649, enacted November applicants and status violators are to be United States: Hearing and Appeal 29, 1990, relating to release of lawfully provided a hearing and appeal on the (commenced prior to April 1, 1997); asylum and withholding claim only. admitted aliens who had been convicted Existing regulations provide that a Subpart F—Suspension of deportation of aggravated felonies. The AEDPA crewman, stowaway, or alien and voluntary departure (for directed the Attorney General to detain temporarily excluded under section proceedings commenced prior to April aliens convicted of aggravated felonies 235(c) of the Act file an application for 1, 1997); Subpart G—Civil penalties for without bond and extended the asylum with the district director and failure to depart; 8 CFR part 241, mandatory detention provisions to that the district director forward it to an Subpart A—Post-hearing detention and aliens deportable for conviction of asylum officer for adjudication. The removal, Subpart B—Deportation of certain other felonies. The IIRIRA Attorney General has determined that Excluded Aliens (for hearings extended the mandatory detention these claims should be adjudicated by commenced prior to April 1, 1997), provisions to additional classes of an immigration judge. This Subpart C—Deportation of Aliens in the inadmissible and deportable aliens but determination to adjudicate the asylum United States (for hearings commenced provided an exception for certain claims for these classes of aliens in a prior to April 1, 1997); 8 CFR parts 237, witnesses. It also allowed the Attorney proceeding before an immigration judge 242, and 243 have been removed and General the option of a transition period is in response to recent case law holding reserved; 8 CFR part 244 will now for implementation of mandatory that stowaway asylum applicants must contain regulations pertaining to the detention. The INS exercised this be afforded the same asylum procedures Temporary Protected Status program. discretion and implemented the deemed necessary for other aliens. In transition period custody rules on Sections of the old regulations which October 9, 1996, effective for 1 year. The Marincas v. Lewis, 92 F.3d 195, 200–201 are still applicable to proceedings (3rd Cir. 1996), the court held that the Act is very clear as to which aliens may commenced prior to April 1, 1997, have be released. This rule proposes to plain language of the Refugee Act left no been retained, but moved to new parts room to construe the statue to permit amend the Service’s regulations to of the regulations as separate subparts differing asylum procedures for comply with the amended Act by according to topic. For example, the stowaways. Although the Department removing the release from custody regulations relating to the conduct of with that holding, the Attorney General provisions for aliens who may no longer has found that providing a proceeding proceedings, formerly contained in 8 be released. These amendments to the before an immigration judge to hear the CFR part 242, have been moved to 8 regulations will take effect upon the asylum claim will address the concerns CFR part 240, which contains termination of the transition period. As raised in Mirancas, while remaining regulations for the conduct of removal for non-criminal aliens, the rule reflects consistent with the statutory directives proceedings. the new $1,500 minimum bond amount to limit due process for these classes of Most sections of the regulations have specified by IIRIRA. Otherwise, the aliens. As required by IIRIRA, a not been retained in this manner. They proposed rule essentially preserves the stowaway will receive a credible fear have been totally revised, in conformity status quo for bond determination by determination by an asylum officer prior with the new statute. In some instances, the Service and bond redetermination to the referral to an immigration judge. these regulations distinguish between proceedings before immigration judges. Despite being applicants for admission, Reorganization of Certain Regulatory situations involving aliens aliens who are present without having Sections ‘‘grandfathered’’ under former statutory authority and those encompassed by the been admitted (formerly referred to as The IIRIRA substantially revised provisions of IIRIRA. For example, new aliens entering without inspection) will sections of the Act relating to the arrest § 252.2(b) contains separate provisions be eligible for bond and bond of aliens suspected of inadmissibility to for alien crewmen who arrived prior to redetermination. or unlawful presence in the United April 1, 1997, and those who arrive after States, detention of such aliens prior to Expedited Deportation Procedures for that date. and during removal proceedings, the Aliens Convicted of Aggravated conduct of removal proceedings, and Because the Service and EOIR have Felonies Who Are Not Lawful ancillary issues such as voluntary concerns about the serious restructuring Permanent Residents departure and available forms of relief. of these regulations, the public is This rule incorporates the changes The Service and EOIR have jointly invited to comment on the approach made to section 242A(b) of the Act by undertaken a complete revision of the taken by this rulemaking. In particular, section 442 of the AEDPA and section affected parts of title 8, to bring the the Service wishes to solicit comments 304(c) of the IIRIRA. By enactment of relevant regulatory parts into alignment concerning any possible unintended the AEDPA, Congress made several with the new sections of the Act. The consequences of the restructuring, such changes to the expedited administrative newly revised sections are organized in as the inclusion of new sections which deportation procedure authorized under the following manner: 8 CFR part 236, encompass aliens entitled to section 130004 of the Violent Crime Subpart A—Detention of aliens prior to consideration under ‘‘old’’ provisions. Control and Law Enforcement Act of Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 451

1994, Public Law 103–322. Some of and duration of voluntary departure. release and supervision of aliens who these changes were modified by the Under the new law, voluntary departure cannot be removed during the period. A IIRIRA and one was eliminated. This is clearly meant to be granted to aliens district director may issue a warrant of rule proposes to amend the Service’s illegally in the United States who are removal based on a final administrative regulations to comply with the amended able and willing to depart in a relatively order of removal. The warrant of Act as follows: aliens who have lawful short period of time. It will no longer be removal will authorize the Service to permanent residence on a conditional available to those who are seeking to take an alien in the United States into basis under section 216 of the Act are significantly extend their time in the custody during the removal period. The subject to expedited administrative United States for other reasons. If fact, Service is required to assume custody of deportation procedures and have been the time periods which will be allowed any alien within the United States once included in the regulation. Since section for voluntary departure are such that the 90-day removal period begins, as 238(b)(5) of the Act states that an alien they meet or exceed the normal defined in section 241 of the Act, and subject to these proceedings is ineligible processing time for applications for detain the alien until removal or for any relief from removal, all employment authorization. In light of expiration of the removal period. At the references to prima facie eligibility for these changes, the Department is expiration of the removal period, the relief and to relief from deportation eliminating the provisions currently Service has the discretion to release an have been removed. This revision also contained in 8 CFR parts 242 and 274a alien. If the alien shows to the eliminates references to release from which permit the granting of work satisfaction of the district director that custody, since aliens subject to these authorization to aliens who have been the alien is not a threat to the proceedings are now statutorily given voluntary departure. community and is likely to report for ineligible for release as a result of New section 240B of the Act and the removal, the district director may changes to other sections of the Act. corresponding regulations represent a release the alien on an order of significant departure from the supervision. As a condition or release, Voluntary Departure predecessor provisions for voluntary an authorized officer may require the The proposed rule outlines how departure. Public comments regarding posting of a bond, impose restrictions voluntary departure will be handled at the Department’s approach to on conduct, and require periodic various stages of proceedings. Prior to implementation of this provision will be reporting to a designated officer. The the initiation of proceedings, the Service particularly welcome. district director may grant employment has sole jurisdiction to grant voluntary Reinstatement of Removal Orders authorization as specified in the Act. departure for a period not to exceed 120 The district director retains the Against Aliens Illegally Reentering days. The Service may impose any authority to grant humanitarian stays of conditions it deems necessary to ensure Section 241(b)(5) of the Act requires removal. the alien’s timely departure from the the Attorney General to reinstate the This rule restates the principle, Untied States, including the posting of removal order for an alien who illegally previously found at § 243.5, that an a bond, continued detention pending reenters the United States after having alien who departs the United States departure and removal under been removed or after having departed while a final order is outstanding has safeguards. After proceedings have been voluntarily under a removal order. executed the order. commenced and at any time up to 30 Removal would be accomplished under days subsequent to the master calendar, the proposed rule without referral to an Detention and Removal of Stowaways the immigration judge may grant Immigration Court. Although the Act The arrival of stowaways in the voluntary departure for a period not to previously contained a provision for United States, particularly aboard cargo exceed 120 days. In each instance, the reinstatement of a final order of vessels, has long been a problem for alien will be required to present to the deportation, the accompanying both the transportation companies and Service travel documents sufficient to regulation required the issuance of an the Service. Section 308(e) of IIRIRA has assure lawful entry into the country to order to show cause and a hearing stricken former section 273(d) of the which the alien is departing, unless before an immigration judge. This Act, which governed stowaways and such document is not necessary for the resulted in limited use of the provision. section 305 of IIRIRA has clearly alien’s return. The proposed rule provides a procedure defined the responsibilities for An alien may be granted voluntary for a district director to reinstate a final stowaways and costs of detention in the departure at the conclusion of order upon establishing identity and new section 241 of the Act. All proceedings if the immigration judge unlawful reentry of a previously stowaways are deemed to be finds that the alien meets the conditions deported or removed alien found in the inadmissible under the Act and are not of section 240B(b) of the Act. The judge United States. Once identity is affirmed, entitled to a hearing on admissibility. may impose such conditions as he or the original order will be executed. Those with a credible fear of she deems necessary to ensure the persecution may seek asylum in alien’s timely departure from the United Detention and Removal of Aliens accordance with 8 CFR part 208 in States, but in all cases, the alien shall be Ordered Removed proceedings before an immigration required, within 5 days of the order, to This rule incorporates the changes judge. post a voluntary departure bond of no made to section 241 of the Act by Under the provisions of section 241 of less than $500. In order for the bond to section 305(a) of IIRIRA. Section 241 of the Act, the carrier (which includes the be canceled, the alien must provide the Act now relates to the period for owner, agent, master, commanding proof of departure to the district removal of aliens, post-order detention officer, person in charge, purser, or director. If the alien fails to depart, or and removal of aliens, reinstatement of consignee) is responsible for detaining to meet any of the conditions attached final orders, and detention and removal the stowaways on board the vessel or to the grant of voluntary departure, such of stowaways. aircraft (or at another approved location) order will vacate and the alternate order This rule provides for the assumption until completion of the inspection, and of deportation will stand. of custody during the removal period, may not permit the alien to leave the Section 304(a) of IIRIRA makes allows detention beyond the period, and vessel or aircraft, unless authorized by significant changes to both the nature provides condition for discretionary the Service for either medical treatment, 452 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules detention by the Service, or removal of arriving illegally in the United States 444 is widely counterfeited. The Service the stowaways. The Service may order should have no other benefit available has been unable to demonstrate that that the stowaway be removed on the to them, and should not be permitted to there is a connection between the limits vessel or aircraft of arrival when that is delay their removal through an on travel by persons issued Forms I–444 the most practical manner of removal. application for adjustment of status. and immigration violations. These With the mutual goal of removing Any other arriving alien who is eligible restrictions should be lifted and stowaways by the most expeditious and to receive an immigrant visa will be applicants for admission should be secure means, the Service will generally required to return to his or her country admitted as any other person in favor any reasonable request to remove of residence and request it through the possession of a B–1 or B–2 visa is the stowaway on other than the vessel consular process available to all aliens admitted. or aircraft of arrival. The carrier must outside of the United States. If the This regulation proposes to remove make all travel arrangements, including Service decides as a matter of references to the issuance of the form obtaining any necessary travel prosecutorial discretion, not to initiate and the section requiring a fee for documents. removal proceedings but to parole the issuance of Form I–444. A provision is Since asylum-seeking stowaways may arriving alien, the alien will be able to added requiring the issuance of Form I– not be removed pending a final decision apply for adjustment of status before the 94, and collection of the fee, for on their asylum claim, which may district director. Mexican nationals seeking to enter for sometimes extend for a lengthy period, more than 72 hours and/or to travel Disposition of Cases of Aliens Arrested the statute limits the detention liability further than 25 miles from the United in the United States of the owner of the vessel or aircraft. States/Mexico border. The Form I–94 The owner is now responsible for a The regulation proposes to amend issued to a B–2 visitor for pleasure is period of time needed to determine § 287.3 to differentiate the actions that normally valid for 6 months. The whether the stowaway has a credible must be taken when an alien is proposed rule provides in § 235.1(f) that fear of persecution, and a reasonable apprehended entering or attempting to a Form I–94 issued at a land border period, beginning when a credible fear enter the United States in violation of port-of-entry is valid for multiple entries is found to exist, during which the the immigration laws, or is otherwise unless otherwise indicated. asylum application may be considered. found in the United States in violation The statute and regulations allow for up of those laws. Disposition of the case Streamlining and Updating of to 72 hours to arrange and conduct the will vary depending on the Regulations credible fear interview, although the circumstances of entry or attempted The President has directed each Service anticipates that this will occur entry, or the specific violation with agency to undertake a review of its as expeditiously as possible, depending which the alien is charged. This section regulations for the purpose of reducing on the location and circumstances of the is amended to include those cases that the regulations or, when possible, stowaway’s arrival. If the stowaway is may now be processed under the rendering them more readable and allowed to pursue his or her asylum expedited removal provisions of section comprehensible. See E.O. 12866, 58 FR application, the statute provides 15 235(b)(1) of the Act, if such provisions 51,735 (1993). The Service is engaging working days, excluding Saturdays, are invoked by the Commissioner. in a thorough line-by-line review of all Sundays, and holidays, for the asylum Elimination of Mexican Border Visitor’s regulations in Title 8 of the Code of claim to be heard, at the expense of the Permit Federal Regulations. owner of the vessel or aircraft. Any Updated Sections detention required beyond that time The Mexican Border Visitor’s Permit, period will be at the expense of the Form I–444, is a record of entry issued References to the former section Service. The carrier remains liable for by the Service at land border ports-of- 212(a)(17) of the Act dealing with the removal, including removal expenses, if entry along the United States/Mexico Attorney General’s consent to apply for the alien is denied asylum. border to holders of Nonresident Alien readmission have been removed from Border Crossing Cards, Forms I–186 and § 217.2(b) and replaced with the current Adjustment of Status I–586. The Nonresident Alien Border citation. References throughout 8 CFR Adjustment of status is granted in the Crossing Card is issued in place of a part 235 to special inquiry officers have discretion of the Attorney General. nonimmigrant visa. Currently, Form I– been replaced with the title Consistent with Congress’ intent that 444 is issued when the requested visit ‘‘immigration judge.’’ References to arriving aliens, as that term is defined to the United States will be for more regional commissioners have been in § 1.1(g), be removed in an expedited than 72 hours but less than 30 days in replaced with references to regional manner through the procedures duration or when requested travel is directors. The regulatory language provided in section 235(b)(1) of the Act, more than 25 miles from the United contained in §§ 238.1, 238.2, 238.3, and the Attorney General has determined States/Mexico border but within the five 238.5 has been moved to 8 CFR part that she will not favorably exercise her states of Arizona, California, Nevada, 233, to conform with redesignation of discretion to adjust the status of arriving New Mexico, or Texas. The Service also those statutory sections by the IIRIRA. aliens who are ordered removed issues Form I–444 to Mexican nationals Lists of carriers signatory to agreements pursuant to section 235(b)(1) of the Act who are in possession of valid Mexican with the Service for carriage to transit or who are placed in removal passports and multiple-entry passengers and preinspection have been proceedings under section 240 of the nonimmigrant visas requesting removed form the regulations and will Act. Of course, any such alien who has admission to the United States under be maintained by the Headquarters been persecuted or has a reasonable fear the limitations described above. Office of Inspections. of persecution may request asylum in The current Form I–444 has been in expedited removal. Arriving aliens who use since 1983 and the Service now Terminated Programs are granted asylum may then adjust issues over 200,000 of these forms per References to initial (not replacement) their status outside of the removal month. Due largely to its lack of security application procedures in § 235.12 for proceeding context. In all other features and the absence of Form I–777, Northern Mariana Card, instances, those apprehended after standardization between ports, Form I– have been removed as the application Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 453 period for that form expired in July Streamlining state and local governments. The 1990. Section 235.9, dealing with Section 211.1. has been restructured Service projects significant increases in refugee admissions, has been removed in its entirety to make it easier to detention-related costs due to the as that procedure is no longer followed comprehend. The provisions relating to provisions of IIRIRA which mandate the and its subject is now governed by admission of children of lawful custody of criminal aliens who have section 207 of the Act. Provisions in permanent residents formerly contained committed two or more crimes § 211.2 dealing with waivers of passport in § 211.2 have been consolidated into involving moral turpitude, aliens requirements for third-preference the general waiver provisions of section convicted of firearms offenses, and immigrants have been removed as that § 211.1. Language formerly in § 211.2(b) aliens who have been convicted of an category of immigrant no longer exists. which referred to other code sections by aggravated felony. The type of crime Terms which were appropriate in description has been replaced by a that will qualify as an ‘‘aggravated referring to exclusion and deportation simple citation. Sections 211.3, 211.4, felony’’ has been greatly expanded procedures have been changed to reflect and 235.9 have been removed and under IIRIRA. In addition, all aliens, the single removal process. reserved as their contents are addressed even non-criminal aliens, who are subject to a final administrative order of Removal of Purely Procedural Matters in other sections of this part. The 8 CFR part 251, relating to alien crewmen, removal must be held in custody until Involving Only Internal Service the alien can be removed from the Processes longshore work, and vessels has been restructured and clarified. United States. If the person is not The discussion of internal Service Unnecessary recitals of the law have removed within 90 days he or she may procedures regarding the admission of been removed in the following: be released from custody. immigrant children formerly found in § 211.5(b), relating to forfeiture of an I– The Commissioner has notified § 211.4 has been removed. Language in 551 upon loss of resident status by a Congress pursuant to section 303(b) of § 211.5 relating to admission procedures commuter alien; and § 217.1, which IIRIRA that the Service lacks sufficient for alien commuters has been removed merely restates statutory language space to immediately implement the in favor of placing such information into regarding eligibility for admission under mandatory custody provisions. This Service Field Manuals. Examples the Visa Waiver Pilot Program. The 8 notification will delay for 1 year full dealing with alien crewmen, as well as CFR part 217 has been streamlined by implementation of the new mandatory Canadian nationals, have been removed consolidating various definitions custody provisions. Section 303(b) also provides for an additional 1-year delay from § 235.1. Part 232 of 8 CFR dealing throughout that part into one section. in implementation of the mandatory with the procedures for notification of Confusing language in § 217.3 has been custody provisions upon a second the master or agent of an arriving vessel streamlined with regard to readmission certification that space and personnel when arriving aliens were placed in under the Visa Waiver Pilot Program of are inadequate to comply with the detention for mental or physical an alien who has departed to contiguous requirement. The Service estimates that examination has been removed since it territory or an adjacent island has been the cost to enforce the requirement to is addressed in Service manuals. streamlined. detain all criminal aliens will be at least Language dealing with procedures for Other Changes $205,000,000. Of that total, personnel completion of entry documents for In addition, conforming and purely costs account for $65,284,000 which nonimmigrant aliens, Mexican border include detention and deportation crossers, bearers of Mexican diplomatic editorial or grammatical revisions have been made, as appropriate. officers ($32,873,000), investigators passports, and paroled aliens in 8 CFR ($25,501,000), legal proceedings part 235 has been removed. Language in Regulatory Flexibility Act personnel ($4,968,000), and § 235.2 relating to deferred inspection The Attorney General, in accordance administrative support ($1,942,000). procedures for incapacitated or with the Regulatory Flexibility Act (5 Non-personnel requirements are incompetent aliens has also been U.S.C. 605(b)), has reviewed this projected to be at least $139,732,000 removed. Section 235.4 dealing solely regulation and, by approving it, certifies which includes increases in bedspace with Service procedures for endorsing that the rule will not have a significant and related alien custody requirements documents evidencing admission has adverse economic impact on a ($82,782,000—funds 3,600 beds @ been revised to address the withdrawal substantial number of small entities $63.00 per day), increases in alien travel of an application for admission. The because of the following factors. This expenses ($36,000,000–3,600 removals former § 251.1(d), dealing with the rule affects only Federal government @ $1,000 each), and detention vehicle notations to be made on Service forms operations by codifying statutory expenses ($20,950,000). The Service is when inspecting crewmen, has been amendments to the Immigration and currently in the process of projecting the incorporated into Service manuals. Nationality Act primarily regarding the cost of the IIRIRA requirements that we Elimination of Duplication examination, detention, and removal of detain all aliens with administratively aliens from the United States. It affects final orders of deportation pending their Duplicative references have been only individuals and does not impose removal. removed. Language in § 217.2, relating any reporting or compliance In addition to these detention related to eligibility for the Visa Waiver Pilot requirements on small entities. costs, the Service estimates that the Program, has been removed as it merely expenses for training employees on the restates the eligibility requirements Executive Order 12866 provisions of the new law and the contained in the Act. Language in This rule is considered by the regulations will be $2,977,500. The cost § 217.3 and throughout relating to Visa Department of Justice to be a to the Service related to additional Waiver Pilot Program participants’ ‘‘significant regulatory action’’ under forms or changes needed to current eligibility for other immigration benefits Executive Order 12866, section 3(f), forms is estimated to be $2,000,000 and readmission after departure to because it will have a significant (until the final list of form requirements contiguous territory has been removed economic impact on the Federal is completed it is not possible to more as it merely restates the Act and is government in excess of $100,000,000. accurately assess this cost). Finally, the covered by other regulations in this part. No economic impact is anticipated for Department believes there may be some 454 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules increases needed for immigration judges Executive Order 12988 8 CFR Part 216 to review credible fear determinations This proposed rule meets the Administrative practice and made under section 235(b) of the INA. applicable standards set forth in section procedure, Aliens. The EOIR estimates increases in its 3(a) and 3(b)(2) of Executive Order costs related to IIRIRA-mandated 12988. 8 CFR Part 217 immigration judge review of credible Air carriers, Aliens, Maritime carriers, Paperwork Reduction Act fear determinations (which must be Passports and visas. made under stringent time frames) and The information collection the prompt immigration judge review requirements contained in this rule have 8 CFR Part 221 which IIRIRA requires of certain been forwarded to the Office of Aliens, Surety bonds. expedited removal orders entered Management and Budget under the against aliens claiming to be lawful Paper Reduction Act. The OMB control 8 CFR Part 223 permanent residents, asylees or numbers for these collections are Aliens, Reporting and recordkeeping refugees. Further, EOIR projects costs contained in 8 CFR 299.5, Display of requirements. associated with the need for an control numbers. Immigration Court presence in nearly 8 CFR Part 232 List of Subjects ever port-of-entry, which will result Aliens, Public health. from the above-mentioned credible fear 8 CFR Part 1 review and expedited removal review 8 CFR Part 233 process. Also, there will be costs related Administrative practice and procedure, Immigration. Administrative practice and to the overall need for an increased procedure, Air carriers, Government Immigration Court presence at existing 8 CFR Part 3 contracts, Travel. Service detention centers to support the processing of the additional detainees Administrative practice and 8 CFR Part 234 procedure, Immigration, Organization that will result from the implementation Air carriers, Aircraft, Airports, Aliens. of this rule. Similarly, EOIR anticipates and functions (Government agencies). a need for construction of new 8 CFR Part 103 8 CFR Part 235 Immigration Courts at new detention Administrative practice and Administrative practice and facilities the Service may open as a procedure, Aliens, Immigration, result of this rule’s implementation. procedure, Authority delegations (Government agencies), Reporting and Reporting and recordkeeping Although there are still a number of recordkeeping requirements. requirements. unknown variables which could affect the total costs to EOIR to implement its 8 CFR Part 204 8 CFR Part 236 part of the new expedited removal Administrative practice and Administrative practice and process and to respond to the increased procedure, Immigration, Reporting and procedure, Aliens, Immigration. number of detained individuals in recordkeeping requirements. proceedings under this rule, EOIR 8 CFR Part 237 estimates that the total annual cost for 8 CFR Part 207 Aliens. EOIR could be as high as $25,000,000. Administrative practice and 8 CFR Part 238 Of that total, the cost for hiring new procedure, Refugees, Reporting and immigration judges and legal support recordkeeping requirements. Administrative practice and staff is projected to be $21,300,000. The procedure, Aliens. cost for new video and audio 8 CFR Part 208 8 CFR Part 239 teleconfering equipment is estimated at Administrative practice and $3,000,000. Training costs are expected procedure, Aliens, Immigration, Administrative practice and to be approximately $400,000. Finally, Reporting and recordkeeping procedure, Aliens, Immigration, forms and other support requirements requirements. Reporting and recordkeeping are estimated to cost $300,000. requirements. 8 CFR Part 209 Small Business Regulatory Enforcement 8 CFR Part 240 Act of 1996 Aliens, Immigration, Refugees. Administrative practice and At this time the Department considers 8 CFR Part 211 procedure, Aliens, Immigration. this rule a ‘‘major rule’’ as defined in 5 Immigration, Passports and visas, 8 CFR Part 241 U.S.C. § 804(2). Reporting and recordkeeping Executive Order 12612 requirements. Administrative practice and procedure, Aliens, Immigration. The regulations proposed herein will 8 CFR Part 212 8 CFR Part 242 not have substantial direct effects on the Administrative practice and States, on the relationship between the procedure, Aliens, Immigration, Administrative practice and National Government and the States, or Passports and visas, Reporting and procedure, Aliens, Immigration. on the distribution of power and recordkeeping requirements. 8 CFR Part 243 responsibilities among the various levels of government. Therefore, in 8 CFR Part 213 Administrative practice and accordance with Executive Order 12612, Immigration, Surety bonds. procedure, Aliens. it is determined that this rule does not 8 CFR Part 244 have sufficient Federalism implications 8 CFR Part 214 to warrant the preparation of a Administrative practice and Administrative practice and Federalism Assessment. procedure, Aliens. procedure, Aliens. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 455

8 CFR Part 245 2. Section 1.1 is amended by revising a greater period of departure time Aliens, Immigration, Reporting and paragraph (l), and by adding new should have been fixed. recordkeeping requirements. paragraphs (q) and (r) to read as follows: (3) Decisions of Immigration Judges in removal proceedings, as provided in 8 8 CFR Part 246 § 1.1 Definitions. CFR part 240. * * * * * Administrative practice and * * * * * (l) The term immigration judge means procedure, Aliens, Immigration. (7) Determinations relating to bond, an attorney whom the Attorney General parole, or detention of an alien as 8 CFR Part 248 appoints as an administrative judge provided in 8 CFR part 236, Subpart A Aliens, Immigration, Reporting and within the Executive Office for and 8 CFR part 240, Subpart E. Immigration Review, qualified to recordkeeping requirements. * * * * * conduct specified classes of (9) Decisions of Immigration Judges in 8 CFR Part 249 proceedings, including a hearing under asylum proceedings pursuant to section 240 of the Act. An immigration Aliens, Immigration, Reporting and § 208.2(b) of this chapter. judge shall be subject to such recordkeeping requirements. (10) Decisions of Immigration Judges supervision and shall perform such relating to Temporary Protected Status 8 CFR Part 251 duties as the Attorney General shall as provided in 8 CFR part 244. Air carriers, Aliens, Maritime carriers, prescribe, but shall not be employed by * * * * * Reporting and recordkeeping the Immigration and Naturalization Service. 5. Section 3.2 is amended by: requirements, Crewmen. a. Revising the section heading; * * * * * 8 CFR Part 252 b. Revising paragraph (b)(2); (q) The term arriving alien means an c. Revising paragraph (c)(2) and (c)(3), Air carriers, Airmen, Aliens, Maritime alien who seeks admission to or transit and by carriers, Reporting and recordkeeping through the United States, as provided d. Revising paragraphs (d) through (f), requirements, Crewmen. in 8 CFR part 235, at a port-of-entry, or to read as follows: 8 CFR Part 253 an alien who is interdicted in international or United States waters § 3.2 Reopening or reconsideration before Air carriers, Airmen, Aliens, Maritime and brought into the United States by the Board of Immigration Appeals. carriers, Reporting and recordkeeping any means, whether or not to a * * * * * requirements, Seamen. designated port-of-entry, and regardless (b) * * * 8 CFR Part 274a of the means of transport. An arriving (2) A motion to reconsider a decision alien remains such even if paroled must be filed with the Board within 30 Administrative practice and pursuant to section 212(d)(5) of the Act. days after the mailing of the Board procedure, Aliens, Employment, (r) the term respondent means a decision or on or before July 31, 1996, Penalties, Reporting and recordkeeping person named in a Notice to Appear whichever is later. A party may file only requirements. issued in accordance with section 239(a) one motion to reconsider any given 8 CFR Part 286 of the Act, or in an Order to Show Cause decision and may not seek issued in accordance with § 242.1 of this reconsideration of a decision denying a Air carriers, Immigration, Reporting chapter as it existed prior to April 1, previous motion to reconsider. In and recordkeeping requirements. 1997. removal proceedings pursuant to section 8 CFR Part 287 240 of the Act, an alien may file only PART 3ÐEXECUTIVE OFFICE FOR one motion to reconsider a decision that Immigration, Law enforcement IMMIGRATION REVIEW officers. the alien is removable from the United States. 3. The authority citation for part 3 8 CFR Part 299 (c) * * * continues to read as follows: Immigration, Reporting and (2) Except as provided in paragraph Authority: 5 U.S.C. 301; 8 U.S.C. 1103, recordkeeping requirements. (c)(3) of this section, a party may file 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, only one motion to reopen deportation 8 CFR Part 316 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; or exclusion proceedings (whether 3 CFR, 1949–1953 Comp., p. 1002. Citizenship and naturalization, before the Board or the Immigration Reporting and recordkeeping 4. Section 3.1 is amended by revising Judge) and that motion must be filed no requirements. paragraphs (b)(1), (b)(2), (b)(3), (b)(7), later than 90 days after the date on (b)(9), and (b)(10) to read as follows: which the final administrative decision 8 CFR Part 318 was rendered in the proceeding sought § 3.1 General authorities. Citizenship and naturalization. to be reopened. Except as provided in * * * * * paragraph (c)(3) of this section, an alien 8 CFR Part 329 (b) * * * may file only one motion to reopen Citizenship and naturalization, (1) Decisions of Immigration Judges in removal proceedings (whether before Military personnel, Veterans. exclusion cases, as provided in 8 CFR the Board or the Immigration Judge) and Accordingly, chapter I of title 8 of the part 236, Subpart D. that motion must be filed no later than Code of Federal Regulations is proposed (2) Decisions of Immigration Judges in 90 days after the date on which the final to be amended as follows: deportation cases, as provided in 8 CFR administrative decision was rendered in part 240, Subpart E, except that no the proceeding sought to be reopened. PART 1ÐDEFINITIONS appeal shall lie from an order of an (3) In removal proceedings pursuant Immigration Judge under 8 CFR part to section 240 of the Act, the time 1. The authority citation for part 1 is 240, Subpart F, granting voluntary limitation set forth in paragraph (c)(2) of revised to read as follows: departure within a period of at least 30 this section shall not apply to a motion Authority: 8 U.S.C. 1101. days, if the sole ground of appeal is that to reopen filed pursuant to the 456 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules provisions of § 3.23(b)(4)(ii). The time made in the case. Execution of such 11. Section 3.12 is amended by and numerical limitations set forth in decision shall proceed unless a stay of revising the last sentence, and adding a paragraph (c)(2) of this section shall not execution is specifically granted by the new sentence at the end of the section, apply to a motion to reopen Board, the Immigration Judge, or an to read as follows: proceedings: authorized officer of the Service. § 3.12 Scope of rules. (i) Filed pursuant to the provisions of * * * * * § 3.23(b)(4)(iii)(A)(1) or ** * Except where specifically § 3.23(b)(4)(iii)(A)(2); Subpart BÐImmigration Court stated, these rules apply to matters (ii) To apply or reapply for asylum or before Immigration Judges, including, b. In Part 3, the heading of Subpart B but not limited to, deportation, withholding of deportation based on is revised as set forth above. changed circumstances arising in the exclusion, removal, bond, rescission, 7. Section 3.9 is revised to read as departure control, and asylum country of nationality or in the country follows: to which deportation has been ordered, proceedings. The sole procedures for if such evidence is material and was not § 3.9 Chief Immigration Judge. review of credible fear determinations available and could not have been The Chief Immigration Judge shall be by Immigration Judges are provided for discovered or presented at the previous responsible for the general supervision, in § 3.42. hearing; direction, and scheduling of the 12. Section 3.13 is revised to read as (iii) Agreed upon by all parties and Immigration Judges in the conduct of follows: jointly filed. Notwithstanding such the various programs assigned to them. § 3.13 Definitions. agreement, the parties may contest the The Chief Immigration Judge shall be issues in a reopened proceeding; or assisted by Deputy Chief Immigration As used in this subpart: (iv) Filed by the Service in exclusion Judges and Assistant Chief Immigration Administrative control means or deportation proceedings when the Judges in the performance of his or her custodial responsibility for the Record basis of the motion is fraud in the duties. These shall include, but are not of Proceeding as specified in § 3.11. original proceeding or a crime that limited to: Charging document means the written would support termination of asylum in (a) Establishment of operational instrument which initiates a proceeding accordance with § 208.22(f) of this policies; and before an Immigration Judge. For chapter. (b) Evaluation of the performance of proceedings initiated prior to April 1, 1997, these documents include an Order * * * * * Immigration Courts, making appropriate reports and inspections, and taking to Show Cause, a Notice to Applicant (d) Departure, deportation, or for Admission Detained for Hearing removal. A motion to reopen or a corrective action where indicated. 8. Section 3.10 is revised to read as before Immigration Judge, and a Notice motion to reconsider shall not be made follows: of Intention to Rescind and Request for by or on behalf of a person who is the Hearing by Alien. For proceedings subject of exclusion, deportation, or § 3.10 Immigration Judges. initiated after April 1, 1997, these removal proceedings subsequent to his Immigration Judges, as defined in 8 documents include a Notice to Appear, or her departure from the United States. CFR part 1, shall exercise the powers a Notice of Referral to Immigration (e) Judicial proceedings. Motions to and duties in this chapter regarding the Judge, and a Notice of Intention to reopen or reconsider shall state whether conduct of exclusion, deportation, Rescind and Request for Hearing by the validity of the exclusion, removal, and asylum proceedings and Alien. deportation, or removal order has been such other proceedings which the Filing means the actual receipt of a or is the subject of any judicial Attorney General may assign them to document by the appropriate proceeding and, if so, the nature and conduct. Immigration Court. date thereof, the court in which such 9. Section 3.11 is revised to read as Service means physically presenting proceeding took place or is pending, follows: or mailing a document to the and its result or status. In any case in appropriate party or parties; except that which an exclusion, deportation, or § 3.11 Administrative control Immigration Courts. an Order to Show Cause or Notice of removal order is in effect, any motion to Deportation Hearing shall be served in reopen or reconsider such order shall An administrative control Immigration Court is one that creates person to the alien, or by certified mail include a statement by or on behalf of to the alien or the alien’s attorney and the moving party declaring whether the and maintains Records of Proceedings for Immigration Courts within an a Notice to Appear or Notice of Removal subject of the order is also the subject Hearing shall be served to the alien in of any pending criminal proceeding assigned geographical area. All documents and correspondence person, or if personal service is not under the Act, and, if so, the current practicable, shall be served by regular status of the proceeding. If a motion to pertaining to a Record of Proceeding shall be filed with the Immigration mail to the alien or the alien’s attorney reopen or reconsider seeks discretionary of record. relief, the motion shall include a Court having administrative control over that Record of Proceeding and shall 13. Section § 3.14 is amended by: statement by or on behalf of the moving a. Revising paragraph (a), and by party declaring whether the alien for not be filed with any other Immigration Court. A list of the administrative b. Adding a new paragraph (c) to read whose relief the motion is being filed is as follows: subject to any pending criminal control Immigration Courts with their prosecution and, if so, the nature and assigned geographical areas will be § 3.14 Jurisdiction and commencement of current status of that prosecution. made available to the public at any proceedings. (f) Stay of deportation. Except where Immigration Court. (a) Jurisdiction vests, and proceedings a motion is filed pursuant to the Subpart CÐImmigration CourtÐRules before an Immigration Judge commence, provisions of §§ 3.23(b)(4)(ii) and of Procedure when a charging document is filed with 3.23(b)(4)(iii)(A), the filing of a motion the Immigration Court by the Service. to reopen or a motion to reconsider shall 10. In part 3, the heading of Subpart The charging document must include a not stay the execution of any decision C is revised as set forth above. certificate showing service on the Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 457 opposing party pursuant to § 3.32 which EOIR–33 to the Immigration Court § 3.20 Change of venue. indicates the Immigration Court in where the charging document has been (a) Venue shall lie at the Immigration which the charging document is filed. filed, or if venue has been changed, to Court where jurisdiction vests pursuant However, no charging document is the Immigration Court to which venue to § 3.14. required to be filed with the has been changed. * * * * * Immigration Court to commence bond 22. Section 3.23 is amended by § 3.16 [Amended] proceedings pursuant to §§ 3.19, revising the section heading and 236.1(d) and 240.2(b) of this chapter or 15. Section 3.16(b) is amended by paragraph (b) to read as follows: credible fear determinations pursuant to revising the term ‘‘respondent/ § 208.30 of this chapter. § 3.23 Reopening or Reconsideration applicant’’ to read ‘‘alien’’. before the Immigration Court. * * * * * (c) Immigration Judges have § 3.17 [Amended] * * * * * (b) Before the Immigration Court. (1) jurisdiction to administer the oath of 16. Section 3.17(a) is amended in the In general. An Immigration Judge may allegiance in administrative first sentence by revising the term upon his or her own motion at any time, naturalization ceremonies conducted by ‘‘respondent/applicant’’ to read ‘‘alien’’, or upon motion of the Service or the the Service in accordance with and by revising the phrase ‘‘the alien, reopen or reconsider any case in § 337.2(b) of this chapter. appropriate EOIR form’’ to read ‘‘Form which he or she has made a decision, 14. Section 3.15 is amended by: EOIR–28’’. unless jurisdiction is vested with the a. Revising the section heading; Board of Immigration Appeals. Subject b. Amending paragraph (b) 17. Section 3.18 is revised to read as to the exceptions in this paragraph and introductory text and paragraph (b)(6), follows: paragraph (b)(4) of this section, a party by adding the phrase ‘‘and Notice to § 3.18 Scheduling of cases. may file only one motion to reconsider Appear’’ immediately after the phrase and one motion to reopen proceedings. ‘‘Order to Show Cause’’; (a) The Immigration Court shall be A motion to reconsider must be filed c. Redesignating paragraph (c) as (d); responsible for scheduling cases and d. Adding a new paragraph (c); and by providing notice to the government and within 30 days of the date of entry of a e. Revising newly redesignated the alien of the time, place, and date of final administrative order of removal, paragraph (d), to read as follows: hearings. deportation, or exclusion. A motion to reopen must be filed within 90 days of § 3.15 Contents of the order to show cause (b) In removal proceedings pursuant the date of entry of a final and notice to appear and notification of to section 240 of the Act, the Service administrative order of removal, change of address. shall provide in the Notice to Appear, deportation, or exclusion. A motion to * * * * * the time, place and date of the initial reopen or to reconsider shall not be (c) Contents of the Notice to Appear removal hearing, where practicable. If made by or on behalf of a person who for Removal Proceedings. In the Notice that information is not contained in the is the subject of removal, deportation, or to Appear for removal proceedings, the Notice to Appear, the Immigration Court exclusion proceedings subsequent to his Service shall provide the following shall be responsible for scheduling the or her departure from the United States. administrative information to the initial removal hearing and providing The time and numerical limitations set Immigration Court. Failure to provide notice to the government and the alien forth in this paragraph do not apply to any of these items shall not be of the time, place, and date of hearing. motions by the Service in removal construed as affording the alien any In the case of any change or proceedings pursuant to section 240 of substantive or procedural rights. postponement in the time and place of the Act, or to motions by the Service in (1) The alien’s names and any known such proceeding, the Immigration Court exclusion or deportation proceedings, aliases; shall provide written notice to the alien when the basis of the motion is fraud in (2) The alien’s address; specifying the new time and place of the the original proceeding or a crime that (3) The alien’s registration number, proceeding and the consequences under would support termination of asylum in with any lead alien registration number section 240(b)(5) of the Act of failing, accordance with § 208.22(f) of this with which the alien is associated; except under exceptional circumstances chapter. (4) The alien’s alleged nationality and as defined in section 240(e)(1) of the (i) Form and contents of the motion. citizenship; and Act, to attend such proceeding. No such The motion shall be in writing and (5) The language that the alien notice shall be required for an alien not signed by the affected party or the understands. in detention if the alien has failed to attorney or representative of record, if (d) Address and telephone number. provide the address required in section any. The motion and any submission (1) If the alien’s address is not provided 239(a)(1)(F) of the Act. made in conjunction with it must be in on the Order to Show Cause or Notice English or accompanied by a certified § 3.19 [Amended] to Appear, of if the address on the Order English translation. Motions to reopen to Show Cause or Notice to Appear is 18. Section 3.19(a) is amended by or reconsider shall state whether the incorrect, the alien must provide to the revising the reference to ‘‘part 242 of validity of the exclusion, deportation, or Immigration Court where the charging this chapter’’ to read ‘‘8 CFR part 236’’ removal order has been or is the subject document has been filed, within five wherever it appears in the paragraph. of any judicial proceeding and, if so, the days of service of that document, a 19. Section 3.19(d) is amended in the nature and date thereof, the court in written notice of an address and first sentence by adding the term ‘‘or which such proceeding took place or is telephone number at which the alien removal’’ immediately after the word pending, and its result or status. In any can be contacted. The alien may satisfy ‘‘deportation’’. case in which an exclusion, deportation, this requirement by completing and or removal order is in effect, any motion filing Form EOIR–33. 20. Section 3.19 is amended by to reopen or reconsider such order shall (2) Within five days of any change of removing paragraph (h). include a statement by or on behalf of address, the alien must provide written 21. In § 3.20, paragraph (a) is revised the moving party declaring whether the notice of the change of address on Form to read as follows: subject of the order is also the subject 458 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules of any pending criminal proceeding motion to reopen for the purpose of 240(e)(1) of the Act. An order entered in under the Act, and, if so, the current providing the alien an opportunity to absentia pursuant to section 240(b)(5) status of that proceeding. apply for any form of discretionary may be rescinded upon a motion to (ii) Filing. Motions to reopen or relief will not be granted if it appears reopen filed at any time if the alien reconsider a decision of an Immigration that the alien’s right to apply for such demonstrates that he or she did not Judge must be filed with the relief was fully explained to him or her receive notice in accordance with Immigration Court having by the Immigration Judge and an sections 239(a) (1) or (2) of the Act, or administrative control over the Record opportunity to apply therefore was the alien demonstrates that he or she of Proceeding. A motion to reopen or a afforded at the hearing, unless the relief was in Federal or state custody and the motion to reconsider shall include a is sought on the basis of circumstances failure to appear was through no fault of certificate showing service on the that have arisen subsequent to the the alien. However, in accordance with opposing party of the motion and all hearing. Pursuant to section 240A(d)(1) section 240(b)(5)(B) of the Act, no attachments. If the moving party, other of the Act, a motion to reopen written notice of a change in time or than the Service, is represented, a Form proceedings for consideration or further place of proceeding small be required if EOIR–28, Notice of Appearance as consideration of an application for relief the alien has failed to provide the Attorney or Representative Before an under section 240A(a) (cancellation of address required under section Immigration Judge must be filed with removal for certain permanent 239(a)(1)(F) of the Act. The filing of a the motion. The motion must be filed in residents) or 240A(b) (cancellation of motion to reopen under this section duplicate with the Immigration Court, removal and adjustment of status for shall stay the removal of the alien accompanied by a fee receipt. certain nonpermanent residents) may be pending disposition of the motion by (iii) Assignment to an Immigration granted only if the alien demonstrates the Immigration Judge. An alien may Judge. If the Immigration Judge is that he or she was statutorily eligible for file only one motion pursuant to this unavailable or unable to adjudicate the such relief prior to the service of a paragraph. motion to reopen or reconsider, the notice top appear, or prior to the (iii) Order entered in absentia in Chief Immigration Judge or his or her commission of an offense referred to in deportation or exclusion proceedings. delegate shall reassign such motion to section 212(a)(2) of the Act that renders (A) An order entered in absentia in another Immigration Judge. the alien inadmissible or removable deportation proceedings may be (iv) Replies to motions; decision. The under sections 237(a)(2) of the Act or rescinded only a motion to reopen filed: Immigration Judge may set and extend (a)(4), whichever is earliest. The (1) Within 180 days after the date of time limits for replies to motions to Immigration Judge has discretion to the order of deportation if the alien reopen or reconsider. A motion shall be deny a motion to reopen even if the demonstrates that the failure to appear deemed unopposed unless timely moving party has established a prima was because of ‘‘exceptional response is made. The decision to grant facie case for relief. circumstances’’ beyond the control of or deny a motion to reopen or a motion (4) Exceptions to filing deadlines. the alien (e.g., serious illness of the to reconsider is within the discretion of (i) Asylum. The time and numerical alien or serious illness or death of an the Immigration Judge. limitations set forth in paragraph (b)(1) immediate relative of the alien, but not (v) Stays. Except in cases involving in of this section shall not apply if the including less compelling absentia orders, the filing of a motion to basis of the motion is to apply for relief circumstances); or reopen or a motion to reconsider shall under section 208 or 241(b)(3) of the Act (2) At any time if the alien not stay the execution of any decision and is based on changed country demonstrates that he or she did not made in the case. Execution of such conditions arising in the country of receive notice or if the alien decision shall proceed unless a stay of nationality or the country to which demonstrates that he or she was in execution is specifically granted by the removal has been ordered, if such federal or state custody and the failure Immigration Judge, the Board, or an evidence is material and was not to appear was through no fault of the authorized officer of the Service. available and would not have been alien. (2) Motion to reconsider. A motion to discovered or presented at the previous (B) A motion to reopen exclusion reconsider shall state the reasons for the proceeding. The filing of a motion to hearings on the basis that the motion by specifying the errors of fact reopen under this section shall not Immigration Judge improperly entered or law in the Immigration Judge’s prior automatically stay the removal of the an order of exclusion in absentia must decision and shall be supported by alien. However, the alien many request be supported by evidence that the alien pertinent authority. Such motion may a stay and, if granted by the Immigration had reasonable cause for his failure to not seek reconsideration of a decision Judge, the alien shall not be removed appear. denying previous motion to reconsider. pending disposition of the motion by (C) The filing of a motion to reopen (3) Motion to reopen. A motion to the Immigration Judge. If the original under paragraph (b)(4)(iii)(A) of this reopen proceedings shall state the new asylum application was denied based section shall stay the deportation of the facts that will be proven at a hearing to upon a finding that it was frivolous, alien pending decision on the motion be held if the motion is granted and then the alien is ineligible to file either and the adjudication of any properly shall be supported by affidavits and a motion to reopen or reconsider, or for filed administrative appeal. other evidentiary material. Any motion a stay of removal. (D) The time and numerical to reopen for the purpose of acting on (ii) Order entered in absentia in limitations set forth in paragraph (b)(1) an application for relief must be removal proceedings. An order of of this section shall not apply to a accompanied by the appropriate removal entered in absentia pursuant to motion to reopen filed pursuant to the application for relief and all supporting section 240(b)(5) of the Act may be provisions of paragraphs (b)(4)(iii)(A)(1) documents. A motion to reopen will not rescinded only upon a motion to reopen of this section. be granted unless the Immigration Judge filed within 180 days after the date of (iv) Jointly filed motions. The time is satisfied that evidence sought to be the order of removal, if the alien and numerical limitations set forth in offered is material and was not available demonstrates that the failure to appear subsection (b)(1) of this section shall not and could not have been discovered or was because of ‘‘exceptional apply to a motion to reopen agreed upon presented at the former hearing. A circumstances’’ as defined in section by all parties and jointly filed. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 459

23. Section 3.25 is revised to read as (8) A waiver of appeal of the written 26. Section 3.30 is revised to read as follows: order of deportation or removal. follows: (c) Telephonic or video hearings. An § 3.25 Form of the proceeding. Immigration Judge may conduct § 3.30 Additional charges in deportation or removal hearings. (a) Waiver of presence of the parties. hearings through video conference to The Immigration Judge may, for good the same extent as he or she may At any time during deportation or cause, and consistent with section conduct hearings in person. An removal proceedings, additional or 240(b) of the Act, waive the presence of Immigration Judge may also conduct a substituted charges of deportability and/ the alien at a hearing when the alien is hearing through a telephone conference, or factual allegations may be lodged by represented or when the alien is a minor but an evidentiary hearing on the merits the Service in writing. The alien shall be child at least one of whose parents or may only be conducted through a served with a copy of these additional whose legal guardian is present. When telephone conference with the consent charges and/or allegations and the it is impracticable by reason of an of the alien involved after the alien has Immigration Judge shall read them to alien’s mental incompetency for the been advised of the right to proceed in the alien. The Immigration Judge shall alien to be present, the presence of the person or, where available, through a advise the alien, if he or she is not alien may be waived provided that the video conference, except that credible represented by counsel, that the alien alien is represented at the hearing by an fear determinations may be reviewed by may be so represented. The alien may be attorney or legal representative, a near the Immigration Judge through a given a reasonable continuance to relative, legal guardian, or friend. telephone conference without the respond to the additional factual (b) Stipulated request for order, consent of the alien. allegations and charges. Thereafter, the wavier of hearing. An Immigration Judge 24. Section 3.26 is amended by provision of § 240.10(b) of this chapter may enter an order of deportation, revising paragraph (c) and adding a new relating to pleading shall apply to the exclusion or removal stipulated to by paragraph (d) to read as follows: additional factual allegations and the alien (or the alien’s representative) charges. and the Service. The Immigration Judge § 3.26 In absentia hearings. 27. Section 3.35 is revised to read as may enter such an order without a * * * * * follows: (c) In any removal proceeding before hearing and in the absence of the parties § 3.35 Depositions and Subpoenas. based on a review of the charging an Immigration Judge in which the alien (a) Depositions. If an Immigration document, the written stipulation, and fails to appear, the Immigration Judge Judge is satisfied that a witness is not supporting documents, if any. If the shall order the alien removed in reasonably available at the place of alien is unrepresented, the Immigration absentia if: hearing and that said witness’ testimony Judge must determine that the alien’s (1) The Service establishes by clear, or other evidence is essential, the waiver is voluntary, knowing, and unequivocal, and convincing evidence Immigration Judge may order the taking intelligent. The stipulated request and that the alien is removable; and of deposition either at his or her own required waivers shall be signed on (2) The Service establishes by clear, instance or upon application of a party. behalf of the government and by the unequivocal, and convincing evidence Such order shall designate the official alien and his or her attorney or that written notice of the time and place by whom the deposition shall be taken, representative, if any. The attorney or of proceedings and written notice of the may prescribe and limit the content, representative shall file a Notice of consequences of failure to appear were scope, or manner of taking the Appearance in accordance with provided to the alien. deposition, and may direct the § 3.16(b). A stipulated order shall (d) Written notice to the alien shall be considered sufficient for purposes of production of documentary evidence. constitute a conclusive determination of (b) Subpoenas issued subsequent to the alien’s deportability or removability this section if it was provided at the most recent address provided by the commencement of proceedings. (1) from the United States. The stipulation General. In any proceeding before an shall include: alien. If the respondent fails to provide his or her address as required under Immigration Judge, other than under 8 (1) An admission that all factual CFR part 335, the Immigration Judge allegations contained in the charging § 3.15(d), no written notice shall be required for an Immigration Judge to shall have exclusive jurisdiction to issue document are true and correct as subpoenas requiring the attendance of written; proceed with an in absentia hearing. This paragraph shall not apply in the witnesses or for the production of (2) A concession of deportability or event that the Immigration Judge waives books, papers and other documentary inadmissibility as charged; the appearance of an alien under § 3.25. evidence, or both. An Immigration Judge (3) A statement that the alien makes 25. Section 3.27 is amended by may issue a subpoena upon his or her no application for relief under the Act; revising paragraph (c) to read as follows: own volition or upon application of the (4) A designation of a country for Service or the alien. deportation or removal under section § 3.27 Public access to hearings. (2) Application for subpoena. A party 241(b)(2)(A)(i) of the Act; * * * * * applying for a subpoena shall be (5) A concession to the introduction (c) In any proceeding before an required, as a condition precedent to its of the written stipulation of the alien as Immigration Judge concerning an issuance, to state in writing or at the an exhibit to the Record of Proceeding; abused alien spouse, the hearing and the proceeding, what he or she expects to (6) A statement that the alien Record of Proceeding shall be closed to prove by such witnesses or understands the consequences of the the public unless the abused spouse documentary evidence, and to show stipulated request and that the alien agrees that the hearing and the Record affirmatively that he or she has made enters the request voluntarily, of Proceeding shall be open to the diligent effort, without success, to knowingly, and intelligently; public. In any proceeding before an produce the same. (7) A statement that the alien will Immigration Judge concerning an (3) Issuance of subpoena. Upon being accept a written order for his or her abused alien child, the hearing and the satisfied that a witness will not appear deportation, exclusion or removal as a Record of Proceeding shall be closed to and testify or produce documentary final disposition of the proceedings; and the public. evidence and that the witness’ evidence 460 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules is essential, the Immigration Judge shall affirmation administered by the 30. In § 1301, paragraph (g)(3)(ii) is issue a subpoena. The subpoena shall Immigration Judge. If an interpreter is revised to read as follows: state the title of the proceeding and necessary, one will be provided by the shall command the person to whom it Immigration Court. The Immigration § 103.1 Delegations of authority. is directed to attend and to give Judge shall determine whether the * * * * * testimony at a time and place specified. review shall be in person, or through (g) * * * The subpoena may also command the telephonic or video connection (where (3) * * * person to whom it is directed to available). The alien may consult with (ii) Asylum Officers. Asylum officers produce the books, papers, or a person or persons of the alien’s constitute a professional corps of documents specified in the subpoena. choosing prior to the review. officers who serve under the (4) Appearance of witness. If the (d) Standard of review. The supervision and direction of the witness is at a distance of more than 100 Immigration Judge shall make a de novo Director of International Affairs and miles from the place of the proceeding, determination as to whether there is a shall be specially trained as required in the subpoena shall provide for the significant possibility, taking into § 208.1(b) of this chapter. Asylum witness’ appearance at the Immigration account the credibility of the statements officers are delegated the authority to Court nearest to the witness to respond made by the alien in support of the hear and adjudicate credible fear of to oral or written interrogatories, unless alien’s claim and such other facts as are persecution determinations under there is no objection by any party to the known to the Immigration Judge, that section 235(b)(1)(B) of the Act and witness’ appearance at the proceeding. the alien could establish eligibility for applications for asylum and for (5) Service. A subpoena issued under asylum under section 208 of the Act. withholding of removal, as provided this section may be served by any (e) Timing. The Immigration Judge under 8 CFR part 208. person over 18 years of age not a party shall conclude the review to the * * * * * to the case. (6) Invoking aid of court. If a witness maximum extent practicable within 24 § 103.5 [Amended] neglects or refuses to appear and testify hours, but in no case later than 7 days after the determination of the asylum 31. Section 103.5 is amended by: as directed by the subpoena served a. Removing paragraphs (a)(1)(iii)(B); upon him or her in accordance with the officer. (f) Decision. If an Immigration Judge b. Redesignating paragraphs (a)(1)(iii) provisions of this section, the (C) through (F) as paragraphs (a)(1)(iii) Immigration Judge issuing the subpoena determines that an alien has a credible fear of persecution, the Immigration (B) through (E), respectively; and shall request the United States Attorney c. Removing paragraph (a)(5)(iii). for the district in which the subpoena Judge shall vacate the order entered 32. In § 103.5a, paragraph (c)(1) is was issued to report such neglect or pursuant to section 235(b)(1)(B)(iii)(I) of revised to read as follows: refusal to the United States District the Act. Subsequent to the order being Court and to request such court to issue vacated, the Service shall issue and file § 103.5a Service of notification, decisions, an order requiring the witness to appear Form I–862, Notice to Appear, with the and other papers by the Service. and testify and to produce the books, Immigration Court to commence * * * * * removal proceedings. The alien shall papers or documents designated in the (c) * * * subpoena. have the opportunity to apply for asylum in the course of removal (1) Generally. In any proceeding 28. In Subpart C, a new § 3.42 is which is initiated by the Service, with added to read as follows: proceedings pursuant to section 240 of the Act. If an Immigration Judge proposed adverse effect, service of the § 3.42 Review of credible fear determines that an alien does not have initiating notice and of notice of any determination. a credible fear of persecution, the decision by a Service officer shall be (a) Referral. Jurisdiction for an Immigration Judge shall affirm the accomplished by personal service, Immigration Judge to review an adverse asylum officer’s determination and except as provided in section 239 of the credible fear finding by an asylum remand the case to the Service for Act. officer pursuant to section 235(b)(1)(B) execution of the removal order entered * * * * * of the Act shall commence with the pursuant to section 235(b)(1)(B)(iii)(I) of 33. In § 103.6, paragraph (a) is revised filing by the Service to Form I–863, the Act. No appeal shall lie from a to read as follows: Notice of Referral to Immigration Judge. review of an adverse credible fear § 103.6 Surety bonds. The Service shall also file with the determination made by an Immigration notice of referral a copy of the written Judge. (a) Posting of surety bonds.—(1) Extension agreements; consent of surety; record of determination as defined in (g) Custody. An Immigration Judge collateral security. All surety bonds section 235(b)(1)(B)(iii)(II) of the Act, shall have no authority to review an posted in immigration cases shall be including a copy of the alien’s written alien’s custody status in the course of a executed on Form I–352, Immigration request for review, if any. review of an adverse credible fear Bond, a copy of which, and any rider (b) Record of proceeding. The determination made by the Service. Immigration Court shall create a Record attached thereto, shall be furnished the of Proceeding for a review of an adverse PART 103ÐPOWERS AND DUTIES OF obligor. A district director is authorized credible fear determination. This record SERVICE OFFICERS; AVAILABILITY to approve a bond, a formal agreement shall be merged with any later OF SERVICE RECORDS to extension of liability of surety, a proceeding pursuant to section 240 of request for delivery of collateral security the Act involving the same alien. 29. The authority citation for part 103 to a duly appointed and undischarged (c) Procedures and evidence. The continues to read as follows: administrator or executor of the estate of Immigration Judge may receive into Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. a deceased depositor, and a power of evidence any oral or written statement 1101, 1103, 1201, 1252 note, 1252b, 1304, attorney executed on Form I–312, which is material and relevant to any 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR. Designation of Attorney in Fact. All issue in the review. The testimony of 14874, 15557; 3 CFR, 1982 Comp. p. 166; 8 other matters relating to bonds, the alien shall be under oath or CFR part 2. including a power of attorney not Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 461 executed on Form I–312 and a request § 207.1 Eligibility. 208.9 Procedure for interview before an for delivery of collateral security to (a) Filing jurisdiction. Any alien who asylum officer. other than the depositor or his or her believes he or she is a refugee as defined 208.10 Failure to appear at an interview approved attorney in fact, shall be in section 101(a)(42) of the Act, and is before an asylum officer. 208.11 Comments from the Department of forwarded to the regional director for included in a refugee group identified in State. approval. section 207(a) of the Act, may apply for 208.12 Reliance on information compiled (2) Bond riders.—(i) General. Bond admission to the United States by filing by other sources. riders shall be prepared on Form I–351, an application in accordance with 208.13 Establishing asylum eligibility. Bond Riders, and attached to Form I– § 207.2 with the Service office having 208.14 Approval, denial, or referral of 352. If a condition to be included in a jurisdiction over the area where the application. bond is not on Form I–351, a rider applicant is located. In those areas too 208.15 Definition of ‘‘firm resettlement.’’ containing the condition shall be distant from a Service office, the 208.16 Withholding of removal. application may be filed at a designated 208.17 Decisions. executed. 208.18 Determining if an asylum * * * * * United States consular office. application is frivolous. * * * * * 208.19 [Reserved] § 103.7 [Amended] 39. Section 207.3 is revised to read as 208.20 Effect on exclusion, deportation, and 34. Section 103.7(b)(1) is amended by follows: removal proceedings. removing the entry to ‘‘Form I–444’’. 208.21 Restoration of status. § 207.3 Waivers of inadmissibility. 208.22 Termination of asylum or PART 204ÐIMMIGRANT PETITIONS (a) Authority. Section 207(c)(3) of the withholding or removal or deportation. Act sets forth grounds of inadmissibility 208.23–29 [Reserved] 35. The authority citation for part 204 under section 212(a) of the Act which Subpart BÐCredible Fear of Persecution continues to read as follows: are not applicable and those which may 208.30 Credible fear determinations Authority: 8 U.S.C. 1101, 1103, 1151, 1153, be waived in the case of an otherwise involving stowaways and applicants for 1154, 1182, 1186a, 1255; 8 CFR part 2. qualified refugee and the conditions admission found inadmissible pursuant under which such waivers may be 36. Section 204.2 is amended by: to section 212(a)(6)(C) or 212(a)(7) of the approved. Officers in charge of overseas Act. a. Revising paragraph (a)(1)(iii) offices are delegated authority to initiate introductory text; Authority: 8 U.S.C. 1103, 1158, 1226, 1252, the necessary investigations to establish 1282; 8 CFR part 2. b. Removing paragraphs (a)(1)(iii) (A) the facts in each waiver application through (C); and pending before them and to approve or Subpart AÐAsylum and Withholding c. Redesignating paragraphs (a)(1)(iii) deny such waivers. of Removal (D) through (I) as paragraphs (a)(1)(iii) (b) Filing requirements. The applicant (A) through (F) respectively, to read as for a waiver must submit Form I–602, § 208.1 General. follows: Application by Refugee for Waiver of (a) Applicability. Unless otherwise Grounds of Inadmissibility, with the provided herein, this subpart shall § 204.2 Petitions for relatives, widows, and apply to all applications for asylum widowers, and abused spouses and Service office processing his or her case. children. The burden is on the applicant to show under section 208 of the Act or for withholding of deportation or * * * * * that the waiver should be granted based upon humanitarian grounds, family withholding of removal under section (a) * * * unity, or the public interest. The 241(b)(3) of the Act, whether before an (1) * * * applicant shall be notified in writing of asylum officer or an immigration judge, (iii) Marriage during proceedings— the decision, including the reasons for regardless of the date of filing. For general prohibition against approval of denial, if the application is denied. purposes of this chapter, withholding of visa petition. A visa petition filed on There is no appeal from such decision. removal shall also mean withholding of behalf of an alien by a United States deportation under section 243(h) of the citizen or a lawful permanent resident § 207.8 [Amended] Act, as it appeared prior to April 1, spouse shall not be approved if the 40. Section 207.8 is amended in the 1997, except as provided in § 208.16(c) marriage creating the relationship last sentence by revising the reference to of this chapter. Such applications are occurred on or after November 10, 1986, ‘‘sections 235, 236, and 237’’ to read hereinafter referred to generically as and while the alien was in exclusion, ‘‘sections 235, 240, and 241’’. asylum applications. The provisions of deportation, or removal proceedings, or 41. Part 208 is revised to read as this part shall not affect the finality or judicial proceedings relating thereto. follows: validity of any decision made by a Determination of commencement and district director, an immigration judge, PART 208ÐPROCEDURES FOR termination of proceedings and or the Board of Immigration Appeals in ASYLUM AND WITHHOLDING OF exemptions shall be in accordance with any such case prior to April 1, 1997. No REMOVAL § 245.1(c)(8) of this chapter. asylum application that was filed with * * * * * Subpart AÐAsylum and Withholding of a district director, asylum officer or Removal immigration judge prior to April 1, PART 207ÐADMISSION OF Sec. 1997, may be reopened or otherwise REFUGEES 208.1 General. reconsidered under the provisions of 37. The authority citation for part 207 208.2 Jurisdiction. this part except by motion granted in 208.3 Form of application. is revised to read as follows: the exercise of discretion by the Board 208.4 Filing the application. of Immigration Appeals, an immigration Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 208.5 Special duties toward aliens in judge, or an asylum officer for proper 1159, 1182; 8 CFR part 2. custody of the Service. 208.6 Disclosure to third parties. cause shown. Motions to reopen or 38. Section 207.1 is amended by 208.7 Employment authorization. reconsider must meet the requirements removing paragraph (e), and by revising 208.8 Limitations on travel outside the of sections 240(c)(5) and (c)(6) of the paragraph (a) to read as follows: United States. Act, and 8 CFR parts 3 and 103, where 462 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules applicable. The provisions of this part (ii) An alien stowaway who has been additional copy of the principal relating to a person convicted of an found to have a credible fear of applicant’s Form I–589 must be aggravated felony, as defined in section persecution pursuant to the procedure submitted for each dependent included 101(a)(43) of the Act, shall apply to set forth in Subpart B of this part; in the principal’s application. An asylum applications that are filed on or (iii) An alien who is an applicant for application shall be accompanied by after November 29, 1990. admission pursuant to the Visa Waiver one completed fingerprint card, Form (b) Training of asylum officers. The Pilot Program under section 217 of the FD–258, for every individual included Director of International Affairs shall Act; in the application who is 14 years of age ensure that asylum officers receive (iv) An alien who was admitted to the or older. The application also shall be special training in international human United States pursuant to the Visa accompanied by two photographs of the rights law, nonadversarial interview Waiver Pilot Program under section 217 applicant and of each dependent techniques, and other relevant national of the Act and has remained longer than included in the application. and international refugee laws and authorized or has otherwise violated his (b) An asylum application shall be principles. The Director of International or her immigration status; deemed to constitute at the same time Affairs shall also, in cooperation with (v) An alien who has been ordered an application for withholding of the Department of State and other removed under section 235(c) of the removal, unless adjudicated in appropriate sources, compile and Act; or deportation or exclusion proceedings disseminate to asylum officers (vi) An alien who is an applicant for commenced prior to April 1, 1997. In information concerning the persecution admission, or has been admitted, as an such instances, the asylum application of persons in other countries on account alien classified under section shall be deemed to constitute an of race, religion, nationality, 101(a)(15)(S) of the Act. application for withholding of (2) Rules of procedure. Proceeding membership in a particular social group, deportation under section 243(h) of the falling under the jurisdiction of the or political opinion, as well as other Act, as that section existed prior to its immigration judge pursuant to information relevant to asylum amendment by Pub. L. 104–208. paragraph (b)(1) of this section shall be determinations, and shall maintain a (c) Form I–589 shall be filed under the conducted in accordance with the same documentation center with information following conditions and shall have the rules of procedure as proceedings following consequences: on human rights conditions. conducted under 8 CFR part 240, except (1) Information provided on the § 208.2 Jurisdiction. the scope of review shall be limited to application may be used as a basis for (a) Office of International Affairs. a determination of whether the alien is the institution of or as evidence in Except as provided in paragraph (b) of eligible for asylum or withholding of removal proceedings, and in deportation this section, the Office of International removal and whether asylum shall be and exclusion proceedings where the application has been filed on or after Affairs shall have initial jurisdiction granted in the exercise of discretion. January 4, 1995, as well as to satisfy the over an asylum application filed by, or During such proceeding all parties are Service’s burden of proof in such a credible fear determination pertaining prohibited from raising or considering any other issues, including but not proceedings; to, an alien physically present in the (2) The applicant and anyone other United States or seeking admission at a limited to issues of admissibility, removability, eligibility for waivers, and than a spouse, parent, son, or daughter port-of-entry. An application that is of the applicant who assists the complete within the meaning of eligibility for any form of relief other than asylum or withholding of removal. applicant in preparing the application § 208.3(c)(3) shall be either adjudicated must sign the application under penalty or referred by asylum officers under this (3) other aliens. Immigration judges shall have exclusive jurisdiction over of perjury. The applicant’s signature is part in accordance with § 208.14. An evidence that the applicant is a aware of application that is incomplete within asylum applications filed by an alien who has been served Form I–221, Order the contents of the application. A the meaning of § 208.3(c)(3) shall be person other than a relative specified in returned to the applicant. Except as to Show Cause; Form I–122, Notice to Applicant for Admission Detained for a this paragraph who assists the applicant provided in § 208.16(a), an asylum in preparing the application also must officer shall not decide whether an alien Hearing before an Immigration Judge; or Form I–862, Notice to Appear, after a provide his or her full mailing address; is entitled to withholding of removal (3) An asylum application that does under section 241(b)(3) of the Act. copy of the charging document has been filed with the Immigration Court. not include a response to each of the (b) Immigration Court. (1) Certain Immigration judges shall also have questions contained in the Form I–589, aliens not entitled to proceedings under jurisdiction over any asylum is unsigned, or is unaccompanied by the section 240 of the Act. After Form I–863, applications filed prior to April 1, 1997, required materials specified in Notice of Referral to Immigration Judge, by alien crew members who have paragraph (a) of this section is has been filed with the Immigration remained in the United States longer incomplete. The filling of an incomplete Court, an immigration judge shall have than authorized, by applicants for application shall not commence the exclusive jurisdiction over any asylum admission under the Visa Waiver Pilot 150-day period after which the application filed on or after April 1, Program, and by aliens who have been applicant may file an application for 1997, by: admitted to the United States under the employment authorization in (i) An alien crewman who: Visa Waiver Pilot Program. accordance with § 208.7. An application (A) Is an applicant for a landing that is incomplete shall be retuned by permit; § 208.3 Form of application. mail to the applicant within 30 days of (B) Has been refused permission to (a) An asylum applicant must file, in the receipt of the application by the land under section 252 of the Act; or triplicate, Form I–589 together with any Service. If the Service has not mailed (C) Has been granted permission to additional supporting material. The the incomplete application back to the land under section 252 of the Act, applicant’s spouse and children shall be applicant within 30 days, it shall be regardless of whether the alien has listed on the application and may be deemed complete; remained in the United States longer included in the request for asylum if (4) Knowing placement of false than authorized; they are in the United States. One information on the application may Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 463 subject the person placing that the applicant’s residence or, in the case but any delay caused by such request information on the application to of an alien without a United States shall extend the period within which criminal penalties under title 18 of the residence, the applicant’s current the application may not apply for United States Code and to civil lodging or the land border port-of-entry employment authorization in penalties under section 274C of the Act; through which the alien seeks accordance with § 208.7(a). and admission to the United States. (5) Knowing filing of a frivolous (2) With the asylum office. Asylum § 208.5 Special duties toward aliens in custody of the Service. application on or after April 1, 1997, so applications shall be filed directly with long as the applicant has received the the asylum office having jurisdiction (a) General. When an alien in the notice required by section 208(d)(4) of over the matter in the case of an alien custody of the Service requests asylum the Act, shall render the applicant who has received the express consent of or withholding of removal or expresses permanently ineligible for any benefits the Director of Asylum to do so. a fear of persecution or harm upon under the Act pursuant to § 208.18. (3) With the immigration judge. return to his or her country of origin or Aslyum applications shall be filed to agents thereof, the Service shall make § 208.4 Filing the application. directly with the Immigration Court available the appropriate application Except as prohibited in paragraph (a) having jurisdiction over the case in the forms and shall provide the applicant of this section, asylum applications following circumstances: with the information required by section shall be filed in accordance with (i) During exclusion, deportation, or 208(d)(4) of the Act, except in the case paragraph (b) of this section. removal proceedings, with the of an alien who is in custody pending (a) Prohibitions on filing. Section Immigration Court having jurisdiction a credible fear of persecution 208(a)(2) of the Act prohibits certain over the port, district office, or sector determination under section aliens from filing for asylum on or after after service and filing of the 235(b)(1)(B) of the Act. Where possible, April 1, 1997, unless the alien can appropriate charging document. expedited consideration shall be given demonstrate that the exceptions in (ii) After completion of exclusion, to applications of detained aliens. section 208(a)(2)(D) of the Act apply. deportation, or removal proceedings, Except as provided in paragraph (c) of For the purpose of making and in conjunction with a motion to this section, such alien shall not be determinations under section 208(a)(2) reopen pursuant to 8 CFR part 3 where excluded, deported, or removed before a of the Act, the following rules shall applicable, with the Immigration Court decision is rendered on his or her apply: having jurisdiction over the prior asylum application. (1) For the purpose of section proceeding. Any such motion must (b) Certain aliens aboard vessels. (1) 208(a)(2)(C) of the Act, an asylum reasonably explain the failure to request If an alien crewman or alien stowaway application has not been denied unless asylum prior to the completion of the on board a vessel or other conveyance denied by an immigration judge or the proceedings alleges, claims, or otherwise makes Board of Immigration Appeals; (iii) In asylum proceedings pursuant known to an immigration inspector or (2) The term ‘‘changed to § 208.2(b)(1) and after the Notice of other official making an examination on circumstances’’ in section 208(a)(2)(D) Referral to Immigration Judge has been the conveyance that he or she is unable of the Act shall refer to circumstances served on the alien and filed with the or unwilling to return to his or her materially affecting the applicant’s Immigration Court having jurisdiction country of nationality or last habitual eligibility for asylum that have arisen: over the case. residence (if not a national of any (i) For the purpose of section (4) With the Board of Immigration country) because of persecution or a fear 208(a)(2)(C) of the Act, since the denial Appeals. In conjunction with a motion of persecution in that country on of the last asylum application by the to remand or reopen pursuant to §§ 3.2 account of race, religion, nationality, alien. Changed circumstances arising and 3.8 of this chapter where membership in a particular social group, after the denial of the application but applicable, an initial asylum application or political opinion, the alien shall be before the alien’s departure or removal shall be filed with the Board of promptly removed from the conveyance. from the United States shall only be Immigration Appeals if jurisdiction over If the alien makes such fear known to an considered as part of a motion to reopen the proceedings is vested in the Board official while off such conveyance, the under section 240(c)(6) of the Act and of Immigration Appeals under 8 CFR alien shall not be returned to the §§ 3.2, 3.23 and 103.5 of this chapter; or part 3. Any such motion must conveyance but shall be retained in or (ii) For the purpose of section reasonably explain the failure to request transferred to the custody of the Service. 208(a)(2)(B) of the Act, since the 1-year asylum prior to the completion of the (i) An alien stowaway will be referred period has expired; and proceedings. to an asylum officer for a credible fear (3) The term ‘‘extraordinary (5) With the district director. In the determination under § 208.30. circumstances’’ in section 208(a)(2)(D) case of any alien described in (ii) An alien crewman shall be of the Act shall refer to events or factors § 208.2(b)(1) and prior to the service on provided the appropriate applications beyond the alien’s control that caused the alien of Form I–863, any asylum forms and information required by the failure to meet the 1-year deadline. application shall be submitted to the section 208(d)(4) of the Act and may Such circumstances shall excuse the district director having jurisdiction then have 10 days within which to failure to file within the 1-year period pursuant to 8 CFR part 103. The district submit an asylum application to the so long as the alien filed the application director shall forward such asylum district director having jurisdiction over as soon after the deadline as practicable application to the appropriate the port of entry. The district director, given those circumstances. Immigration Court with the Form I–863 pursuant to § 208.4(b), shall serve Form (b) Filing location. (1) With the service being filed with that Immigration Court. I–863 on the alien and immediately center by mail. Except as provided in (c) Amending an application after forward any such application to the paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) filing. Upon request of the alien and as appropriate Immigration Court with a of this section, asylum applications a matter of discretion, the asylum officer copy of the Form I–863 being filed with shall be filed directly by mail with the or immigration judge having jurisdiction that court. service center servicing the asylum may permit an asylum applicant to (2) Pending adjudication of the office with jurisdiction over the place of amend or supplement the application, application, and, in the case of a 464 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules stowaway the credible fear § 208.7 Employment authorization. applications for asylum filed on or after determination and any review thereof, (a) Application and approval. (1) January 4, 1995. the alien may be detained by the Service Subject to the restrictions contained in (b) Renewal and termination. or otherwise paroled in accordance with sections 236(a) and 208(d) of the Act, an Employment authorization shall be § 212.5 of this chapter. However, applicant for asylum who is not an renewable, in increments to be pending the credible fear determination, aggravated felon shall be eligible determined by the Commissioner, for parole of an alien stowaway may be pursuant to §§ 274a.12(c)(8) and the continuous period of time necessary permitted only when the Attorney 274a.13(a) of this chapter to submit a for the asylum officer or immigration General determines, in the exercise of Form I–765, Application for judge to decide the asylum application discretion, that parole is required to Employment Authorization. The and, if necessary, for completion of any meet a medical emergency or is application shall be submitted no earlier administrative or judicial review. necessary for a legitimate law than 150 days after the date on which (1) If the asylum application is denied enforcement objective. a complete asylum application by the asylum officer, the employment (c) Exception to prohibition on submitted in accordance with §§ 208.3 authorization shall terminate at the removal. A motion to reopen or an order and 208.4 has been received. If an expiration of the employment to remand accompanied by an asylum asylum application has been returned as authorization document or 60 days after application pursuant to § 208.4(b)(3)(iii) incomplete in accordance with the denial of asylum, whichever is shall not stay execution of a final § 208.3(c)(3), the 150-day period will longer. exclusion, deportation, or removal order commence upon receipt by the Service (2) If the application is denied by the unless such stay is specifically granted of a complete asylum application. An immigration judge, the Board of by the Board of Immigration Appeals or applicant whose asylum application has Immigration Appeals, or a Federal court, the immigration judge having been denied by an asylum officer or by the employment authorization jurisdiction over the motion. an immigration judge within the 150- terminates upon the expiration of the day period shall not be eligible to apply employment authorization document, § 208.6 Disclosure to third parties. for employment authorization. If an unless the applicant has filed an (a) Information contained in or asylum application is denied prior to a appropriate request for administrative or pertaining to any asylum application decision on the application for judicial review. shall not be disclosed without the employment authorization, the (c) Supporting evidence for renewal of written consent of the applicant, except application for employment employment authorization. In order for as permitted by this section or at the authorization shall be denied. If the employment authorization to be discretion of the Attorney General. asylum application is not so denied, the renewed under this section, the alien (b) The confidentiality of other Service shall have 30 days from the date must provide the Service (in accordance records kept by the Service that indicate of filing of the Form I–765 to grant or with the instructions on or attached to deny that application, except that no that a specific alien has applied for the employment authorization employment authorization shall be asylum shall also be protected from application) with a Form I–765, the issued to an asylum applicant prior to disclosure. The Service will coordinate required fee (unless waived in the expiration of the 180-day period with the Department of State to ensure accordance with § 103.7(c) of this following the filing of the asylum that the confidentially of these records chapter), and (if applicable) proof that application filed on or after April 1, is maintained if they are transmitted to he or she has continued to pursue his 1997. Department of State offices in other (2) Employment authorization or her asylum application before an countries. pursuant to § 274a.12(c)(8) of this immigration judge or sought (c) This section shall not apply to any chapter may not be granted to an alien administrative or judicial review. For disclosure to: who fails to appear for a scheduled purposes of employment authorization, (1) Any United States Government interview before an asylum officer or a pursuit of an asylum application is official or contractor having a need to hearing before an immigration judge, established by presenting to the Service examine information in connection unless the applicant demonstrates that one of the following, depending on the with: the failure to appear was the result of stage of the alien’s immigration (i) The adjudication of asylum exceptional circumstances. proceedings: applications; (3) The time periods within which the (1) If the alien’s case is pending in proceedings before the immigration (ii) The defense of any legal action alien may not apply for employment judge, and the alien wishes to continue arising from the adjudication of or authorization and within which the to pursue his or her asylum application, failure to adjudicate the asylum Service must respond to any such a copy of any asylum denial, referral application; application and within which the notice, or charging document placing (iii) The defense of any legal action of asylum application must be adjudicated pursuant to section 208(d)(5)(A)(iii) of the alien in such proceedings; which the asylum application is a part; (2) If the immigration judge has or the Act shall begin when the alien has filed a complete asylum application in denied asylum, a copy of the document (iv) Any United States Government accordance with §§ 208.3 and 208.4. issued by the Board of Immigration investigation concerning any criminal or Any delay requested or caused by the Appeals to show that a timely appeal civil matter; or applicant shall not be counted as part of has been filed from a denial of the (2) Any Federal, state, or local court these time periods. Such time periods asylum application by the immigration in the United States considering any also shall be extended by the equivalent judge; or legal action: of the time between issuance of a (3) If the Board of Immigration (i) Arising from the adjudication of or request for evidence under § 103.2(b)(8) Appeals has dismissed the alien’s failure to adjudicate the asylum of this chapter and the receipt of the appeal of a denial of asylum, or application; or applicant’s response to such request. sustained an appeal by the Service of a (ii) Arising from the proceedings of (4) The provisions of paragraphs (a) grant of asylum, a copy of the petition which the asylum application is a part. (1) through (3) of this section apply to for judicial review or for habeas corpus Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 465 pursuant to section 242 of the Act, date writing. Upon completion of the application, waiver of the right to an stamped by the appropriate court. interview, the applicant shall be interview, or denial of any application (d) In order for employment informed that he or she must appear in for an employment authorization authorization to be renewed before its person to receive and to acknowledge document. Failure to appear shall be expiration, the application for renewal receipt of the decision of the asylum excused if the notice of the interview must be received by the Service 90 days officer and any other accompanying was not mailed to the applicant’s prior to expiration of the employment material at a time and place designated current address and such address had authorization. by the asylum officer, except as been provided to the Office of otherwise provided by the asylum International Affairs by the applicant § 208.8 Limitations on travel outside the officer. An applicant’s failure to appear prior to the date of mailing in United States. to receive and acknowledge receipt of accordance with section 265 of the Act (a) An applicant who leaves the the decision shall be treated as delay and regulations promulgated United States without first obtaining caused by the applicant for purposes of thereunder, unless the asylum officer advance parole under § 212.5(e) of this § 208.7(a)(3) and shall extend the period determines that the applicant received chapter shall be presumed to have within which the applicant may not reasonable notice of the interview. abandoned his or her application under apply for employment authorization by Failure to appear will be excused if the this section. the number of days until the applicant applicant demonstrates that such failure (b) An applicant who leaves the does appear to receive and acknowledge was the result of exceptional United States pursuant to advance receipt of the decision or until the circumstances. parole under § 212.5(e) of this chapter applicant appears before an immigration and returns to the country of claimed judge in response to the issuance of a § 208.11 Comments from the Department persecution shall be presumed to have charging document under § 208.14(b). of State. abandoned his or her application, (e) The asylum officer shall consider (a) The Service shall forward to the unless the applicant is able to establish evidence submitted by the applicant Department of State a copy of each compelling reasons for such return. together with his or her asylum completed application it receives. At its option, the Department of State may § 208.9 Procedure for interview before an application, as well as any evidence asylum officer. submitted by the applicant before or at provide detailed country conditions the interview. As a matter of discretion, information relevant to eligibility for (a) The Service shall adjudicate the the asylum officer may grant the asylum or withholding of removal. claim of each asylum applicant whose applicant a brief extension of time (b) At its option, the Department of application is complete within the following an interview during which the State may also provide: meaning of § 208.3(c)(3) and is within applicant may submit additional (1) An assessment of the accuracy of the jurisdiction of the Service. evidence. Any such extension shall the applicant’s assertions about (b) The asylum officer shall conduct extend by an equivalent time the conditions in his or her country of the interview in a nonadversarial periods specified by § 208.7 for the nationality or habitual residence and his manner and, except at the request of the filing and adjudication of any or her particular situation; applicant, separate and apart from the employment authorization application. (2) Information about whether persons general public. The purpose of the (f) The asylum application, all who are similarly situated to the interview shall be to elicit all relevant supporting information provided by the applicant are persecuted in his or her and useful information bearing on the applicant, any comments submitted by country of nationality or habitual applicant’s eligibility for asylum. At the the Department of State or by the residence and the frequency of such time of the interview, the applicant Service, and any other information persecution; or must provide complete information specific to the applicant’s case and (3) Such other information as it deems regarding his or her identity, including considered by the asylum officer shall relevant. name, date and place of birth, and comprise the record. (c) Asylum officers and immigration nationality, and may be required to (g) An applicant unable to proceed judges may request specific comments register this identity electronically or with the interview in English must from the Department of State regarding through any other means designated by provide, at no expense to the Service, a individual cases or types of claims the Attorney General. The applicant competent interpreter fluent in both under consideration, or such other may have counsel or a representative English and the applicant’s native information as they deem appropriate. present, may present witnesses, and language. The interpreter must be at (d) Any such comments received may submit affidavits of witnesses and least 18 years of age. Neither the pursuant to paragraphs (b) and (c) of other evidence. applicant’s attorney or representative of this section shall be made part of the (c) The asylum officer shall have record, a witness testifying on the record. Unless the comments are authority to administer oaths, verify the applicant’s behalf, nor a representative classified under the applicable identity of the applicant (including or employee of the applicant’s country Executive Order, the applicant shall be through the use of electronic means), of nationality, or if stateless, country of provided an opportunity to review and verify the identity of any interpreter, last habitual residence, may serve as the respond to such comments prior to the present and receive evidence, and applicant’s interpreter. Failure without issuance of any decision to deny the question the applicant and any good cause to comply with this application. witnesses. paragraph may be considered a failure (d) Upon completion of the interview, § 208.12 Reliance on information compiled without good cause to appear for the by other sources. the applicant or the applicant’s interview for purposes of § 208.10. representative shall have an opportunity (a) In deciding an asylum application, to make a statement or comment on the § 208.10 Failure to appear at an interview or whether the alien has a credible fear evidence presented. The asylum officer before an asylum officer. of persecution pursuant to section may, in his or her discretion, limit the Failure to appear for a scheduled 235(b)(1)(B) of the Act, the asylum length of such statement or comment interview without prior authorization officer may rely on material provided by and may require their submission in may result in dismissal of the the Department of State, the Office of 466 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

International Affairs, other Service persecution. If the applicant (ii) Has been firmly resettled within offices, or other credible sources, such demonstrates such compelling reasons, the meaning of § 208.15; as international organizations, private he or she may be granted asylum unless (iii) Can reasonably be regarded as a voluntary agencies, news organizations, such a grant is barred by paragraph (c) danger to the security of the United or academic institutions. of this section. States; (b) Nothing in this part shall be (2) Well-founded fear of persecution. (iv) Has been convicted of an construed to entitle the applicant to An applicant shall be found to have a aggravated felony, as defined in section conduct discovery directed toward the well-founded fear of persecution if he or 101(a)(43) of the Act; or records, officers, agents, or employees of she can establish first, that he or she has (v) Ordered, incited, assisted, or the Service, the Department of Justice, a fear of persecution in his or her otherwise participated in the or the Department of State. country of nationality or last habitual persecution of any person on account of residence on account of race, religion, race, religion, nationality, membership § 208.13 Establishing asylum eligibility. nationality, membership in a particular in a particular social group, or political (a) Burden of proof. The burden of social group, or political opinion; opinion. If the evidence indicates that proof is on the applicant for asylum to second, that there is a reasonable one of the above grounds apply to the establish that he or she is a refugee as possibility of actually suffering such applicant, he or she shall have the defined in section 101(a)(42) of the Act. persecution if he or she were to return burden of proving by a preponderance The testimony of the applicant, if to that country; and third, that he or she of the evidence that he or she did not credible, may be sufficient to sustain the is unable or unwilling to return to or so act. burden of proof without corroboration. avail himself or herself of the protection (d) Discretionary denial. An asylum The fact that the applicant previously of that country because of such fear. In application may be denied in the established a credible fear of evaluating whether the applicant has discretion of the Attorney General if the persecution for purposes of section sustained his or her burden of proving alien can be removed to a third country 235(b)(1)(B) of the Act does not relieve that he or she has a well-founded fear which has offered resettlement and in the alien of the additional burden of of persecution, the asylum officer or which the alien would not face harm or establishing eligibility for asylum. immigration judge shall not require the persecution. (b) Persecution. The applicant may applicant to provide evidence that he or qualify as a refugee either because he or she would be singled out individually § 208.14 Approval, denial, or referral of she has suffered actual past persecution for persecution if: application. or because he or she has a well-founded (i) The applicant establishes that there (a) By an immigration judge. Unless fear of future persecution. is a pattern or practice in his or her otherwise prohibited in § 208.13(c), an (1) Past persecution. An applicant country of nationality or last habitual immigration judge may grant or deny shall be found to be a refugee on the residence of persecution of a group of asylum in the exercise of discretion to basis of past persecution if he or she can persons similarly situated to the an applicant who qualifies as a refugee establish that he or she has suffered applicant on account of race, religion, under section 101(a)(42) of the Act. persecution in the past in his or her nationality, membership in a particular (b) By an asylum officer. Unless country of nationality or last habitual social group, or political opinion; and otherwise prohibited in § 208.13(c): residence on account of race, religion, (ii) The applicant establishes his or (1) An asylum officer may grant nationality, membership in a particular her own inclusion in and identification asylum in the exercise of discretion to social group, or political opinion, and with such group of persons such that his an applicant who qualifies as a refugee that he or she is unable or unwilling to or her fear of persecution upon return is under section 101(a)(42) of the Act. return to or avail himself or herself of reasonable. (2) If the alien appears to be the protection of that country owing to (c) Mandatory denials. (1) deportable, excludable or removable such persecution. Applications filed on or after April 1, under section 240 of the Act, the asylum (i) If it is determined that the 1997. For applications filed on or after officer shall either grant asylum or refer applicant has established past April 1, 1997, an applicant shall not the application to an immigration judge persecution, he or she shall be qualify for asylum if section 208(a)(2) or for adjudication in deportation, presumed also to have a well-founded 208(b)(2) of the Act applies to the exclusion, or removal proceedings. An fear of persecution unless a applicant. If the evidence indicates that asylum officer may refer such an preponderance of the evidence the applicant may be ineligible under application after an interview establishes that since the time the section 208(a)(2) of the Act to apply for conducted in accordance with § 208.9 or persecution occurred conditions in the asylum, or under section 208(b)(2) of the if, in accordance with § 208.10, the applicant’s country of nationality or last Act to be granted asylum, the applicant applicant is deemed to have waived his habitual residence have changed to such shall have the burden of proving by a or her right to an interview. an extent that the applicant no longer preponderance of the evidence, or in the (3) If the applicant is maintaining has a well-founded fear of being case of an alien described in section valid nonimmigrant status at the time persecuted if he or she were to return. 208(a)(2)(B) of the Act by clear and the application is decided, the asylum (ii) An application for asylum shall be convincing evidence, that he or she is officer may grant or deny asylum, denied if the applicant establishes past eligible. except in the case of an applicant persecution under this paragraph but it (2) Applications filed before April 1, described in § 208.2(b)(1). is also determined that he or she does 1997. An immigration judge or asylum (c) Applicability of § 103.2(b) of this not have a well-founded fear of future officer shall not grant asylum to any chapter. No application for asylum or persecution under paragraph (b)(2) of applicant who filed his or her withholding of deportation shall be this section, unless it is determined that application before April 1, 1997, if the subject to denial pursuant to § 103.2(b) the applicant has demonstrated alien: of this chapter. compelling reasons for being unwilling (i) Having been convicted by a final (d) Duration. If the alien’s asylum to return to his or her country of judgment of a particularly serious crime application is granted, the grant will be nationality or last habitual residence in the United States, constitutes a effective for an indefinite period, subject arising out of the severity of the past danger to the community; to termination as provided in § 208.22. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 467

§ 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 entered into another nation would be persecuted on account of race, particularly serious crime shall be with, or while in that nation received, religion, nationality, membership in a considered to constitute a danger to the an offer of permanent resident status, particular social group, or political community. If the evidence indicates citizenship, or some other type of opinion. the applicability of one or more of the permanent resettlement unless he (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 entry into that nation was such that his or her life or freedom was of proving by a preponderance of the a necessary consequence of his flight threatened in the proposed country of evidence that such grounds do not from persecution, that he remained in removal on account of race, religion, apply. that nation only as long as was nationality, membership in a particular (3) Exception to the prohibition on necessary to arrange onward travel, and social group, or political opinion, it withholding of deportation in certain that he did not establish significant ties shall be presumed that his or her life or cases. Section 243(h)(3) of the Act, as in that nation; or freedom would be threatened on return added by section 413 of Pub. L. 104– to that country unless a preponderance 132, shall apply only to applications (b) That the conditions of his of the evidence establishes that adjudicated in proceedings commenced residence in that nation were so conditions in the country have changed before April 1, 1997, and in which final substantially and consciously restricted to such an extent that it is no longer action had not been taken before April by the authority of the country of refuge more likely than not that the applicant 24, 1996. The discretion permitted by that he was not in fact resettled. In would be so persecuted there. that section to override section 243(h)(2) making his determination, the Asylum (3) In evaluating whether the shall be exercised only in the case of an Officer or Immigration Judge shall applicant has sustained the burden of applicant convicted of an aggravated consider the conditions under which proving that his or her life or freedom felony (or felonies) where he or she was other residents of the country live, the would be threatened in a particular sentenced to an aggregate term of type of housing made available to the country on account of race, religion, imprisonment of less than 5 years and refugee, whether permanent or nationality, membership in a particular the immigration judge determines on an temporary, the types and extent of social group, or political opinion, the individual basis that the crime (or employment available to the refugee, asylum officer or immigration judge crimes) of which the applicant was and the extent to which the refugee shall not require the applicant to convicted does not constitute a received permission to hold property provide evidence that he or she would particularly serious crime. Except in the and to enjoy other rights and privileges, be singled out individually for such cases specified in this paragraph, the such as travel documentation including persecution if: grounds for denial of withholding of a right of entry or reentry, education, (i) The applicant establishes that there deportation in section 243(h)(2) of the public relief, or naturalization, is a pattern or practice in the country of Act as it appeared prior to April 1, 1997, ordinarily available to others resident in proposed removal of persecution of a shall be deemed to comply with the the country. group of persons similarly situated to 1967 Protocol Relating to the Status of § 208.16 Withholding of removal. the applicant on account of race, Refugees. religion, nationality, membership in a (d) Reconsideration of discretionary (a) Consideration of application for particular social group, or political denial of asylum. In the event that an withholding of removal. An asylum opinion; and applicant is denied asylum solely in the officer shall not decide whether the (ii) The applicant establishes his or exercise of discretion, and the applicant exclusion, deportation, or removal of an her own inclusion in and identification is subsequently granted withholding of alien to a country where the alien’s life with such group of persons such that it deportation or removal under this or freedom would be threatened must be is more likely than not that his or her section, thereby effectively precluding withheld, except in the case of an alien life or freedom would be threatened admission of the applicant’s spouse or who is otherwise eligible for asylum but upon return. minor children following to join him or is precluded from being granted such (c) Approval or denial of application. her, the denial of asylum shall be status due solely to section 207(a)(5) of (1) General. Subject to paragraphs (c)(2) reconsidered. Factors to be considered the Act. In exclusion, deportation, or and (c)(3) of this section, an application will include the reasons for the denial removal proceedings, an immigration for withholding of deportation or and reasonable alternatives available to judge may adjudicate both an asylum removal to a country of proposed the applicant such as reunification with claim and a request for withholding of removal shall be granted if the his or her spouse or minor children in removal whether or not asylum is applicant’s eligibility for withholding is a third country. granted. established pursuant to paragraph (b) of (b) Eligibility for withholding of this section. § 208.17 Decisions. removal; burden of proof. The burden of (2) Mandatory denials. Except as The decision of an asylum officer to proof is on the applicant for provided in paragraph (c)(3) of this grant or to deny asylum or withholding withholding of removal to establish that section, an application for withholding of removal, or to refer an asylum his or her life or freedom would be of removal shall be denied if the application in accordance with threatened in the proposed country of applicant falls within section § 208.14(b), shall be communicated in removal on account of race, religion, 241(b)(3)(B) of the Act or, for writing to the applicant. Notices of nationality, membership in a particular applications for withholding of decisions to grant or deny asylum by social group, or political opinion. The deportation adjudicated in proceedings asylum officers shall generally be served testimony of the applicant, if credible, commenced prior to April 1, 1997, in person unless, in the discretion of the may be sufficient to sustain the burden within section 243(h)(2) of the Act as it asylum office director, routine service of proof without corroboration. The appeared prior to that date. For by mail is appropriate. A letter evidence shall be evaluated as follows: purposes of section 241(b)(3)(B)(ii) of communicating denial of the 468 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules application shall state the basis for paragraph (e) of this section, an asylum that asylum status or withholding of denial of the asylum application. The officer may terminate a grant of asylum deportation or removal and any letter also shall contain an assessment of made under the jurisdiction of an employment authorization issued the applicant’s credibility, unless the asylum officer or a district director if pursuant thereto, are terminated. denial is the result of the applicant’s following an interview, the asylum (d) Termination of derivative status. conviction of an aggravated felony. officer determines that: The termination of asylum status for a Pursuant to § 208.9(d), an applicant (1) There is a showing of fraud in the person who was the principal applicant must appear in person to receive and to alien’s application such that he or she shall result in termination of the asylum acknowledge receipt of the decision. was not eligible for asylum at the time status of a spouse or child whose status it was granted; was based on the asylum application of § 208.18 Determining if an asylum (2) As to the applications filed on or the principal. Such termination shall application is frivolous. after April 1, 1997, one or more of the not preclude the spouse or child of such For applications filed on or after April conditions described in section alien from separately asserting an 1, 1997, an applicant is subject to the 208(c)(2) of the Act exist; or asylum or withholding of deportation or provisions of section 208(d)(6) of the (3) As to applications filed before removal claim. Act only if a final order by an April 1, 1997, the alien no longer has a (e) Termination of asylum or immigration judge or the Board of well-founded fear of persecution upon withholding of deportation or removal Immigration Appeals specifically finds return due to a change of country by the Executive Office for Immigration that the alien knowingly filed a conditions in the alien’s country of Review. An immigration judge or the frivolous asylum application. An nationality or habitual residence or the Board of Immigration Appeals may asylum application is frivolous if it is alien has committed any act that would reopen a case pursuant to § 3.2 or § 3.23 fabricated or is brought for an improper have been grounds for denial of asylum of this chapter for the purpose of purpose. Such finding shall only be under § 208.14(e)(2). terminating a grant of asylum or made if the immigration judge or the (b) Termination of withholding of withholding of deportation or removal Board is satisfied that the applicant, deportation or removal by the Service. made under the jurisdiction of an during the course of the proceedings, Except as provided in paragraph (e) of immigration judge. In such a reopened has had sufficient opportunity to this section, an asylum officer may proceeding, the Service must establish, account for any discrepancies or terminate a grant of withholding of by a preponderance of evidence, one or implausible aspects of the claim. deportation or removal made under the more of the grounds set forth in jurisdiction of an asylum officer or a paragraphs (a) or (b) of this section. In § 208.19 [Reserved] district director if the asylum officer addition, an immigration judge may § 208.20 Effect on exclusion, deportation determines, following an interview, terminate a grant of asylum or and removal proceedings. that: withholding of deportation or removal (a) An alien who has been granted (1) The alien is no longer entitled to made under the jurisdiction of the asylum may not be deported or removed withholding of deportation or removal Service at any time after the alien has unless his or her asylum status is due to a change of conditions in the been provided a notice of intent to terminated pursuant to § 208.22. An country to which removal was withheld; terminate by the Service. Any alien in exclusion, deportation, or (2) There is a showing of fraud in the termination under this paragraph may removal proceedings who is granted alien’s application such that the alien occur in conjunction with an exclusion, withholding of removal or deportation was not eligible for withholding of deportation or removal proceeding. may not be deported or removed to the removal at the time it was granted; (f) Termination of asylum for arriving (3) The alien has committed any other country to which his or her deportation aliens. If the Service determines that an act that would have been grounds for or removal is ordered withheld unless applicant for admission who had denial of withholding of removal under the withholding order is terminated previously been granted asylum in the section 241(b)(3)(B) of the Act had it pursuant to § 208.22. United States falls within conditions set occurred prior to the grant of (b) When an alien’s asylum status or forth in section 208(c)(2) of the Act and withholding of removal; or withholding of removal or deportation is inadmissible, the Service shall issue (4) For applications filed in is terminated under this chapter, the a notice of intent to terminate asylum proceedings commenced before April 1, Service shall initiate removal and initiate removal proceedings under 1997, the alien has committed any act proceedings under section 235 or 240 of section 240 of the Act. The alien shall that would have been grounds for denial the Act, as appropriate, if the alien is present his or her response to the intent of withholding of deportation under not already in exclusion, deportation, or to terminate during proceedings before section 243(h)(2) of the Act. the immigration judge. removal proceedings. Removal (c) Procedure. Prior to the termination proceedings may also be in conjunction of a grant of asylum or withholding of §§ 208.23±208.29 [Reserved] with a termination hearing scheduled deportation or removal, the alien shall under § 208.22(e). be given notice of intent to terminate, Subpart BÐCredible Fear of Persecution § 208.21 Restoration of status. with the reasons therefor, at least 30 An alien who was maintaining his or days prior to the interview specified in § 208.30 Credible fear determinations her nonimmigrant status at the time of paragraph (a) of this section before an involving stowaways and applicants for filing an asylum application and has asylum officer. The alien shall be admission found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the Act. such application denied may continue provided the opportunity to present in or be restored to that status, if it has evidence showing that he or she is still (a) Jurisdiction. The provisions of this not expired. eligible for asylum or withholding of subpart apply to aliens subject to deportation or removal. If the asylum sections 235(a)(2) and 235(b)(1) of the § 208.22 Termination of asylum or officer determines that the alien is no Act. Pursuant to section 235(b)(1)(B) of withholding of removal or deportation. longer eligible for asylum or the Act, the Service has exclusive (a) Termination of asylum by the withholding of deportation or removal, jurisdiction to make credible fear Service. Except as provided in the alien shall be given written notice determinations, and the Executive Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 469

Office for Immigration Review has Immigration Judge, for full in accordance with section 235(a)(2) of exclusive jurisdiction to review such consideration of the asylum claim in the Act. If and when an approval of the determinations. Except as otherwise proceedings under § 208.2(b)(1). asylum application becomes final, the provided in this subpart, paragraphs (b) (e) Removal of aliens with no credible Service shall terminate removal through (e) of this section are the fear of persecution. If an alien, other proceedings under section 235(a)(2) of exclusive procedures applicable to than an alien stowaway, is found not to the Act. credible fear interviews, determinations, have a credible fear of persecution, the and review under section 235(b)(1)(B) of asylum officer shall order the alien PART 209ÐADJUSTMENT OF STATUS the Act. removed and issue a Form I–860, Notice OF REFUGEES AND ALIENS (b) Interview and procedure. The and Order of Expedited Removal. If an GRANTED ASYLUM asylum officer, as defined in section alien stowaway is found not to have a 42. The authority citation for part 209 235(b)(1)(E) of the Act, will conduct the credible fear of persecution, the asylum interview in a nonadversarial manner officer shall order the alien removed is revised to read as follows: and separate and apart from the general from the United States in accordance Authority: 8 U.S.C. 1101, 1103, 1157, 1158, public. At the time of the interview, the with section 235(a)(2) of the Act. The 1159, 1228, 1252, 1282; 8 CFR part 2. alien may be required to register his or asylum officer shall also advise the alien § 209.1 [Amended] her identity electronically or through of his or her right to request that an any other means designated by the immigration judge review the negative 43. In § 209.1, paragraph (a)(1) is Attorney General. The alien may consult decision. amended in the first sentence by with a person or persons of the alien’s (f) Review by immigration judge. The revising the reference to ‘‘, 236, and choosing prior to the interview or any asylum officer’s negative decision 237’’ to read ‘‘and 240’’. review thereof, and may present other regarding credible fear shall be subject 44. In § 209.2, the last sentence of evidence when available. Such to review by an immigration judge upon paragraph (c) is revised to read as consultation shall be at no expense to the applicant’s verbal or written request, follows: the Government and shall not in accordance with section § 209.2 Adjustment of status of alien unreasonably delay the process. Any 235(b)(1)(B)(iii)(III) of the Act. If the granted asylum. person or persons with whom the alien alien requests such review, the asylum * * * * * chooses to consult may be present at the officer shall arrange for the detention of (c) Application. ** * If an alien has interview and may be permitted, in the the alien and serve him or her with a been placed in deportation, exclusion, discretion of the asylum officer, to Form I–863, Notice of Referral to or removal proceedings under any present a brief statement at the end of Immigration Judge. Copies of the Form section of this Act (as effective on the I–863, the asylum officer’s notes, and the interview. The asylum officer, in his date such proceedings commenced), the other materials upon which the or her discretion, may place reasonable application can be filed and considered determination was based shall be limits on the number of such persons only in those proceedings. who may be present at the interview provided to the immigration judge with and on the length of statement or the negative determination. Upon * * * * * review of the asylum officer’s negative statements made. If the alien is unable PART 211ÐDOCUMENTARY to proceed in English, and if the asylum credible fear determination: (1) If the immigration judge concurs REQUIREMENTS; IMMIGRANTS; officer is unable to proceed competently WAIVERS in a language chosen by the alien, the with the determination of the asylum asylum officer shall arrange for the officer that the alien does not have a 45. The authority citation for part 211 assistance of an interpreter in credible fear of persecution, the case is revised to read as follows: shall be returned to the Service for conducting the interview. The Authority: 8 U.S.C. 1101, 1103, 1181, 1182, interpreter may not be a representative removal of the alien. 1203, 1225, 1257; 8 CFR part 2. or employee of the applicant’s country (2) If the immigration judge finds that of nationality or, if the applicant is the alien, other than an alien stowaway, 46. Part 211 is revised to read as stateless, the applicant’s country of last possesses a credible fear of persecution, follows: habitual residence. the immigration judge shall vacate the Sec. (c) Authority. Asylum officers order of the asylum officer issued on 211.1 Visas. conducting credible fear interviews Form I–860 and the Service may 211.2 Passports. shall have the authorities described in commence removal proceedings under 211.3 Expiration of immigrant visas, reentry section 240 of the Act, during which permits, refugee travel documents, and § 208.9(c). Forms I–551. (d) Referral for an asylum hearing. If time the alien may file an asylum 211.4 Waiver of documents for returning an alien, other than an alien stowaway, application in accordance with residents. is found to have a credible fear of § 208.4(b)(3)(i). 211.5 Alien commuters. persecution, the asylum officer will so (3) If the immigration judge finds that inform the alien, arrange for his or her an alien stowaway possesses a credible § 211.1 Visas. detention, and issue a Form I–862, fear of persecution, the alien shall be (a) General. Except as provided in Notice to Appear, for full consideration allowed to file an asylum application paragraph (b) of this section, each of the asylum claim in proceedings before the immigration judge in arriving alien applying for admission (or under section 240 of the Act. Parole of accordance with § 208.4(b)(3)(iii). The boarding the vessel or aircraft on which the alien may only be considered in immigration judge shall decide the he or she arrives) into the United States accordance with section 212(d)(5) of the asylum application as provided in that for lawful permanent residence, or as a Act and § 212.5 of this chapter. If an section. Such decision may be appealed returning lawful permanent resident, alien stowaway is found to have a by either the stowaway or the Service to shall present one of the following: credible fear of persecution, the asylum the Board of Immigration Appeals. If (1) A valid, unexpired immigrant visa; officer will so inform the alien, arrange and when a denial of the asylum (2) A valid, unexpired Form I–551, for his or her detention, and issue a application becomes final, the alien Alien Registration Receipt Card, if Form I–863, Notice to Referral to shall be removed from the United States seeking readmission after a temporary 470 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules absence of less than one year, or in the Lawful Permanent Residence. The § 211.2 Passports. case of a crewmember regularly serving carrier of such alien shall not be liable (a) A passport valid for the bearer’s on board a vessel or aircraft of United for a fine pursuant to section 273 of the entry into a foreign country at least 60 States registry seeking readmission after Act. days beyond the expiration date of his any job-connected absence; (3) If an immigrant alien returning to or her immigrant visa shall be presented (3) A valid, unexpired Form I–327, an unrelinquished lawful permanent by each immigrant except an immigrant Permit to Reenter the United States; residence in the United States after a who: (4) A valid, unexpired Form I–571, temporary absence abroad believes that (1) Is the parent, spouse, or unmarried Refugee Travel Document, properly good cause exists for his or her failure son or daughter of a United States endorsed to reflect admission as a to present an immigrant visa, Form I– citizen or of an alien lawful permanent lawful permanent resident; 551, or reentry permit, the alien may file resident of the United States, (5) An expired Form I–551, Alien an application for a waiver of this (2) Is entering under the provisions of Registration Receipt Card, accompanied requirement with the district director in § 211.1(a)(2) through (a)(7), or by a filing receipt issued within the charge of the port-of-entry. To apply for § 211.1(b)(1), previous six months for either a Form I– this waiver, the alien must file Form I– (3) Is a stateless person or a person 751, Petition to Remove the Conditions 193, Application for Waiver of Passport who because of his or her opposition to on Residence, or Form I–829, Petition and/or Visa, with the fee prescribed in Communism is unwilling or unable to by Entrepreneur to Remove Conditions, § 103.7(b)(1) of this chapter, except that obtain a passport from the country of his if seeking admission or readmission if the alien’s Form I–551 was lost or or her nationality, or is the after a temporary absence of less than stolen, the alien shall instead file Form accompanying spouse or unmarried son one year; I–90, Application to Replace Alien or daughter of such immigrant, (6) A Form I–551, whether or not Registration Receipt Card, with the fee (4) Is a member of the Armed Forces expired, presented by a civilian or prescribed in § 103.7(b)(1) of this of the United States, military employee of the United States (b) If an alien seeking admission as an Government, who was outside the chapter. In the exercise of discretion, the district director in charge of the immigrant with an immigrant visa United States pursuant to official orders, believes that good cause exists for his or or the spouse or child of such employee port-of-entry may waive the alien’s lack of an immigrant visa, Form I–551, or her failure to present a passport, the who is preceding, accompanying or alien may file an application for a following to join within four months the reentry permit and admit the alien as a returning resident, if the district director waiver of this requirement with the employee, returning to the United district director in charge of the port-of- States; or is satisfied that the alien has established good cause for the alien’s failure to entry. To apply for this waiver, the alien (7) Form I–551, whether or not must file Form I–193, Application for expired, or a transportation letter issued present an immigrant visa, Form I–551, or reentry permit. Waiver of Passport and/or Visa, with the by an American consular officer, fee prescribed in § 103.7(b)(1) of this presented by an employee of the (c) Immigrants having occupational status defined in section 101(a)(15) (A), chapter. In the exercise of discretion, American University of Beirut, the district director in charge of the returning temporarily to the United (E), or (G) of the Act. An immigrant visa, reentry permit, or Form I–551 shall be port-of-entry may waive the alien’s lack States before resuming employment of passport and admit the alien as an with the American University of Beirut, invalid when presented by an alien who has an occupational status under section immigrant, if the district director is or resuming permanent residence in the satisfied that the alien has established United States. 101(a)(15) (A), (E), or (G) of the Act, unless he or she has previously good cause for the alien’s failure to (b) Waivers. (1) A waiver of the visa present a passport. required in paragraph (a) of this section submitted, or submits at the time he or shall be granted without fee by the she applies for admission to the United § 211.3 Expiration of immigrant visas, district director, upon presentation of States, the written waiver required by reentry permits, refugee travel document, the child’s birth certificate, to a child section 247(b) of the Act and 8 CFR part and Form I±551. born subsequent to the issuance of an 247. An immigrant visa, reentry permit, immigrant visa to his or her (d) Returning temporary residents. (1) refugee travel document, or Form I–551 accompanying parent who applies for Form I–688, Temporary Resident Card, shall be regarded as unexpired if the admission during the validity of such a may be presented in lieu of an rightful holder embarked or enplaned visa; or a child born during the immigrant visa by an alien whose status before the expiration of his immigrant temporary visit abroad of a mother who has been adjusted to that of a temporary visa, reentry permit, or refugee travel is a lawful permanent resident alien, or resident under the provisions of § 210.1 document, or, with respect to Form I– a national, of the United States, of this chapter, such status not having 551, before the first anniversary of the provided that the child’s application for changed, and who is returning to an date on which he departed from the admission to the United States is made unrelinquished residence within one United States: provided, that the vessel within two years of birth, the child is year after a temporary absence abroad. or aircraft on which he so embarked or accompanied by the parent who is (2) Form I–688 may be presented in enplaned arrives in the United States or applying for readmission as a lieu of an immigrant visa by an alien foreign contiguous territory on a permanent resident upon the first return whose status has been adjusted to that continuous voyage. The continuity of of the parent to the United States after of a temporary resident under the the voyage shall not be deemed to have the birth of the child, and the provisions of § 245a.2 of this chapter, been interrupted by scheduled or accompanying parent is found to be such status not having changed, and emergency stops of the vessel or aircraft admissible to the United States. who is returning to an unrelinquished en route to the United States or foreign (2) For an alien described in residence within 30 days after a contiguous territory, or by a layover in paragraph (b)(1) of this section, temporary absence abroad, provided foreign contiguous territory necessitated recordation of the child’s entry shall be that the aggregate of all such absences solely for the purpose of effecting a on Form I–181, Memorandum of abroad during the temporary residence transportation connection to the United Creation of Record of Admission for period has not exceeded 90 days. States. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 471

§ 211.4 Waiver of documents for returning preceding the application for admission in Service detention who is willing to residents. into the United States. sponsor a minor and the minor may be (a) Pursuant to the authority (c) Eligibility for benefits under the released to that relative notwithstanding contained in section 211(b) of the Act, immigration and nationality laws. Until that the juvenile has a relative who is in an alien previously lawfully admitted to he or she has taken up residence in the detention. the United States for permanent United States, an alien commuter (ii) If a relative who is not in residence who, upon return from a cannot satisfy the residence detention cannot be located to sponsor temporary absence was inadmissible requirements of the naturalization laws the minor, the minor may be released because of failure to have or to present and cannot qualify for any benefits with an accompany relative who is in a valid passport, immigrant visa, reentry under the immigration laws on his or detention. permit, border crossing card, or other her own behalf or on behalf or his or her (iii) If the Service cannot locate a document required at the time of entry, relatives other than as specified in relative in or out of detention to sponsor may be granted a waiver of such paragraph (a) of this section. When an the minor, but the minor has identified requirement in the discretion of the alien commuter takes up residence in a nonrelative in detention who district director if the district director the United States, he or she shall no accompanied him on arrival, the determines that such alien: longer be regarded as a commuter. He or question of releasing the minor and the (1) Was not otherwise inadmissible at she may facilitate proof of having taken accompanying nonrelative adult shall be the time of entry, or up such residence by notifying the addressed on a case-by-case basis. (2) Having been otherwise Service as soon as possible, preferably at (4) Aliens who will be witnesses in inadmissible at the time of entry is with the time of his or her first reentry for proceedings being, or to be, conducted respect thereto qualified for an that purpose. Application for issuance by judicial, administrative, or legislative exemption from deportability under of a new alien registration receipt card bodies in the United States; or (5) Aliens whose continued detention section 237(a)(1)(H) of the Act, and to show that he or she has taken up is not in the public interest as (3) Is not otherwise subject to residence in the United States shall be determined by the district director or removal. made on Form I–90. (b) Denial of a waiver by the district chief patrol agent. director is not appealable but shall be PART 212ÐDOCUMENTARY (b) In the case of all other arriving without prejudice to renewal of an REQUIREMENTS: NONIMMIGRANTS; aliens, except those detained under application and reconsideration in WAIVERS; ADMISSION OF CERTAIN § 235.3 (b) or (c) of this chapter and proceedings before the immigration INADMISSIBLE ALIENS; PAROLE paragraph (a) of this section, the district judge. director or chief patrol agent may, after 47. The authority citation for part 212 review of the individual case, parole § 211.5 Alien commuters. continues to read as follows: into the United States temporarily in (a) General. An alien lawfully Authority: 8 U.S.C. 1101, 1102, 1103, 1182, accordance with section 212(d)(5)(A) of admitted for permanent residence or a 1184, 1187, 1225, 1226, 1227, 1228, 1252; 8 the Act, any alien applicant for special agricultural worker lawfully CFR part 2. admission, under such terms and admitted for temporary residence under conditions, including those set forth in 48. Section 212.5 is amended by: section 210 of the Act may commence paragraph (c) of this section, as he or a. Revising paragraph (a) and (b); or continue to reside in foreign b. Revising introductory text in she may deem appropriate. An alien contiguous territory and commute as a paragraph (c); who arrives at a port-of-entry and special immigrant defined in section c. Revising paragraph (c)(1); and by applies for parole into the United States 101(a)(27)(A) of the Act to his or her d. Revising paragraph (d)(2)(i), to read for the sole purpose of seeking place of employment in the United as follows: adjustment of status under section 245A States. An alien commuter engaged in of the Act, without benefit of advance seasonal work will be presumed to have § 212.5 Parole of aliens into the United authorization as described in paragraph taken up residence in the United States States. (e) of this section shall be denied parole if he or she is present in this country for (a) The parole of aliens within the and detained for removal in accordance more than six months, in the aggregate, following groups who have been or are with the provisions of § 235.3 (b) or (c) during any continuous 12-month detained in accordance with § 235.3 (b) of this chapter. An alien seeking to enter period. An alien commuter’s address or (c) of this chapter would generally be the United States for the sole purpose of report under section 265 of the Act must justified for ‘‘urgent humanitarian applying for adjustment of status under show his or her actual residence address reasons’’ or ‘‘significant public benefit,’’ section 210 of the Act shall be denied even though it is not in the United provided the aliens present neither a parole and detained for removal under States. security risk nor a risk of absconding: § 235.3 (b) or (c) of this chapter, unless (b) Loss of residence status. An alien (1) Aliens who have serious medical the alien has been recommended for commuter who has been out of regular conditions in which continued approval of such application for employment in the United States for a detention would not be appropriate; adjustment by a consular officer at an continuous period of six months shall (2) Women who have been medically Overseas Processing Office. be deemed to have lost residence status, certified as pregnant; (c) Conditions. In any case where an notwithstanding temporary entries in (3) Aliens who are defined as alien is paroled under paragraph (a) or the interim for other than employment juveniles in § 236.3(a) of this chapter. (b) of this section, the district director purposes. An exception applies when The district director or chief patrol or chief patrol agent may require employment in the United States was agent shall follow the guidelines set reasonable assurances that the alien will interrupted for reasons beyond the forth in § 236.3(a) of this chapter in appear at all hearings and/or depart the individual’s control other than lack of a determining under what conditions a United States when required to do so. job opportunity or the commuter can juvenile should be paroled from Not all factors listed need be present for demonstrate that he or she has worked detention; parole to be exercised. The district 90 days in the United States in the (i) Juveniles may be released to a director or chief patrol agent should aggregate during the 12-month period relative (brother, sister, aunt, uncle) not apply reasonable discretion. The 472 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules consideration of all relevant factors PART 213ÐADMISSION OF ALIENS I–829 until it has been determined that includes: ON GIVING BOND OR CASH DEPOSIT the alien’s status will not be terminated. (1) The giving of an undertaking by During this time, the alien shall 50. The authority citation for part 213 continue to be a lawful conditional the applicant, counsel, or a sponsor to is revised to read as follows: ensure appearances or departure, and a permanent resident with all the rights, bond may be required on Form I–352 in Authority: 8 U.S.C. 1103; 8 CFR part 2. privileges, and responsibilities provided to persons possessing such status. Prior such amount as the district director or § 213.1 [Amended] chief patrol agent may deem to issuing the notice of termination, the 51. Section 213.1 is amended in the director shall provide the alien with an appropriate; last sentence by revising the term ‘‘part * * * * * opportunity to review and rebut the 103’’ to read ‘‘§ 103.6’’. evidence upon which the decision is to (d) * * * PART 214ÐNONIMMIGRANT CLASSES be based, in accordance with (2)(i) On notice. In cases not covered § 103.2(b)(2) of this chapter. The by paragraph (d)(1) of this section, upon 52. The authority citation for part 214 termination of status, and all of the accomplishment of the purpose for continues to read as follows: rights and privileges concomitant which parole was authorized or when in Authority: 8 U.S.C. 1101, 1103, 1182, 1184, thereto (including authorization to the opinion of the district director or 1186a, 1187, 1221, 1281, 1282; 8 CFR part 2. accept or continue in employment in chief patrol agent in charge of the area 53. Section 214.1 is amended by this country), shall take effect as of the in which the alien is located, neither date of such determination by the humanitarian reasons nor public benefit revising paragraph (c)(4)(iv) to read as follows: director, although the alien may request warrants the continued presence of the a review of such determination in alien in the United States, parole shall § 214.1 Requirements for admission, removal proceedings. In addition to the be terminated upon written notice to the extension, and maintenance of status. notice of termination, the director shall alien and he or she shall be restored to * * * * * issue a notice to appear in accordance the status that he or she had at the time (c) * * * with 8 CFR part 239. During the ensuing of parole. When a charging document is (4) * * * removal proceedings, the alien may served on the alien, the charging (iv) The alien is not the subject of submit evidence to rebut the document will constitute written notice deportation proceedings under section determination of the director. The of termination of parole, unless 242 of the Act (prior to April 1, 1997) burden of proof shall be on the Service otherwise specified. Any further or removal proceedings under section to establish, by a preponderance of the inspection or hearing shall be 240 of the Act. evidence, that one or more of the conducted under section 235 or 250 of * * * * * conditions in section 216(b)(1) or the Act and this chapter, or any order 216A(b)(1) of the Act, whichever is of exclusion, deportation, or removal PART 215Ð[REMOVED] applicable, are true, or that an alien previously entered shall be executed. If 54. Part 215 is removed. entrepreneur who was admitted the exclusion, deportation, or removal pursuant to section 203(b)(5) of the Act order cannot be executed by removal PART 216ÐCONDITIONAL BASIS OF obtained his or her investment capital within a reasonable time, the alien shall LAWFUL PERMANENT RESIDENCE through other than legal means (such as again be released on parole unless in the STATUS through the sale of illegal drugs). opinion of the district director or the chief patrol agent the public interest 55. The authority citation for part 216 (b) Determination of fraud after two requires that the alien be continued in continues to read as follows: years. If, subsequent to the removal of custody. the conditional basis of an alien’s Authority: 8 U.S.C. 1101, 1103, 1154, 1184, permanent resident status, the director * * * * * 1186a, 1186b, and 8 CFR part 2. determines that an alien spouse 49. In § 212.6 paragraph (a)(2) is Section 216.3 is revised to read as obtained permanent resident status revised to read as follows: follows: through a marriage which was entered into for the purpose of evading the § 212.6 Nonresident alien border crossing § 216.3 Termination of conditional resident cards. status. immigration laws or an alien entrepreneur obtained permanent (a) * * * (a) During the two-year conditional resident status through a commercial (2) Mexican border crossing card, period. The director shall send a formal enterprise which was improper under Form I–186 or I–586. The rightful holder written notice to the conditional section 216A(b)(1) of the Act, the of a nonresident alien Mexican border permanent resident of the termination of director may institute rescission crossing card, Form I–186 or I–586, may the alien’s conditional permanent proceedings pursuant to section 246 of be admitted under § 235.1(f) of this resident status if the director determines the Act (if otherwise appropriate) or chapter if found otherwise admissible. that any of the conditions set forth in removal proceedings under section 240 However, any alien seeking entry as a section 216(b)(1) or 216A(b)(1) of the of the Act. Act, whichever is applicable, are true, or visitor for business or pleasure must 57. Section 216.4 is amended by: also present a valid passport and shall it becomes known to the government be issued Form I–94 if the alien is that an alien entrepreneur who was a. Revising paragraphs (a)(6) and applying for admission from: admitted pursuant to section 203(b)(5) (b)(3); of the Act obtained his or her b. Revising paragraph (c)(4); (i) A country other than Mexico or investment capital through other than Canada, or legal means (such as through the sale of c. Removing the unnumbered (ii) Canada if the alien has been in a illegal drugs). If the Service issues a paragraph immediately after paragraph country other than the United States or notice of intent to terminate an alien’s (c)(4); and by Canada since leaving Mexico. conditional resident status, the director d. Revising paragraph (d)(2) to read as * * * * * shall not adjudicate Form I–751 or Form follows: Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 473

§ 216.4 Joint petition to remove If the interview is rescheduled at the (1) Removal from the United States conditional basis of lawful permanent request of the petitioners, the Service would result in extreme hardship; resident status for alien spouse. shall not be required to conduct the * * * * * (a) * * * interview within the 90-day period (d) Interview. The service center (6) Termination of status for failure to following the filing of the petition. file petition. Failure to properly file director may refer the application to the Form I–751 within the 90-day period (c) * * * appropriate local office and require that immediately preceding the second (4) A fee or other consideration was the alien appear for an interview in anniversary of the date on which the given (other than a fee or other connection with the application for a alien obtained lawful permanent consideration to an attorney for waiver. The director shall deny the residence on a conditional basis shall assistance in preparation of a lawful application and initiate removal result in the automatic termination of petition) in connection with the filing of proceedings if the alien fails to appear the alien’s permanent residence status the petition through which the alien for the interview as required, unless the and the initiation of proceedings to obtained conditional permanent alien establishes good cause for such remove the alien from the United States. residence. If derogatory information is failure and the interview is rescheduled. In such proceedings the burden shall be determined regarding any of these (e) Adjudication of waiver on the alien to establish that he or she issues, the director shall offer the application. (1) Application based on complied with the requirement to file petitioners the opportunity to rebut claim of hardship. In considering an the joint petition within the designated such information. If the petitioners fail application for a waiver based upon an period. Form I–751 may be filed after to overcome such derogatory alien’s claim that extreme hardship the expiration of the 90-day period only information the director may deny the would result from the alien’s removal if the alien establishes to the satisfaction joint petition, terminate the alien’s from the United States, the director of the director, in writing, that there was permanent residence, and issue a notice shall take into account only those good cause for the failure to file Form to appear to initiate removal factors that arose subsequent to the I–751 within the required time period. proceedings. If derogatory information alien’s entry as a conditional permanent If the joint petition is filed prior to the not relating to any of these issues is resident. The director shall bear in mind jurisdiction vesting with the determined during the course of the that any removal from the United States immigration judge in removal interview, such information shall be is likely to result in a certain degree of proceedings and the director excuses forwarded to the investigations unit for hardship, and that only in those cases the late filing and approves the petition, appropriate action. If no unresolved where the hardship is extreme should he or she shall restore the alien’s derogatory information is determined the application for a waiver be granted. permanent residence status, remove the relating to these issues, the petition The burden of establishing that extreme conditional basis of such status and shall be approved and the conditional hardship exists rests solely with the cancel any outstanding notice to appear basis of the alien’s permanent residence applicant. in accordance with § 239.2 of this status removed, regardless of any action * * * * * chapter. If the joint petition is not filed taken or contemplated regarding other (3) * * * until after jurisdiction vests with the possible grounds for removal. (ii) A conditional resident or former immigration judge, the immigration (d) * * * conditional resident who has not judge may terminate the matter upon departed the United States after joint motion by the alien and the (2) Denial. If the director denies the termination of resident status may apply service. joint petition, he or she shall provide (b) * * * written notice to the alien of the for the waiver. A conditional resident (3) Termination of status for failure to decision and the reason(s) therefor and who is in exclusion, deportation, or appear for interview. If the conditional shall issue a notice to appear under removal proceedings may apply for the resident alien and/or the petitioning section 239 of the Act and 8 CFR part waiver only until such time as there is spouse fail to appear for an interview in 239. The alien’s lawful permanent a final order of deportation or removal. connection with the joint petition residence status shall be terminated as The conditional resident may apply for required by section 216(c) of the Act, of the date of the director’s written the waiver regardless of his or her the alien’s permanent residence status decision. The alien shall also be present marital status. The conditional will be automatically terminated as of instructed to surrender any Alien resident may still be residing with the the second anniversary of the date on Registration Receipt Card previously citizen or permanent resident spouse, or which the alien obtained permanent issued by the Service. No appeal shall may be divorced or separated. residence. The alien shall be provided lie from the decision of the director; * * * * * with written notification of the however, the alien may seek review of (f) Decision. The director shall termination and the reasons therefor, the decision in removal proceedings. In provide the alien with written notice of and a notice to appear shall be issued such proceedings the burden of proof the decision on the application for placing the alien under removal shall be on the Service to establish, by waiver. If the decision is adverse, the proceedings. The alien may seek review a preponderance of the evidence, that director shall advise the alien of the of the decision to terminate his or her the facts and information set forth by reasons therefore, notify the alien of the status in such proceedings, but the the petitioners are not true or that the termination of his or her permanent burden shall be on the alien to establish petition was properly denied. residence status, instruct the alien to compliance with the interview 58. Section 216.5 is amended by surrender any Alien Registration requirements. If the alien submits a revising paragraphs (a)(1), (d), (e)(1), Receipt Card issued by the Service and written request that the interview be (e)(3)(ii), and (f) to read as follows: issue a notice to appear placing the rescheduled or that the interview be alien in removal proceedings. No appeal waived, and the director determines that § 216.5 Waiver of requirement to file joint shall lie from the decision of the there is good cause for granting the petition to remove conditions by alien director, however, the alien may seek spouse. request, the interview may be review of such decision in removal rescheduled or waived, as appropriate. (a) * * * proceedings. 474 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

PART 217ÐVISA WAIVER PILOT (b) Special program requirements. (1) under this part from departing from the PROGRAM General. In addition to meeting all of the United States within his or her period requirements for the Visa Waiver Pilot of authorized stay, the district director 59. The authority citation for part 217 Program specified in section 217 of the having jurisdiction over the place of the continues to read as follows: Act, each applicant must posses a valid, alien’s temporary stay may, in his or her Authority: 8 U.S.C. 1103, 1187; 8 CFR part unexpired passport issued by a discretion, grant a period of satisfactory 2. designated country and present a departure not to exceed 30 days. If completed, signed Form I–94W, 60. Section 217.1 is revised to read as departure is accomplished during that Nonimmigrant Visa Waiver Arrival/ follows: period, the alien is to be regarded as Departure Form. having satisfactorily accomplished the § 217.1 Scope. (2) Persons previously removed. visit without overstaying the allotted The Visa Waiver Pilot Program Aliens who have been deported or time. (VWPP) described in this section is removed from the United States, after (b) Readmission after departure to established pursuant to the provisions having been determined deportable, contiguous territory or adjacent island. of section 217 of the Act. require the consent of the Attorney An alien admitted to the United States 61. Section 217.2 is revised to read as General to apply for admission to the under this part may be readmitted to the follows: United States pursuant to section United States for the balance of his or 212(a)(9)(A)(ii) of the Act. Such persons her Visa Waiver Pilot Program § 217.2 Eligibility. may not be admitted to the United admission period if he or she is (a) Defintions. As used in this part, States under the provisions of this part otherwise admissible. the term: notwithstanding the fact that the 63. Section 217.4 is amended by: Carrier refers to the owner, charterer, required consent of the Attorney a. Revising the section heading: b. Removing paragraph (a); lessee, or authorized agent of any General may have been secured. Such c. Redesignating paragraphs (b), (c), commercial vessel or commercial aliens must secure a visa in order to be and (d) as paragraphs (a), (b), and (c) aircraft engaged in transporting admitted to the United States as nonimmigrants, unless otherwise respectively; passengers to the United States from a d. Revising newly redesignated foreign place. exempt. (c) Restrictions on manner of arrival. paragraph (a)(1); Designated country refers to Andorra, e. Adding a new paragraph (a)(3); Argentina, Australia, Belgium, Brunei, (1) Applicants arriving by air and sea. Applicants must arrive on a carrier f. Revising newly redesignated Denmark, Finland, France, Germany, paragraph (b); and by Iceland, Italy, Japan, Liechtenstein, signatory to an agreement specified in § 217.6 and at the time of arrival must g. Revising newly redesignated Luxembourg, Monaco, the Netherlands, paragraph (c) to read as follows: New Zealand, Norway, San Marino, be in possession of a return trip ticket Spain, Sweden, Switzerland, and the that will transport the traveler out of the § 217.4 Inadmissibility and deportability. United Kingdom. The United Kingdom United States to any other foreign port (a) Determinations of inadmissibility. refers only to British citizens who have or place as long as the trip does not (1) An alien who applies for admission the unrestricted right of permanent terminate in contiguous territory or an under the provisions of section 217 of abode in the United Kingdom (England, adjacent island; except that the return the Act, who is determined by an Scotland, Wales, Northern Ireland, the trip ticket may transport the traveler to immigration officer not to be eligible for Channel Islands and the Isle of Man); it contiguous territory or an adjacent admission under that section or to be does not refer to British overseas island, if the traveler is a resident of the inadmissible to the United States under citizens, British dependent territories’ country of destination. one or more of the grounds of (2) Applicants arriving at land border citizens, or citizens of British inadmissibility listed in section 212 of ports-of-entry. Any Visa Waiver Pilot Commonwealth countries. Effective the Act (other than for lack of a visa), Program applicant arriving at a land April 1, 1995, until September 30, 1998, or who is in possession of and presents border port-of-entry must provide or the expiration of the Visa Waiver fraudulent or counterfeit travel evidence to the immigration officer of Pilot Program, whichever comes first, documents, will be refused admission financial solvency and a domicile Ireland has been designated as a Visa into the United States and removed. abroad to which the applicant intends to Waiver Pilot Program country with Such refusal and removal shall be made return. An applicant arriving at a land- Probationary Status in accordance with at the level of the port director or border port-of-entry will be charged a section 217(g) of the Act. officer-in-charge, or an officer acting in fee as prescribed in § 103.7(b)(1) of this Return trip ticket means any return that capacity, and shall be effected chapter for issuance of Form I–94W, trip transportation ticket presented by without referral of the alien to an Nonimmigrant Visa Waiver Arrival/ an arriving Visa Waiver Pilot Program immigration judge for further inquiry, Departure Form. A round-trip applicant on a participating carrier valid examination, or hearing, except that an transportation ticket is not required of for at least 1 year, airline employee alien who presents himself or herself as applicants at land border ports-of-entry. an applicant for admission under passes indicating return passage, (d) Aliens in transit. An alien who is section 217 of the Act, who applies for individual vouchers for return passage, in transit through the United States is asylum in the United States must be group vouchers for return passage for eligible to apply for admission under issued a Notice of Referral to charter flights, and military travel orders the Visa Waiver Pilot Program, provided Immigration Judge for a proceeding in which include military dependents for the applicant meets all other program accordance with § 208.2(b)(1) of this return to duty stations outside the requirements. United States on U.S. military flights. A 62. Section 217.3 is revised to read as chapter. period of validity of 1 year need not be follows: * * * * * reflected on the ticket itself, provided (3) Refusal under paragraph (a)(1) of that the carrier agrees that it will honor § 217.3 Maintenance of status. this section shall not constitute removal the return portion of the ticket at any (a) Satisfactory departure. If an for purposes of section 212(a)(9)(A) of time, as provided in § 217.6(b)(2)(v). emergency prevents an alien admitted the Act. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 475

(b) Determination of deportability. (1) enter into an agreement on Form I–775 exceed 15 days within which the carrier An alien who has been admitted to the to transport as an applicant for may bring itself into compliance with United States under the provisions of admission under section 217 of the Act the terms of the carrier agreement. The section 217 of the Act and of this part and this chapter, only an alien who: agreement shall be subject to who is determined by an immigration (i) Is a national of and in possession cancellation by either party for any officer to be deportable from the United of a valid passport issued by a country reason upon 15 days’ written notice to States under one or more of the grounds listed in § 217.2; the other party. of deportability listed in section 237 of (ii) Is in possession of a completed the Act shall be removed from the and signed Form I–94W, Nonimmigrant PART 221ÐADMISSION OF VISITORS United States to his or her country of Visa Waiver Arrival/Departure Form, OR STUDENTS nationality or last residence. Such prior to inspection; 66. The authority citation for part 221 removal shall be determined by the (iii) Seeks admission into the United is revised to read as follows: district director who has jurisdiction States for 90 days or less; over the place where the alien is found, (iv) Is in possession of a round trip Authority: 8 U.S.C. 1101, 1103, 1201; 8 and shall be effected without referral of ticket; and CFR part 2. (v) Appears otherwise admissible. the alien to an immigration judge for a § 221.1 [Amended] determination of deportability, except (2) The carrier further agrees to: (i) Submit to the Immigration and 67. Section 221.1 is amended in the that an alien admitted as a Visa Waiver Naturalization Service the Form I–94 last sentence by revising the term ‘‘part Pilot Program visitor who applies for was required by 8 CFR part 231 and 103’’ to read ‘‘§ 103.6’’. asylum in the United States must be section 217(e)(1)(B) of the Act; issued a Notice of Referral to (ii) Remove from the United States PART 223ÐREENTRY PERMITS, Immigration Judge for a proceeding in any alien transported by the carrier to REFUGEE TRAVEL DOCUMENTS, AND accordance with § 208.2(b)(1) of this the United States for admission under ADVANCE PAROLE DOCUMENTS chapter. the Visa Waiver Pilot Program, in the (2) Removal under paragraph (b)(1) is event that the alien is determined by an 68. The authority citation for part 223 equivalent in all respects and has the immigration officer at the port-of-entry is revised to read as follows: same consequences as removal after to be inadmissible or is determined to Authority: 8 U.S.C. 1103, 1181, 1182, proceedings conducted under section have remained unlawfully beyond the 1186a, 1203, 1225, 1226, 1227, 1251; Protocol 240 of the Act. Relating to the Status of Refugees, November (c)(1) Removal of inadmissible aliens 90-day period of admission under the program; 1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR who arrived by air or sea. Removal of an part 2. (iii) Reimburse within 30 days of alien from the United States under this notice (not pay as a penalty) the Service 69. In § 223.1, paragraph (b) is revised section may be effected using the return for any and all expenses incurred in the to read as follows: portion of the round trip passage transportation (from the point of arrival presented by the alien at the time of in the United States to the place of § 223.1 Purpose of documents. entry to the United States as required by removal) of any alien found * * * * * section 217(a)(7) of the Act. Such inadmissible or deportable under this (b) Refugee travel document. A removal shall be on the first available program; refugee travel document is issued means of transportation to the alien’s (iv) Retain the responsibilities and pursuant to this part and article 28 of point of embarkation to the United obligations enumerated in this part the United Nations Convention of July States. Nothing in this part absolves the should the alien under the Visa Waiver 29, 1951, for the purpose of travel. carrier of the responsibility to remove Pilot Program depart temporarily for a Except as provided in § 223.3(d)(2)(i), a any inadmissible or deportable alien at visit to foreign contiguous territory person who holds refugee status carrier expense, as provided in during the period of authorized stay in pursuant to section 207 of the Act, or § 217.6(b). the United States and be readmitted asylum status pursuant to section 208 of (2) Removal of inadmissible and pursuant to § 217.3(b); the Act, must have a refugee travel deportable aliens who arrived at land (v) Transport an alien found document to return to the United States border ports-of-entry. Removal under inadmissible to the United States or after temporary travel abroad unless he this section will be by the first available deportable from the United States after or she is in possession of a valid means of transportation deemed admission under the Visa Waiver Pilot advance parole document. appropriate by the district director. Program, by accepting as full payment 70. In § 223.2, paragraph (b)(2) is § 217.5 [Removed and reserved] for return passage the return portion of revised to read as follows: the transportation ticket as required in 64. Section 217.5 is removed and § 223.2 Processing. reserved. paragraph (b)(1)(iv) of this section from 65. Section 217.6 is revised to read as the original port of arrival in the United * * * * * follows: States to point of embarkation or to the (b) * * * country of nationality or last residence. (2) Refugee travel document. (i) § 217.6 Carrier agreements. (c) Termination of agreements. The General. Except as otherwise provided (a) General. The carrier agreements Commissioner, on behalf of the Attorney in this section, an application may be referred to in section 217(e) of the Act General, may terminate any carrier approved if filed by a person who is in shall be made by the Commissioner on agreement under this part, with 5 days the United States at the time of behalf of the Attorney General and shall notice to a carrier, for the carrier’s application, and either holds valid be on Form I–775, Visa Waiver Pilot failure to meet the terms of such refugee status under section 207 of the Program Agreement. agreement. As a matter of discretion, the Act, valid asylum status under section (b) Agreement provisions. (1) To be Commissioner may notify a carrier of 208 of the Act, or is a permanent authorized to transport an alien to the the existence of a basis for termination resident and received such status as a United States pursuant to section 217 of of a carrier agreement under this part direct result of his or her asylum or the Act and this part, a carrier must and allow the carrier a period not to refugee status. 476 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

(ii) Discretionary authority to accept PART 232ÐDETENTION OF ALIENS contracts with transportation lines an application from an alien not within FOR PHYSICAL AND MENTAL referred to in section 233(a) of the Act the United States. As a matter of EXAMINATION shall be made by the Commissioner on discretion, a district having jurisdiction behalf of the government and shall be over a port-of-entry or a preinspection 72. The heading for part 232 is revised documented on Form I–426. The station where an alien is an applicant to read as set forth above. contracts with transportation lines for admission, or an overseas district 73. The authority citation for part 232 desiring their passengers to be director having jurisdiction over the is revised to read as follows: preinspected at places outside the place where an alien is physically Authority: 8 U.S.C. 1103, 1222, 1224, 1252; United States shall be made by the present, may accept and adjudicate an 8 CFR part 2. Commissioner on behalf of the application for a refugee travel § 232.1 Redesignated as 232.3 and government and shall be documented document from an alien who previously revised] on Form I–425; except that contracts for had been admitted to the United States irregularly operated charter flights may 74. Section 232.1 is redesignated as as a refugee, or who previously had be entered into by the Associate $232.3, and is revised to read as follows: been granted asylum status in the Commissioner for Examinations or an United States, and who had departed § 232.3 Arriving aliens. immigration officer designated by the from the United States without having When a district director has Executive Associate Commissioner for applied for such refugee travel reasonable grounds for believing that Programs and having jurisdiction over document, provided: persons arriving in the United States the location where the inspection will (A) The alien submits a Form I–131, should be detained for reasons specified take place. Application for Travel Document, with in section 232 of the Act, he or she 80. In newly redesignated § 233.3, the fee required under § 103.7(b)(1) of shall, after consultation with the United paragraph (b) is revised to read as this chapter. (B) The district director is satisfied States Public Health Service at the port- follows: that the alien did not intend to abandon of-entry, notify the master or agent of the arriving vessel or aircraft of his or § 233.3 Aliens in immediate and his or her refugee status at the time of continuous transit. her intention to effect such detention by departure from the United States; * * * * * (C) The alien did not engage in any serving on the master or agent Form I– activities while outside the United 259 in accordance with § 235.3(a) of this (b) Signatory lines. A list of currently States that would be inconsistent with chapter. effective Form I–426 agreements is continued refugee or asylum status; and maintained by the Service’s § 234.1 and § 234.2 [Redesignated as Headquarters Office of Inspections and (D) The alien has been outside the §§ 232.1 and 232.2 respectively] is available upon written request. United States for less than 1 year since 75. Sections 234.1 and 234.2 are his or her last departure. redesignated as §§ 232.1 and 232.2 81. Newly redesignated § 233.4 is * * * * * respectively. revised to read as follows: 71. In § 223.3, paragraph (d)(2) is revised to read as follows: § 233.4 Preinspection outside the United PART 234Ð[REMOVED] States. § 223.3 Validity and effect on admissibility. 76. Part 234 is removed. (a) Form I–425 agreements. A * * * * * 77. The following parts are transportation line bringing applicants (d) * * * redesignated as set forth in the table for admission to the United States (2) Refugee travel document. (i) below: through preinspection sites outside the Inspection and immigration status. United States shall enter into an Old part New part Upon arrival in the United States, an agreement on Form I–425. Such an alien who presents a valid unexpired agreement shall be negotiated directly refugee travel document, or who has Part 238 ...... Part 233. Part 239 ...... Part 234. by the Service’s Headquarters Office of been allowed to file an application for Inspections and the head office of the a refugee travel document and this transportation line. application has been approved under PART 233ÐCONTRACTS WITH 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 78. The authority citation for newly his or her admissibility under the Act. transportation agreements on Form I– redesignated part 233 continues to read An alien shall be accorded the 425 is maintained by the Service’s as 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. 82. Newly redesignated § 233.5 is § 223.2(b)(2)(ii)) which will be endorsed 79. Newly redesignated § 233.1 is revised to read as follows: in such document, unless he or she is revised to read as follows: no longer eligible therefor, or he or she § 233.5 Aliens entering Guam pursuant to § 233.1 Contracts. section 14 of Public Law 99±396, ``Omnibus applies for and is found eligible for Territories Act.'' some other immigration status. The contracts with transportation (ii) Inadmissibility. If an alien who lines referred to in section 233(c) of the A transportation line bringing aliens presents a valid unexpired refugee Act may be entered into by the to Guam under the visa waiver travel document appears to the Executive Associate Commissioner for provisions of § 212.1(e) of this chapter examining immigration officer to be Programs, or by an immigration officer shall enter into an agreement on Form inadmissible, he or she shall be referred designated by the Executive Associate I–760. Such agreements shall be for proceedings under section 240 of the Commissioner for Programs on behalf of negotiated directly by the Service’s Act. Section 235(c) of the Act shall not the government and shall be Headquarters and head offices of the be applicable. documented on Form I–420. The transportation lines. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 477

PART 234ÐDESIGNATION OF PORTS provisions of the Act, the alien shall be of the Act and shall be removed under OF ENTRY FOR ALIENS ARRIVING BY so informed and his or her entry shall section 235(a)(2) of the Act as if CIVIL AIRCRAFT not be recorded. encountered upon arrival. A stowaway (d) Alien applicants for admission. (1) who has been removed pursuant to 83. The heading for newly Each alien seeking admission at a section 235(a)(2) of the Act and this redesignated part 234 is revised as set United States port-of-entry shall present section shall be considered to have been forth above. whatever documents are required and formally removed from the United 84. The authority citation for newly shall establish to the satisfaction of the States for all purposes under the Act. redesignated part 234 is revised to read immigration officer that he or she is not (e) U.S. citizens, lawful permanent as follows: subject to removal under the residents of the United States, Canadian Authority: 8 U.S.C. 1103, 1221, 1229; 8 immigration laws, Executive Orders, or nationals, and other residents of CFR part 2. Presidential Proclamations and is Canada having a common nationality entitled under all of the applicable with Canadians, entering the United § 234.3 [Amended] provisions of the immigration laws and States by small craft. Upon being 85. Newly redesignated § 234.3 is this chapter to enter the United States. inspected by an immigration officer and amended by removing the last sentence. A person claiming to have been lawfully found eligible for admission as a citizen admitted for permanent residence must of the United States, or found eligible PART 235ÐINSPECTION OF PERSONS establish that fact to the satisfaction of for admission as a lawful permanent APPLYING FOR ADMISSION the inspecting immigration officer and resident of the United States, or in the 86. The authority citation for part 235 must present proper documents in case of a Canadian national or other is revised to read as follows: accordance with § 211.1 of this chapter. resident of Canada having a common (2) An alien present in the United nationality with Canadians being found Authority: 8 U.S.C. 1101, 1103, 1182, 1183, States who has not been admitted or eligible for admission as a temporary 1201, 1224, 1225, 1226, 1227, 1228, 1252; 8 paroled or an alien who seeks entry at CFR part 2. visitor for pleasure, a person who other than an open, designated port-of- desires to enter the United States from 87. Section 235.1 is revised to read as entry, except as otherwise permitted in Canada in a small pleasure craft of less follows: this section, is subject to the provisions than 5 net tons without merchandise of section 212(a) of the Act and to § 235.1 Scope of examination. may be issued, upon application and removal under section 235(b) or 240 of payment of a fee prescribed under (a) General. Application to lawfully the Act. § 103.7(b)(1) of this chapter, Form I–68, enter the United States shall be made in (3) An alien who is brought to the Canadian Border Boat Landing Card, person to an immigration officer at a United States, whether or not to a and may thereafter enter the United U.S. port-of-entry when the port is open designated port-of-entry and regardless States along with the immediate shore for inspection, or as otherwise of the means of transportation, after area of the United States on the body of designated in this section. having been interdicted in international water designated on the Form I–68 from (b) U.S. citizens. A person claiming or United States waters, is considered time to time for the duration of that U.S. citizenship must establish that fact an applicant for admission and shall be navigation season without further to the examining officer’s satisfaction examined under section 235(b) of the inspection. In the case of a Canadian and must present a U.S. passport if such Act. national or other resident of Canada passport is required under the (4) An alien stowaway is not an having a common nationality with provisions of 22 CFR part 53. If such applicant for admission and may not be Canadians, the Form I–68 shall be valid applicant for admission fails to satisfy admitted to the United States. A only for the purpose of visits not to the examining immigration officer that stowaway shall be removed from the exceed 72 hours and only if the alien he or she is a U.S. citizen, he or she United States under section 235(a)(2) of will remain in nearby shopping areas, shall thereafter be inspected as an alien. the Act. The provisions of section 240 nearby residential neighborhoods, or (c) Alien members of United States of the Act are not applicable to other similar areas adjacent to the Armed Forces and members of a force stowaways, nor is the stowaway entitled immediate shore area of the United of a NATO country. Any alien member to further hearing or review of the States. If the bearer of Form I–68 seeks of the United States Armed Forces who removal, except that an alien stowaway to enter the United States by means is in the uniform of, or bears documents who indicates an intention to apply for other than small craft of less than 5 net identifying him or her as a member of, asylum shall be referred to an asylum tons without merchandise, or if he or such Armed Forces, and who is coming officer for a determination of credible she seeks to enter the United States for to or departing from the United States fear of persecution in accordance with other purposes, or if he or she is an under official orders or permit of such section 235(b)(1)(B) of the Act and alien, other than a lawful permanent Armed Forces is not subject to the § 208.30 of this chapter. An alien resident alien of the United States, and removal provisions of the Act. A stowaway who is determined to have a intends to proceed beyond an area member of the force of a NATO country credible fear of persecution shall have adjacent to the immediate shore area of signatory to Article III of the Status of his or her asylum application the United States, or remains in the Forces Agreement seeking to enter the adjudicated in accordance with United States longer than 72 hours, he United States under official orders is § 208.2(b)(2) of this chapter. Nothing in or she must apply for admission at a exempt from the control provision of the this section shall be construed to require United States port of entry. Act. Any alien who is a member of 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 478 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules admission. A Form I–94 issued at a land overcome a finding of inadmissibility (b) Expedited removal. (1) border port-of-entry shall be considered by: Determination of inadmissibility. An issued for multiple entries unless (1) Posting a bond under section 213 alien who is arriving in the United specifically annotated for a limited of the Act; States or other alien as designated number of entries. A Form I–94 issued (2) Seeking and obtaining a waiver pursuant to paragraph (b)(2)(ii) of this at other than a land border port-of-entry, under section 211 or 212(d)(3) or (4) of section who is determined to be unless issued for multiple entries, must the Act; or inadmissible under section 212(a)(6)(C) be surrendered upon departure from the (3) Presenting additional evidence of or 212(a)(7) of the Act (except an alien United States in accordance with the admissibility not available at the time for whom documentary requirements instructions on the form. Form I–94 is and place of the initial examination. are waived under § 211.1(b)(3) or § 212.1 not required by: (c) Such deferral shall be of this chapter), shall be ordered (i) Any nonimmigrant alien described accomplished pursuant to the removed from the United States in in § 212.1(a) of this chapter and 22 CFR provisions of section 212(d)(5) of the accordance with section 235(b)(1) of the 41.33 who is admitted as a visitor for Act for the period of time necessary to Act. The examining immigration officer business or pleasure or admitted to complete the deferred inspection. shall serve the alien with Form I–860, proceed in direct transit through the (d) Refusal of a district director to Notice and Order of Expedited Removal. United States; authorize admission under section 213 Except as otherwise provided in this (ii) Any nonimmigrant alien residing of the Act, or to grant an application for section, such alien is not entitled to a in the British Virgin Islands who was the benefits of section 211 or section hearing before an immigration judge in admitted only to the U.S. Virgin Islands 212(d)(3) or (4) of the Act, shall be proceedings conducted pursuant to as a visitor for business or pleasure without prejudice to the renewal of such section 240 of the Act, or to an appeal under § 212.1(b) of this chapter; application or the authorizing of such of the expedited removal order by the admission by the immigration judge (iii) Any Mexican national in Board of Immigration appeals. An alien without additional fee. possession of a valid nonresident alien whose inadmissibility is being (e) Whenever an alien on arrival is Mexican border crossing card, or a valid considered under this section or who found or believed to be suffering from Mexican passport and a multiple-entry has been ordered removed pursuant to a disability that renders it impractical to nonimmigrant visa issued under section this section shall be detained pending proceed with the examination under the 101(a)(15)(B) of the Act, who is determination and removal, except that Act, the examination of such alien, admitted as a nonimmigrant visitor at a parole of such alien, in accordance with members of his or her family concerning Mexican border port of entry for a section 212(d)(5) of the Act, may be whose admissibility it is necessary to permitted only when the Attorney period not to exceed 72 hours to visit have such alien testify, and any General determines, in the exercise of within 25 miles of the border; accompanying aliens whose protection discretion, that parole is required to (iv) Bearers of Mexican diplomatic or or guardianship will be required should meet a medical emergency or is official passports described in § 212.1(c– such alien be found inadmissible shall necessary for a legitimate law 1) of this chapter. be deferred for such time and under enforcement objective. (2) Paroled aliens. Any alien paroled such conditions as the district director (2) Applicability. The expedited into the United States under section in whose district the port is located removal provisions shall apply to the 212(d)(5) of the Act, including any alien imposes. following classes of aliens who are crewmember, shall be issued a 89. Section 235.3 is revised to read as determined to be inadmissible under completely executed Form I–94, follows: section 212(a)(6)(C) or (7) of the Act: endorsed with the parole stamp. (i) Arriving aliens, as defined in 88. Section 235.2 is revised to read as § 235.3 Inadmissible aliens and expedited § 1.1(q) of this chapter, except for follows: removal. citizens of Cuba arriving at a United (a) Detention prior to inspection. All States port-of-entry by aircraft; § 235.2 Deferred inspection. persons arriving at a port-of-entry in the (ii) As specifically designated by the (a) A district director may, in his or United States by vessel or aircraft shall Commissioner, aliens who arrive in, her discretion, defer the inspection of be detained aboard the vessel or at the attempt to enter, or have entered the any vessel or aircraft, or of any alien, to airport of arrival by the owner, agent, United States without having been another Service office or port-of-entry. master, commanding officer, person in admitted or paroled following Any alien coming to a United States charge, purser, or consignee of such inspection by an immigration officer at port from a foreign port, from an vessel or aircraft until admitted or a designated port-of-entry, and who outlying possession of the United States, otherwise permitted to land by an have not established to the satisfaction from Guam, Puerto Rico, or the Virgin officer of the Service. Notice or order to of the immigration officer that they have Islands of the United States, or from detain shall not be required. The owner, been physically present in the United another port of the United States at agent, master, commanding officer, States continuously for the 2-year which examination under this part was person in charge, purser, or consignee of period immediately prior to the date of deferred, shall be regarded as an such vessel or aircraft shall deliver determination of inadmissibility. The applicant for admission at that onward every alien requiring examination to an Commissioner shall have the sole port. immigration officer for inspection or to discretion to apply the provisions of (b) An examining immigration officer a medical officer for examination. The section 235(b)(1) of the Act, at any time, may defer further examination and refer Service will not be liable for any to any class of aliens described in this the alien’s case to the district director expenses related to such detention or section. The Commissioner’s having jurisdiction over the place where presentation or for any expenses of a designation shall become effective upon the alien is seeking admission, or over passenger who has not been presented publication of a notice in the Federal the place of the alien’s residence or for inspection and for whom a Register. However, if the Commissioner destination in the United States, if the determination has not been made determines, in the exercise of discretion, examining immigration officer has concerning admissibility by a Service that the delay caused by publication reason to believe that the alien can officer. would adversely affect the interests of Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 479 the United States or the effective or her choosing, at no expense to the required documents. If the alien appears enforcement of the immigration laws, Government and without unreasonably to be inadmissible, the immigration the Commissioner’s designation shall delaying the process. Pending the officer may initiate removal proceedings become effective immediately upon credible fear determination, the alien against the alien under section 240 of issuance, and shall be published in the shall be detained. Parole of such alien the Act. Federal Register as soon as practicable in accordance with section 212(d)(5) of (iii) Claimed refugees and asylees. If thereafter. When these provisions are in the Act may be permitted only when the a check of Service records or other effect for aliens who enter without Attorney General determines, in the means indicates that the alien has been inspection, the burden of proof rests exercise of discretion, that parole is granted refugee status or asylee status, with the alien to affirmatively show that required to meet a medical emergency and such status has not been terminated he or she has the required continuous or is necessary for a legitimate law in deportation, exclusion, or removal physical presence in the United States. enforcement objective. proceedings, the immigration officer Any absence from the United States (5) Claim to lawful permanent shall not order the alien removed shall serve to break the period of resident, refugee, or asylee status. (i) pursuant to section 235(b)(1) of the Act. continuous physical presence. An alien Verification of status. If an applicant for If the alien is not in possession of a who was not inspected and admitted or admission who is subject to expedited valid, unexpired refugee travel paroled into the United States but who removal pursuant to section 235(b)(1) of document, the examining immigration establishes that he or she has been the Act claims to have been lawfully officer may accept an application for a continuously physically present in the admitted for permanent residence, refugee travel document in accordance United States for the 2-year period admitted as a refugee under section 207 with § 223.2(b)(2)(ii) of this chapter. If immediately prior to the date of of the Act, or granted asylum under accepted, the immigration officer shall determination of inadmissibility shall section 208 of the Act, the immigration readmit the refugee or asylee in be detained in accordance with section officer shall attempt to verify the alien’s accordance with § 223.3(d)(2)(i) of this 235(b)(2) of the Act for a proceeding claim. Such verification shall include a chapter. If the alien is determined not to under section 240 of the Act. check of all available Service data be eligible to file an application for a (3) Additional charges of systems and any other means available refugee travel document the inadmissibility. In the expedited to the officer. An alien whose claim to immigration officer may initiate removal removal process, the Service may not lawful permanent resident, refugee, or proceedings against the alien under charge an alien with any additional asylee status cannot be verified will be section 240 of this Act. grounds of inadmissibility other than advised of the penalties for perjury, and (iv) Review of order for claimed lawful section 212(a)(6)(C) or 212(a)(7) of the will be placed under oath or allowed to permanent residents, refugees, or Act. if an alien appears to be make a declaration as permitted under asylees. When an alien whose status has inadmissible under other grounds 28 U.S.C. 1746, concerning his or her not been verified but who is claiming contained in section 212(a) of the Act, lawful admission for permanent under oath or under penalty or perjury and if the Service wishes to pursue such residence, admission as a refugee under to be a lawful permanent resident, additional grounds of inadmissibility, section 207 of the Act, or grant of refugee, or asylee is ordered removed the alien shall be detained and referred asylum status under section 208 of the pursuant to section 235(b)(1) of the Act, for a removal hearing before an Act. Whenever practicable, a written the case will be referred to an immigration judge pursuant to sections statement shall be taken from the alien. immigration judge for review of the 235(b)(2) and 240 of the Act for inquiry The immigration officer shall issue an expedited removal order under section into all charges. Once the alien is in expedited order of removal under 235(b)(1)(C) of the Act and removal proceedings under section 240 section 235(b)(1)(A)(i) of the Act and § 235.6(a)(2)(ii). If the immigration judge of the Act, the Service is not precluded refer the alien to the immigration judge determines that the alien has never been from lodging additional charges against for review of the order in accordance admitted as a lawful permanent resident the alien. Nothing in this paragraph with paragraph (b)(5)(iv) of this section or as a refugee, or granted asylum status, shall preclude the Service from and § 235.6(a)(2)(ii). the order issued by the immigration pursuing such additional grounds of (ii) Claimed lawful permanent officer will be affirmed and the Service inadmissibility against the alien in any residents. If the claim to lawful will remove the alien. There is no subsequent attempt to reenter the permanent resident status is verified, appeal from the decision of the United States, provided the additional and such status has not been terminated immigration judge. If the immigration grounds of inadmissibility still exist. in exclusion, deportation, or removal judge determines that the alien was (4) Claim of asylum or fear of proceedings, the examining immigration once so admitted as a lawful permanent persecution. If an alien subject to the officer shall not order the alien removed resident or as a refugee, or was granted expedited removal provisions indicates pursuant to section 235(b)(1) of the Act. asylum status, and such status has not an intention to apply for asylum, a fear The examining immigration officer will been terminated by final administrative of persecution, or a fear of return to his determine in accordance with section action, the immigration judge will or her country, the inspecting officer 101(a)(13)(C) of the Act whether the terminate proceedings and vacate the shall, before proceeding further with the alien is considered to be making an expedited removal order. The Service case, detain the alien and refer him or application for admission. If the alien is may initiate removal proceedings her for an interview by an asylum determined to be seeking admission and against such an alien in proceedings officer in accordance with § 208.30 of the alien is otherwise admissible, except under section 240 of the Act. During this chapter to determine if the alien has that he or she is not in possession of the removal proceedings, the immigration a credible fear of persecution. The required documentation, a discretionary judge may consider any waivers, referring officer shall provide waiver of documentary requirements exceptions, or requests for relief for information to the alien concerning the may be considered in accordance with which the alien is eligible. nature and purpose of the credible fear section 211(b) of the Act and (6) Opportunity for the alien to interview and shall advise the alien that § 211.1(b)(3) of this chapter or the establish that he or she was admitted or he or she may, prior to the interview, alien’s inspection may be deferred to an paroled into the United States. If the consult with a person or person of his onward office for presentation of the Commissioner determines that the 480 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules expedited removal provisions of section under sections 211(b) or 212(d) of the apply when an inadmissible alien is 235(b)(1) of the Act shall apply to any Act, to waive the documentary detained for removal proceedings. or all aliens described in paragraph requirements for arriving aliens. 90. Section 235.4 is revised to read as (b)(2)(ii) of this section, such alien will (10) Applicant for admission under follows: be given a reasonable opportunity to section 217 of the Act. The provisions establish to the satisfaction of the § 235.4 Withdrawal of application for of § 235.3(b) do not apply to an admission. examining immigration officer that he or applicant for admission under section she was admitted or paroled into the 217 of the Act. (a) The Attorney General may, in his or her discretion, permit any alien United States following inspection at a (c) Other inadmissible aliens. Any applicant for admission to withdraw his port-of-entry. The alien will be allowed alien applicant for admission, as or her application for admission in lieu to present evidence or provide sufficient included in sections 101(a)(13) and of removal proceedings under section information to support the claim. Such 235(a)(1) of the Act and § 235.1(d) of 240 of the Act or expedited removal evidence may consist of documentation this chapter, who appears to the under section 235(b)(1) of the Act. The in the possession of the alien, the inspecting officer to be inadmissible, alien’s decision to withdraw his or her Service, or a third party. The examining but who does not fall within paragraph application for admission must be made immigration officer will consider all (b) of this section, may be detained, voluntarily, but nothing in this section such evidence and information, make paroled, or paroled for deferred shall be construed as to give an alien the further inquiry if necessary, and will inspection by the inspecting officer. In right to withdraw his or her application attempt to verify the alien’s status determining whether or not an alien for admission. Permission to withdraw through a check of all available Service shall be detained, paroled, or paroled an application for admission should not data systems. The burden rests with the for deferred inspection, the inspecting normally be granted unless the alien alien to satisfy the examining officer shall consider the likelihood that intends and is able to depart the United immigration officer of the claim of the alien will abscond or pose a security States immediately. An alien permitted lawful admission or parole. If the alien risk. to withdraw his or her application for establishes that he or she was lawfully (d) Service custody. The Service will admission shall normally remain in admitted or paroled, the case will be assume custody of any alien subject to carrier or Service custody pending examined to determine if grounds of detention under paragraph (b) or (c) of departure, unless the district director deportability under section 237(a) of the this section. In its discretion, the determines that parole of the alien is Act are applicable, or if paroled, Service may require any alien who warranted in accordance with § 212.5(a) whether such parole has been, or should appears inadmissible and who arrives at of this chapter. be, terminated, and whether the alien is a land border port-of-entry from Canada inadmissible under section 212(a) of the (b) An immigration judge may allow or Mexico, to remain in that country only an arriving alien to withdraw an Act. An alien who cannot satisfy the while awaiting a removal hearing. Such examining officer that he or she was application for admission. Once the alien shall be considered detained for a issue of inadmissibility or deportability lawfully admitted or paroled will be proceeding within the meaning of ordered removed pursuant to section has been resolved, permission to section 235(b) of the Act and may be withdraw an application for admission 235(b)(1) of the Act. ordered removed in absentia by an (7) Review of expedited removal should ordinarily be granted only with immigration judge if the alien fails to orders. Any removal order entered by an the concurrence of the Service. An appear for the hearing. examining immigration officer pursuant immigration judge shall not allow an to section 235(b)(1) of the Act must be (e) Detention in non-Service facility. alien to withdraw an application for reviewed and approved by the Whenever an alien is taken into Service admission unless the alien, in addition appropriate supervisor before the order custody and detained at a facility other to demonstrating that he or she is considered final. Such supervisory than at a Service Processing Center, the possesses both the intent and the means review shall not be delegated below the public or private entities contracted to to depart immediately from the United level of the second line supervisor, or a perform such service shall have been States, establishes that factors directly person acting in that capacity. The approved for such use by the Service’s relating to the issue of inadmissibility supervisory review and approval of an Jail Inspection Program or shall be indicate that the granting of the expedited removal order for an alien performing such service under contract withdrawal would be in the interest of described in section 235(b)(1)(A)(iii) of in compliance with the Standard justice. In addition, during the the Act must include a review of any Statement of Work for Contract pendency of an appeal from the order of claim of lawful admission or parole and Detention Facilities. Both programs are removal, permission to withdraw an any evidence or information presented administered by the Detention and application for admission must be to support such a claim, prior to Deportation section having jurisdiction obtained from the immigration judge or approval of the order. In such cases, the over the alien’s place of detention. the Board. supervisor may request additional Under no circumstances shall an alien 91. Section 235.5 is revised to read as information from any source and may be detained in facilities not meeting the follows: require further interview of the alien. four mandatory criteria for usage. These (8) Removal procedures relating to are: § 235.5 Preinspection. expedited removal. An alien ordered (1) 24-Hour supervision, (a) In United States territories and removed pursuant to section 235(b)(1) of (2) Conformance with safety and possessions. In the case of any aircraft the Act shall be removed from the emergency codes, proceeding from Guam, Puerto Rico, or United States in accordance with (3) Food Service, and the United States Virgin Islands section 241(c) of the Act and 8 CFR part (4) Availability of emergency medical destined directly and without touching 241. care. at a foreign port or place, to any other (9) Waivers of documentary (f) Privilege of communication. The of such places, or to one of the States requirements. Nothing in this section mandatory notification requirements of of the United States or the District of limits the discretionary authority of the consular and diplomatic officers Columbia, the examination of the Attorney General, including authority pursuant to § 236.1(e) of this chapter passengers and crew required by the Act Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 481 may be made prior to the departure of vacates the expedited removal order Act, the immigration officer or the aircraft, and in such event, final issued by the asylum officer pursuant to immigration judge shall order the alien determination of admissibility shall be section 235(b)(1)(B)(iii) of the Act. removed and report the action promptly made immediately prior to such (iv) If an immigration officer verifies to the district director who has departure. The examination shall be that an alien subject to expedited administrative jurisdiction over the conducted in accordance with sections removal under section 235(b)(1) of the place where the alien has arrived or 232, 235, and 240 of the Act and 8 CFR Act has been admitted as a lawful where the hearing is being held. The parts 235 and 240. If it appears to the permanent resident refugee, or asylee, or immigration officer shall, if possible, examining immigration officer that any upon review pursuant to take a brief sworn question-and-answer person in the United States being § 235.3(b)(5)(iv) an immigration judge statement from the alien, and the alien examined under this section is prima determines that the alien was once so shall be notified by personal service of facie removable from the United States, admitted, provided that such status has Form I–147, Notice of Temporary further action with respect to his or her not been terminated by final Inadmissibility, of the action taken and examination shall be deferred and administrative action, and the Service the right to submit a written statement further proceedings regarding initiates removal proceedings against and additional information for removability conducted as provided in the alien under section 240 of the Act. consideration by the Attorney General. section 240 of the Act and 8 CFR part (2) Referral by Form I–863, Notice of The district director shall forward the 240. When the foregoing inspection Referral to Immigration Judge. An report to the regional director for further procedure is applied to any aircraft, immigration officer will sign and deliver action as provided in paragraph (b) of persons examined and found admissible a Form I–863 to an alien in the this section. shall be placed aboard the aircraft, or following cases: (b) Action by regional director. (1) In kept at the airport separate and apart (i) If, in accordance with section accordance with section 235(c)(2)(B) of from the general public until they are 235(b)(1)(B)(iii)(III) of the Act, an the Act, the regional director may deny permitted to board the aircraft. No other asylum officer determines that an alien any further inquiry or hearing by an person shall be permitted to depart on does not have a credible fear of immigration judge and order the alien such aircraft until and unless he or she persecution, and the alien requests a removed by personal service of Form I– is found to be admissible as provided in review of that determination by an 148, Notice of Permanent this section. immigration judge; or Inadmissibility, or issue any other order (b) In foreign territory. In the case of (ii) If, in accordance with section disposing of the case that the regional any aircraft, vessel, or train proceeding 235(b)(1)(C) of the Act, an immigration director considers appropriate. directly, without stopping, from a port officer refers an expedited removal (2) If the regional director concludes or place in foreign territory to a port-of- order entered on an alien claiming to be that the case does not meet the criteria entry in the United States, the a lawful permanent resident, refugee, or contained in section 235(c)(2)(B) of the examination and inspection of asylee for whom the officer could not Act, the regional director may direct passengers and crew required by the Act verify such status to an immigration that: and final determination of admissibility judge for review of the order. (i) An immigration officer shall may be made prior to such departure at (iii) If an immigration officer refers an conduct a further examination of the the port or place in the foreign territory applicant described in § 208.2(b)(1) of alien, concerning the alien’s and shall have the same effect under the this chapter to an immigration judge for admissibility; or, (ii) The alien’s case be referred to an Act as though made at the destined port- an asylum hearing under § 208.2(b)(2) of immigration judge for a hearing, or for of-entry in the United States. this chapter. the continuation of any prior hearing. 92. Section 235.6 is revised to read as (b) Certification for mental condition; follows: (3) The regional director’s decision medical appeal. An alien certified shall be in writing and shall be signed § 235.6 Referral to immigration judge. under sections 212(a)(1) and 232(b) of by the regional director. Unless the the Act shall be advised by the (a) Notice. (1) Referral by Form I–862, written decision contains confidential examining immigration officer that he or Notice to Appear. An immigration information, the disclosure of which she may appeal to a board of medical officer or asylum officer will sign and would be prejudicial to the public examiners of the United States Public deliver a Form I–862 to an alien in the interest, safety, or security of the United Health Service pursuant to section 232 following cases: States, the written decision shall be (i) If, in accordance with the of the Act. If such appeal is taken, the served on the alien. If the written provisions of section 235(b)(2)(A) of the district director shall arrange for the decision contains such confidential Act, the examining immigration officer convening of the medical board. information, the alien shall be served detains an alien for a proceeding before § 235.7 [Removed] with a separate written order showing an immigration judge under section 240 93. Section 235.7 is removed. the disposition of the case, but with the of the Act; or confidential information deleted. (ii) If, in accordance with section § 235.13 [Redesignated as § 235.7] (c) Finality of decision. The regional 235(b)(1)(B)(ii) of the Act, an asylum 94. Section 235.13 is redesignated as director’s decision under this section is officer determines that an alien is § 235.7. final when it is served upon the alien in expedited removal proceedings has a 95. Section 235.8 is revised to read as accordance with paragraph (b)(3) of this credible fear of persecution and refers follows: section. There is no administrative the case to the immigration judge for appeal from the regional director’s consideration of the application for § 235.8 Inadmissibility on security and decision. asylum. related grounds. (d) Hearing by immigration judge. If (iii) If, in accordance with section (a) Report. When an immigration the regional director directs that an 235(b)(1)(B)(iii)(III) of the Act, the officer or an immigration judge suspects alien subject to removal under this immigration judge determines that an that an arriving alien appears to be section be given a hearing or further alien in expedited removal proceedings inadmissible under section 212(a)(3)(A) hearing before an immigration judge, the has a credible fear of persecution and (other than clause (ii), (B), or (C) of the hearing and all further proceedings in 482 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules the matter shall be conducted in by the Service but valid existing cards immigration officer that he or she is an accordance with the provisions of will continue to be acceptable alien and consents to the voidance of section 240 of the Act and other documentation of U.S. citizenship. the card. Upon signing the statement the applicable sections of the Act to the Possession of the identification card is card must be surrendered to the same extent as though the alien had not mandatory for any purpose. A U.S. immigration officer. been referred to an immigration judge Citizen Identification Card remains the (4) Surrender of void card. A void by the examining immigration officer. In property of the United States. Because U.S. Citizen Identification Card which a case where the immigration judge the identification card is no longer has not been returned to the Service ordered the alien removed pursuant to issued, there are no provisions for must be surrendered without delay to an paragraph (a) of this section, the Service replacements cards. immigration officer or to the issuing shall refer the case back to the (b) Surrender and voidance. (1) office of the Service. immigration judge and proceedings Institution of proceeding under section (c) U.S. Citizen Identification Card shall be automatically reopened upon 240 or 342 of the Act. A U.S. Citizen previously issued on Form I–179. A receipt of the notice of referral. If Identification Card must be surrendered valid Form I–179, U.S. Citizen confidential information, not previously provisionally to a Service office upon Identification Card, continues to be considered in the matter, is presented notification by the district director that valid subject to the provisions of this supporting the inadmissibility of the a proceeding under section 240 or 342 section. alien under section 212(a)(3)(A) (other of the Act is being instituted against the 99. Section 235.11 is revised to read than clause (ii)), (B), or (C) of the Act, person to whom the card was issued. as follows: the disclosure of which, in the The card shall be returned to the person if the final order in the proceeding does § 235.11 Admission of conditional discretion of the immigration judge, permanent residents. may be prejudicial to the public interest, not result in voiding the card under this safety, or security, the immigration paragraph. A U.S. Citizen Identification (a) General. (1) Conditional residence judge may again order the alien Card is automatically void if the person based on family relationship. An alien removed under the authority of section to whom it was issued is determined to seeking admission to the United States 235(c) of the Act and further action shall be an alien in a proceeding conducted with an immigrant visa as the spouse or be taken as provided in this section. under section 240 of the Act, or if a son or daughter of a United States (e) Nonapplicability. The provisions certificate, document, or record relating citizen or lawful permanent resident of this section shall apply only to to that person is canceled under section shall be examined to determine whether arriving aliens, as defined in § 1.1(q) of 342 of the Act. the conditions of section 216 of the Act this chapter. Aliens present in the (2) Investigation of validity of apply. If so, the alien shall be admitted United States who have not been identification card. A U.S. Citizen conditionally for a period of 2 years. At admitted or paroled may be subject to Identification Card must be surrendered the time of admission, the alien shall be proceedings under Title V of the Act. provisionally upon notification by a notified that the alien and his or her district director that the validity of the petitioning spouse must file a Form I– § 235.9 [Removed] card is being investigated. The card 751, Petition to Remove the Conditions 96. Section 235.9 is removed. shall be returned to the person who on Residence, within the 90-day period surrendered it if the investigation does immediately preceding the second § 235.12 [Redesignated as § 235.9 and anniversary of the alien’s admission for revised] not result in a determination adverse to his or her claim to be a United States permanent residence. 97. Section 235.12 is redesignated as citizen. When an investigation results in (2) Conditional residence based on § 235.9 and is revised to read as follows: a tentative determination adverse to the entrepreneurship. An alien seeking § 235.9 Northern Marianas identification applicant’s claim to be a United States admission to the United States with an card. citizen, the applicant shall be notified immigrant visa as an alien entrepreneur During the two-year period that ended by certified mail directed to his or her (as defined in section 216A(f)(1) of the July 1, 1990, the Service issued last known address. The notification Act) or the spouse or unmarried minor Northern Marianas Identification Cards shall inform the applicant of the basis child of an alien entrepreneur shall be to aliens who acquired United States for the determination and of the admitted conditionally for a period of 2 citizenship when the Covenant to intention of the district director to years. At the time of admission, the Establish a Commonwealth of the declare the card void unless within 30 alien shall be notified that the principal Northern Mariana Islands in Political days the applicant objects and demands alien (entrepreneur) must file a Form I– Union with the United States entered an opportunity to see and rebut the 829, Petition by Entrepreneur to Remove into force on November 3, 1986. These adverse evidence. Any rebuttal, Conditions, within the 90-day period cards remain valid as evidence of explanation, or evidence presented by immediately preceding the second United States citizenship. Although the the applicant must be included in the anniversary of the alien’s admission for Service no longer issues these cards, a record of proceeding. The determination permanent residence. United States citizen to whom a card whether the applicant is a United States (b) Correction of endorsement on was issued may file Form I–777, citizen must be based on the entire immigrant visa. If the alien is subject to Application for Issuance or record and the applicant shall be the provisions of section 216 of the Act, Replacement of Northern Marianas notified of the determination. If it is but the classification endorsed on the Card, to obtain replacement of a lost, determined that the applicant is not a immigrant visa does not so indicate, the stolen, or mutilated Northern Marianas United States citizen, the applicant shall endorsement shall be corrected and the Identification Card. be notified of the reasons, and the card alien shall be admitted as a lawful 98. Section 235.10 is revised to read deemed void. There is no appeal from permanent resident on a conditional as follows: the district director’s decision. basis, if otherwise admissible. (3) Admission of alienage. A U.S. Conversely, if the alien is not subject to § 235.10 U.S. Citizen Identification Card. Citizen Identification Card is void if the the provisions of section 216 of the Act, (a) General. Form I–197, U.S. Citizen person to whom it was issued admits in but the visa classification endorsed on Identification Card, is no longer issued a statement signed before an the immigrant visa indicates that the Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 483 alien is subject thereto (e.g., if the 236.14 Filing. detained, unless a breach has occurred, second anniversary of the marriage 236.15 Voluntary departure and eligibility any outstanding bond shall be revoked upon which the immigrant visa is based for employment. and canceled. occurred after the issuance of the visa 236.16 Travel outside the United States. (4) The provisions of § 103.6 of this 236.17 Eligibility for Federal financial and prior to the alien’s application for assistance programs. chapter shall apply to any bonds admission) the endorsement on the visa 236.18 Termination of Family Unity authorized. Subject to the provisions of shall be corrected and the alien shall be Program benefits. this section, the provisions of § 3.19 of admitted as a lawful permanent resident Authority: 8 U.S.C. 1103, 1182, 1224, 1225, this chapter shall govern availability to without conditions, if otherwise 1226, 1227, 1362; 8 CFR part 2. the respondent of recourse to other admissible. administrative authority for release from (c) Expired conditional permanent Subpart AÐDetention of Aliens Prior custody. resident status. The lawful permanent to Order of Removal (5) An immigration judge may not resident alien status of a conditional exercise authority provided in this resident automatically terminates if the § 236.1 Apprehension, custody, and detention. section and the review process conditional basis of such status is not described in paragraph (d) of this removed by the Service through (a) Detainers. The issuance of a section shall not apply with respect to: detainer under this section shall be approval of a Form I–751, Petition to (i) Inadmissible aliens in removal governed by the provisions of § 287.7 of Remove the Conditions on Residence or, proceedings, this chapter. in the case of an alien entrepreneur (as (ii) Arriving aliens, as described in defined in section 216A(f)(1) of the Act), (b) Warrant of arrest. (1) In general. At the time of issuance of the notice to § 1.1(q) of this chapter, including aliens Form I–829, Petition by Entrepreneur to paroled pursuant to section 212(d)(5) of Remove Conditions. Therefore, an alien appear, or at any time thereafter and up to the time removal proceedings are the Act, in removal proceedings, who is seeking admission as a returning (iii) Aliens described in section resident subsequent to the second completed, the respondent may be arrested and taken into custody under 237(a)(4) of the Act, or anniversary of the date on which (iv) After the expiration of section conditional residence was obtained the authority of Form I–200, Warrant of Arrest. A warrant of arrest may be 303(b)(3) of Pub. L. 104–208, aliens (except as provided in § 211.1(b)(1) of described in section 236(c)(1) of the Act. this chapter) and whose conditional issued only by those immigration (d) Appeals from custody decisions. basis of such residence has not been officers listed in § 287.5(e)(2) of this (1) Application to immigration judge. removed pursuant to section 216(c) or chapter and may be served only by After an initial custody determination 216A(c) of the Act, whichever is those immigration officers listed in by the district director, including the applicable, shall be placed under § 287.5(e)(3) of this chapter. setting of a bond, the respondent may at removal proceedings. However, in a (2) If, after the issuance of a warrant any time before an order under 8 CFR case where conditional residence was of arrest, a determination is made not to part 240 becomes final, request based on a marriage, removal serve it, any officer authorized to issue proceedings may be terminated and the such warrant may authorize its amelioration of the conditions under alien may be admitted as a returning cancellation. which he or she may be released. Prior resident if the required Form I–751 is (c) Custody issues and release to such final order, and except as filed jointly, or by the alien alone (if procedures. (1) After the expiration of otherwise provided in this chapter, the appropriate), and approved by the the Transition Period Custody Rules immigration judge is authorized to Service. In the case of an alien under Pub. L. 104–208, no alien exercise the authority in section 236 of entrepreneur, removal proceedings may described in section 236(c)(1) of the Act the Act to detain the alien in custody, be terminated and the alien admitted as shall be released from custody during release the alien, and determine the a returning resident if the required Form removal proceedings except pursuant to amount of bond, if any, under which the I–829 is filed by the alien entrepreneur section 236(c)(2) of the Act. respondent may be released, as and approved by the Service. (2) Any officer authorized to issue a provided in § 3.19 of this chapter. If the 100–101. Part 236 is revised to read as warrant of arrest may, in the officer’s alien has been released from custody, an follows: discretion, release an alien not application for amelioration of the terms described in section 236(c)(1) of the Act, of release must be filed within 7 days of PART 236ÐAPPREHENSION AND under the conditions at section 236 (a) release. Once a removal order becomes DETENTION OF INADMISSIBLE AND (2) and (3) of the Act; provided that the administratively final, determinations DEPORTABLE ALIENS; REMOVAL OF alien must demonstrate to the regarding custody and bond are made by ALIENS ORDERED REMOVED satisfaction of the officer that such the district director. release would not pose a danger to (2) Application to the district director. Subpart AÐDetention of Aliens Prior to (i) After expiration of the 7-day period Order of Removal property or persons, and that the alien is likely to appear for any future in paragraph (d)(1) of this section, the Sec. proceeding. respondent may request review by the 236.1 Apprehension, custody, and (3) When an alien who, having been district director of the conditions of his detention. 236.2 Confined aliens, incompetents, and arrested and taken into custody, has or her release. minors. been released, such release may be (ii) After an order becomes 236.3 Detention and release of juveniles. revoked at any time in the discretion of administratively final, the respondent 236.4 Removal of S–5, S–6, and S–7 the district director, acting district may request review by the district nonimmigrants. director, deputy district director, director of the conditions of his or her 236.5 Fingerprints and photographs. assistant district director for release. Subpart BÐFamily Unity Program investigations, assistant district director (3) Appeal to the Board of 236.10 Description of program. for detention and deportation, or officer Immigration Appeals. An appeal 236.11 Definitions. in charge (except foreign), in which relating to bond and custody 236.12 Eligibility. event the alien may be taken into determinations may be filed within 10 236.13 Ineligible aliens. physical custody and detained. If days of the decision, to the Board of 484 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

Immigration Appeals in the following Dominica served in the manner prescribed in circumstances: Fiji § 239.1 of this chapter upon the person (i) In accordance with § 3.38 of this Gambia, The or persons specified by § 103.5a(c) of chapter, the alien or the Service may Georgia this chapter. appeal the decision of an immigration Ghana (b) Service custody and cost of judge pursuant to paragraph (d)(1) of Grenada maintenance. An alien confined this section. Guyana because of physical or mental disability (ii) The alien may appeal from the Hungary in an institution or hospital shall not be district director’s decision under Jamaica accepted into physical custody by the paragraph (d)(2)(i) of this section. Kazakhstan Service until an order of removal has (iii) The alien may appeal from the Kiribati been entered and the Service is ready to district director’s decision under Kuwait remove the alien. When such an alien is paragraph (d)(2)(ii) of this section, Kyrgyzstan an inmate of a public or private except that no appeal shall be allowed Malaysia institution at the time of the when the Service notifies the alien that Malta commencement of the removal it is ready to execute an order of Mauritius proceedings, expenses for the deportation and takes the alien into Moldova maintenance of the alien shall not be custody for that purpose. Mongolia incurred by the Government until he or (4) Effect of filing an appeal. The Nigeria she is taken into physical custody by the filing of an appeal from a determination Philippines Service. of an immigration judge or district Poland director under this paragraph shall not Romania § 236.3 Detention and release of juveniles. operate to delay compliance with the Russian Federation (a) Juveniles. A juvenile is defined as St. Kitts/Nevis order, nor stay the administrative an alien under the age of 18 years. St. Lucia proceedings or removal. (b) Release. Juveniles for whom bond St. Vincent/Grenadines (e) Privilege of communication. Every has been posted, for whom parole has Seychelles detained alien shall be notified that he been authorized, or who have been Sierra Leone or she may communicate with the ordered released on recognizance, shall Singapore consular or diplomatic officers of the be released pursuant to the following Slovak Republic guidelines: country of his or her nationality in the South Korea United States. Existing treaties with the (1) Juveniles shall be released, in Tajikistan order of preference, to: countries listed below require Tanzania immediate communication with (i) A parent; Tonga (ii) Legal guardian; or appropriate consular or diplomatic Trinidad/Tobago (iii) An adult relative (brother, sister, officers whenever nationals of the Turkmenistan aunt, uncle, grandparent) who is not following countries are detained in Tuvalu presently in Service detention, unless a removal proceedings, whether or not Ukraine determination is made that the requested by the alien and even if the United Kingdom 3 detention of such juvenile is required to alien requests that no communication be U.S.S.R.4 secure his or her timely appearance undertaken in his or her behalf. When Uzbekistan before the Service or the Immigration notifying consular or diplomatic Zambia Court or to ensure the juvenile’s safety officials, Service officers shall not reveal (f) Notification to Executive Office for or that of others. In cases where the the fact that any detained alien has Immigration Review of change in parent, legal guardian, or adult relative applied for asylum or withholding of custody status. The Service shall notify resides at a location distant from where removal. the Immigration Court having the juvenile is detained, he or she may Albania 1 administrative control over the Record secure release at a Service office located Antigua of Proceeding of any change in custody near the parent, legal guardian, or adult Armenia location or of release from, or relative. Azerbaijan subsequent taking into, Service custody (2) If an individual specified in Bahamas of a respondent/applicant pursuant to paragraphs (b)(1) (i) through (iii) of this Barbados § 3.19(g) of this chapter. section cannot be located to accept Belarus custody of a juvenile, and the juvenile Belize § 236.2 Confined aliens, incompetents, has identified a parent, legal guardian, and minors. Brunei or adult relative in Service detention, Bulgaria (a) Service. If the respondent is simultaneous release of the juvenile and China (People’s Republic of) 2 confined, or if he or she is an the parent, legal guardian, or adult Costa Rica incompetent, or a minor under the age relative shall be evaluated on a Cyprus of 14, the notice to appear, and the discretionary case-by-case basis. Czech Republic warrant of arrest, if issued, shall be (3) In cases where the parent or legal guardian is in Service detention or 1 Arrangements with these countries provide that 3 British dependencies are also covered by this outside the United States, the juvenile U.S. authorities shall notify responsible agreement. They are: Anguilla, British Virgin representatives within 72 hours of the arrest or Islands, Hong Kong, Bermuda, Montserrat, and the may be released to such person as is detention of one of their nationals. Turks and Caicos Islands. Their residents carry designated by the parent or legal 2 When Taiwan nationals (who carry ‘‘Republic of British passports. guardian in a sworn affidavit, executed China’’ passports) are detained, notification should 4 All U.S.S.R. successor states are covered by this before an immigration officer or be made to the nearest office of the Taiwan agreement. They are: Armenia, Azerbaijan, Belarus, Economic and Cultural Representative’s Office, the Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian consular officer, as capable and willing unofficial entity representing Taiwan’s interests in Federation, Tajikistan, Turkmenistan, Ukraine, and to care for the juvenile’s well-being. the United States. Uzbekistan. Such person must execute an agreement Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 485 to care for the juvenile and to ensure the immigration judge before a (2) A determination to remove such a juvenile’s presence at all future determination is made as to the merits deportable alien shall be based on one proceedings before the Service or an of the request for relief. or more of the grounds of deportability immigration judge. (g) Voluntary departure. Each listed in section 237 of the Act based on (4) In unusual and compelling juvenile, apprehended in the immediate conduct committed after, or conduct or circumstances and in the discretion of vicinity of the border, who resides a condition not disclosed to the Service the district director or chief patrol agent, permanently in Mexico or Canada, shall prior to, the alien’s classification as an a juvenile may be released to an adult, be informed, prior to presentation of the S nonimmigrant under section other than those identified in voluntary departure form or being 101(a)(15)(S) of the Act, or for a paragraphs (b)(1) (i) through (iii) of this allowed to withdraw his or her violation of, or failure to adhere to, the section, who executes an agreement to application for admission, that he or she particular terms and conditions of status care for the juvenile’s well-being and to may make a telephone call to a parent, in S nonimmigrant classification. ensure the juvenile’s presence at all close relative, a friend, or to an (c) Removal procedures. (1) A district future proceedings before the Service or organization found on the free legal director who determines to remove an an immigration judge. services list. A juvenile who does not alien witness or informant in S (c) Juvenile coordinator. The case of a reside in Mexico or Canada who is nonimmigrant classification shall notify juvenile for whom detention is apprehended shall be provided access to the Commissioner, the Assistant determined to be necessary should be a telephone and must in fact Attorney General, Criminal Division, referred to the ‘‘Juvenile Coordinator,’’ communicate either with a parent, adult and the relevant law enforcement whose responsibilities should include, relative, friend, or with an organization agency in writing to that effect. The but not be limited to, finding suitable found on the free legal services list prior Assistant Attorney General, Criminal placement of the juvenile in a facility to presentation of the voluntary Division, shall concur in or object to designated for the occupancy of departure form. If such juvenile, of his that decision. Unless the Assistant juveniles. These may include juvenile or her own volition, asks to contact a Attorney General, Criminal Division, facilities contracted by the Service, state consular officer, and does in fact make objects within 7 days, he or she shall be or local juvenile facilities, or other such contact, the requirements of this deemed to have concurred in the appropriate agencies authorized to decision. In the event of an objection by section are satisfied. accommodate juveniles by the laws of the Assistant Attorney General, the state or locality. (h) Notice and request for disposition. Criminal Division, the matter will be (d) Detention. In the case of a juvenile When a juvenile alien is apprehended, expeditiously referred to the Deputy for whom detention is determined to be he or she must be given a Form I–770, Attorney General for a final resolution. necessary, for such interim period of Notice of Rights and Disposition. If the In no circumstances shall the alien or time as is required to locate suitable juvenile is less than 14 years of age or the relevant law enforcement agency placement for the juvenile, whether unable to understand the notice, the have a right of appeal from any decision such placement is under paragraph (b) notice shall be read and explained to the to remove. or (c) of this section, the juvenile may juvenile in a language he or she (2) A district director who has be temporarily held by Service understands. In the event a juvenile provided notice as set forth in paragraph authorities or placed in any Service who has requested a hearing pursuant to (c)(1) of this section and who has been detention facility having separate the notice subsequently decides to advised by the Commissioner that the accommodations for juveniles. accept voluntary departure or is allowed Assistant Attorney General, Criminal (e) Refusal of release. If a parent of a to withdraw his or her application for Division, has not objected shall issue a juvenile detained by the Service can be admission, a new Form I–770 shall be Warrant of Removal. The alien shall located, and is otherwise suitable to given to, and signed by the juvenile. immediately be arrested and taken into receive custody of the juvenile, and the custody by the district director initiating juvenile indicates a refusal to be § 236.4 Removal of S±5, S±6, and S±7 nonimmigrants. the removal. An alien classified under released to his or her parent, the the provisions of section 101(a)(15)(S) of parent(s) shall be notified of the (a) Condition of classification. As a the Act who is determined, pursuant to juvenile’s refusal to be released to the condition of classification and a warrant issued by a district director, parent(s), and shall be afforded an continued stay in classification to be deportable from the United States opportunity to present their views to the pursuant to section 101(a)(15)(S) of the shall be removed from the United States district director, chief patrol agent, or Act, nonimmigrants in S classification to his or her country of nationality or immigration judge before a custody must have executed Form I–854, Part B, last residence. The agency that determination is made. Inter-agency Alien Witness and requested the alien’s presence in the (f) Notice to parent of application for Informant Record, certifying that they United States shall ensure departure relief. If a juvenile seeks release from have knowingly waived their right to a from the United States and so inform detention, voluntary departure, parole, removal hearing and right to contest, the district director in whose or any form of relief from removal, other than on the basis of an application jurisdiction the alien has last resided. where it appears that the grant of such for withholding of deportation or The district director, if necessary, shall relief may effectively terminate some removal, any removal action, including oversee the alien’s departure from the interest inherent in the parent-child detention pending deportation or United States and, in any event, shall relationship and/or the juvenile’s rights removal, instituted before lawful notify the Commissioner of the alien’s and interests are adverse with those of permanent resident status is obtained. departure. the parent, and the parent is presently (b) Determination of deportability. (1) (d) Withholding of removal. An alien residing in the United States, the parent A determination to remove a deportable classified pursuant to section shall be given notice of the juvenile’s alien classified pursuant to section 101(a)(15)(S) of the Act who applies for application for relief, and shall be 101(a)(15)(S) of the Act shall be made by withholding of removal shall have 10 afforded an opportunity to present his the district director having jurisdiction days from the date the Warrant of or her views and assert his or her over the place where the alien is Removal is served upon the alien to file interest to the district director or located. an application for such relief with the 486 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules district director initiating the removal Eligible immigrant means a qualified § 236.13 Ineligible aliens. order. The procedures contained in immigrant who is the spouse or The following categories of aliens are §§ 208.2 and 208.16 of this chapter shall unmarried child of a legalized alien. ineligible for benefits under the Family apply to such an alien who applies for Legalized alien means an alien who: Unity Program: withholding of removal. (a) An alien who is deportable under (1) Is a temporary or permanent (e) Inadmissibility. An alien who any paragraph in section 237(a) of the resident under section 210 or 245A of applies for admission under the Act, except paragraphs (1)(A), (1)(B), the Act; or provisions of section 101(a)(15)(S) of the (1)(C), and (3)(A); provided that an alien Act who is determined by an (2) Is a permanent resident under who is deportable under section immigration officer not to be eligible for section 202 of the Immigration Reform 237(a)(1)(A) of such Act is also admission under that section or to be and Control Act of 1986 (Cuban/Haitian ineligible for benefits under the Family inadmissible to the United States under Adjustment). Unity Program if deportability is based one or more of the grounds of upon a ground of inadmissibility inadmissibility listed in section 212 of § 236.12 Eligibility. described in section 212(a) (2) or (3) of the Act and which have not been (a) General. An alien who is not a the Act; previously waived by the Commissioner lawful permanent resident is eligible to (b) An alien who has been convicted will be taken into custody. The district apply for benefits under the Family of a felony or three or more director having jurisdiction over the Unity Program if he or she establishes: misdemeanors in the United States; or port-of-entry shall follow the (1) That he or she entered the United (c) An alien described in section notification procedures specified in 241(b)(3)(B) of the Act. paragraph (c)(1) of this section. A States before May 5, 1988 (in the case district director who has provided such of a relationship to a legalized alien § 236.14 Filing. notice and who has been advised by the described in subsection (b)(2)(B) or (a) General. An application for Commissioner that the Assistant (b)(2)(C) of section 301 of IMMACT 90), voluntary departure under the Family Attorney General, Criminal Division, or as of December 1, 1988 (in the case Unity Program must be filed at the has not objected shall remove the alien of a relationship to a legalized alien service center having jurisdiction over without further hearing. An alien may described in subsection (b)(2)(A) of the alien’s place of residence. A Form I– not contest such removal, other than by section 301 of IMMACT 90), and has 817, Application for Voluntary applying for withholding of removal. been continuously residing in the Departure under the Family Unity United States since that date; and Program, must be filed with the correct § 236.5 Fingerprints and photographs. (2) That on May 5, 1988 (in the case fee required in § 103.7(b)(1) of this Every alien 14 years of age or older of a relationship to a legalized alien chapter and the required supporting against whom proceedings based on described in subsection (b)(2)(B) or documentation. A separate application deportability under section 237 of the (b)(2)(C) of section 301 of IMMACT 90), with appropriate fee and documentation Act are commenced under this part by or as of December 1, 1988 (in the case must be filed for each person claiming service of a notice to appear shall be of a relationship to a legalized alien eligibility. fingerprinted and photographed. Such described in subsection (b)(2)(A) of (b) Decision. The service center fingerprints and photographs shall be section 301 of IMMACT 90), he or she director has sole jurisdiction to made available to Federal, State, and was the spouse or unmarried child of a adjudicate an application for benefits local law enforcement agencies upon legalized alien, and that he or she has under the Family Unity Program. The request to the district director or chief been eligible continuously since that director will provide the applicant with patrol agent having jurisdiction over the time for family-sponsored second specific reasons for any decision to deny alien’s record. Any such alien, preference immigrant status under an application. Denial of an application regardless of his or her age, shall be section 203(a)(2) of the Act based on the may not be appealed. An applicant who photographed and/or fingerprinted if same relationship. believes that the grounds for denial have required by any immigration officer been overcome may submit another authorized to issue a notice to appear. (b) Legalization application pending application with the appropriate fee and Every alien 14 years of age or older who as of May 5, 1988 or December 1, 1988. documentation. is found to be inadmissible to the An alien whose legalization application (c) Referral of denied cases for United States and ordered removed by was filed on or before May 5, 1988 (in consideration of issuance of notice to an immigration judge shall be the case of a relationship to a legalized appear. If an application is denied, the fingerprinted, unless during the alien described in subsection (b)(2)(B) or case will be referred to the district preceding year he or she has been (b)(2)(C) of section 301 of IMMACT 90), director with jurisdiction over the fingerprinted at an American consular or as of December 1, 1988 (in the case alien’s place of residence for office. of a relationship to a legalized alien consideration of whether to issue a described in subsection (b)(2)(A) of §§ 236.6±236.9 [Reserved] notice to appear. After an initial denial, section 301 of IMMACT 90), but not an applicant’s case will not be referred Subpart BÐFamily Unity Program approved until after that date will be for issuance of a notice to appear until treated as having been a legalized alien 90 days from the date of the initial § 236.10 Description of program. as of May 5, 1988 (in the case of a denial, to allow the alien the The family unity program implements relationship to a legalized alien opportunity to file a new Form I–817 the provisions of section 301 of the described in subsection (b)(2)(B) or application in order to attempt to Immigration Act of 1990, Pub. L. 101– (b)(2)(C) of section 301 of IMMACT 90), overcome the basis of the denial. 649. This Act is referred to in this or as of December 1, 1988 (in the case However, if the applicant is found not section as ‘‘IMMACT 90’’. of a relationship to a legalized alien to be eligible for benefits under described in subsection (b)(2)(A) of § 236.13(b), the Service reserves the § 236.11 Definitions. section 301 of IMMACT 90), for right to issue a notice to appear at any In this subpart, the term: purposes of the Family Unity Program. time after the initial denial. Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 487

§ 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; the provisions of section 240B of the Act continuing eligibility since the date of or inadmissibility at the time of entry and 8 CFR part 240. the prior approval. other than inadmissibility pursuant to (b) Children of legalized aliens. section 212(a)(2) or 212(a)(3) of the Act, Children of legalized aliens residing in § 236.16 Travel outside the United States. regardless of whether the facts giving the United States, who were born during An alien granted Family Unity rise to such ground occurred before or an authorized absence from the United Program benefits who intends to travel after the benefits were granted; or States of mothers who are currently outside the United States temporarily (5) A qualifying relationship to a residing in the United States under must apply for advance authorization legalized alien no longer exists. voluntary departure pursuant to the using Form I–131, Application for (b) Notice procedure. Notice of intent Family Unity Program, may be granted Travel Document. The authority to grant to terminate and of the grounds thereof voluntary departure under section 301 an application for advance authorization shall be served pursuant to the of IMMACT 90 for a period of 2 years. for an alien granted Family Unity provisions of § 103.5a of this chapter. (c) Duration of voluntary departure. Program benefits rests soley with the The alien shall be given 30 days to An alien whose application for benefits district director. An alien who is respond to the notice and may submit under the Family Unity Program is granted advance authorization and to the Service additional evidence in approved will receive voluntary returns to the United States in rebuttal. Any final decision of departure for 2 years, commencing with accordance with such authorization, termination shall also be served the date of approval of the application. and who is found not to be inadmissible pursuant to the provisions of § 103.5a of Voluntary departure under this section under section 212(a) (2) or (3) of the Act, this chapter. Nothing in this section shall be considered effective from the shall be inspected and admitted in the shall preclude the Service from date on which the application was same immigration status as the alien commencing exclusion or deportation properly filed. had at the time of departure, and shall proceedings prior to termination of (d) Employment authorization. An be provided the remainder of the Family Unity Program benefits. alien granted benefits under the Family voluntary departure period previously (c) Effect of termination. Termination Unity Program is authorized to be granted under the Family Unity of benefits under the Family Unity employed in the United States and may Program. Program, other than as a result of a final apply for an employment authorization order of removal, shall render the alien document on Form I–765, Application § 236.17 Eligibility for Federal financial amenable to removal proceedings under for Employment Authorization. The assistance programs. section 240 of the Act. If benefits are application may be filed concurrently An alien granted Family Unity terminated, the period of voluntary with Form I–817. The application must Program benefits based on a relationship departure under this section is also be accompanied by the correct fee to a legalized alien as defined in terminated. required by § 103.7(b)(1) of this chapter. § 236.11 is ineligible for public welfare The validity period of the employment assistance in the same manner and for PART 237Ð[REMOVED AND authorization will coincide with the the same period as the legalized alien RESERVED] period of voluntary departure. who is ineligible for such assistance 102. Part 237 is removed and (e) Extension of voluntary departure. under section 245A(h) or 210(f) of the reserved. An application for an extension of Act, respectively. voluntary departure under the Family 103. Part 238 is added to read as Unity Program must be filed by the alien § 236.18 Termination of Family Unity follows: on Form I–817 along with the correct fee Program benefits. PART 238ÐEXPEDITED REMOVAL OF required in § 103.7(b)(1) of this chapter (a) Grounds of termination. The AGGRAVATED FELONS and the required supporting Service may terminate benefits under documentation. The submission of a the Family Unity Program whenever the § 238.1 Proceedings under section 238(b) copy of the previous approval notice necessity for the termination comes to of the Act. will assist in shortening the processing the attention of the Service. Such (a) Definitions. As used in this part: time. An extension may be granted if the grounds will exist in situations Deciding Service officer means a alien continues to be eligible for benefits including, but not limited to, those in district director, chief patrol agent, or under the Family Unity Program. which: another immigration officer designated However, an extension may not be (1) A determination is made that by a district director or chief patrol approved if the legalized alien is a Family Unity Program benefits were agent, who is not the same person as the lawful permanent resident, and a acquired as the result of fraud or willful issuing Service officer. petition for family-sponsored immigrant misrepresentation of a material fact; Issuing Service officer means any status has not been filed in behalf of the (2) The beneficiary commits an act or Service officer listed in § 239.1 of this applicant. In such case the Service will acts which render him or her chapter as authorized to issue notices to notify the alien of the reason for the inadmissible as an immigrant or who appear. denial and afford him or her the are ineligible for benefits under the (b) Preliminary consideration and opportunity to file another Form I–817 Family Unity Program; Notice of Intent to Issue a Final 488 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

Administrative Deportation Order; limitations, and conditions of section with paragraph (c)(1) of this section. If commencement of proceedings. (1) 241 of the Act. the alien’s final response is a rebuttal of Basis of Service charge. An issuing (iii) The Service must determine that the allegations, such a final response Service officer shall cause to be served the person served with the Notice of should be accompanied by affidavit(s), upon an alien a Form I–851, Notice of Intent is the person named on the documentary information, or other Intent to Issue a Final Administrative Notice. specific evidence supporting the Deportation Order (Notice of Intent), if (iv) The Service shall provide the challenge. the officer is satisfied that there is alien with a list of available free legal (d) Determination by deciding Service sufficient evidence, based upon services programs qualified under 8 CFR officer. (1) No response submitted or questioning of the alien by an part 3 and organizations recognized concession of deportability. If the immigration officer and upon any other pursuant to 8 CFR part 292, located deciding Service officer does not receive evidence obtained, to support a finding within the district or sector where the a timely response and the evidence in that the individual: Notice of Intent is issued. the record of processing establishes (i) Is an alien; (v) The Service must either provide deportability by clear, convincing, and (ii) Has not been lawfully admitted for the alien with a written translation of unequivocal evidence, or if the alien permanent residence, or has conditional the Notice of Intent or explain the concedes deportability, then the contents of the Notice of Intent to the permanent resident status under section deciding Service officer shall issue and alien in the alien’s native language or in 216 of the Act; cause to be served upon the alien a a language that the alien understands. Final Administrative Removal Order (iii) Has been convicted (as defined in (c) Alien’s response. (1) Time for section 101(a)(48) of the Act and as that states the reasons for the response. The alien will have 10 deportation decision. The alien may, in demonstrated by any of the documents calendar days from service of the Notice or records listed in § 3.41 of this writing, knowingly and voluntarily of Intent, or 13 calendar days if service waive the 14-day waiting period before chapter) of an aggravated felony and is by mail, to file a response to the such conviction has become final; and execution of the final order of removal Notice of Intent. In the response, the provided in a paragraph (f) of this (iv) Is deportable under section alien may: designate his or her choice of section. 237(a)(2)(A)(iii) of the Act, including an country for removal; submit a written (2) Response submitted. (i) alien who has neither been admitted nor response rebutting the allegations Insufficient rebuttal; no genuine issue of paroled, but who is conclusively supporting the charge and/or requesting material fact. If the alien timely submits presumed deportable under section the opportunity to review the a rebuttal to the allegations, but the 237(a)(2)(A)(iii) by operation of section Government’s evidence; and/or request deciding Service officer finds that 238(c) of the Act (‘‘Presumption of in writing an extension of time for deportability is established by clear, Deportability’’). response, stating the specific reasons convincing, and unequivocal evidence (2) Notice. (i) Removal proceedings why such an extension is necessary. in the record of proceeding, the under section 238(b) of the Act shall Alternatively, the alien may, in writing, deciding Service officer shall issue and commence upon personal service of the choose to accept immediate issuance of cause to be served upon the alien a Notice of Intent upon the alien, as a Final Administrative Removal Order. Final Administrative Removal Order prescribed by §§ 103.5a(a)(2) and The deciding Service officer may extend that states the reasons for the decision 103.5a(c)(2) of this chapter. The Notice the time for response for good cause of deportability. of Intent shall set forth the preliminary shown. A request for extension of time (ii) Additional evidence required. (A) determinations and inform the alien of for response will not automatically If the deciding Service officer finds that the Service’s intention to issue a Form extend the period for the response. The the record of proceeding, including the I–851A, Final Administrative Removal alien will be permitted to file a response alien’s timely rebuttal, raises a genuine Order, without a hearing before an outside the prescribed period only if the issue of material fact regarding the immigration judge. This Notice shall deciding Service officer permits it. The preliminary findings, the deciding constitute the charging document. The alien must send the response to the Service officer may either obtain Notice of Intent shall include allegations deciding Service officer at the address additional evidence from any source, of fact and conclusions of law. It shall provided in the Notice of Intent. including the alien, or cause to be advise that the alien: has the privilege (2) Nature of rebuttal or request to issued a notice to appear to initiate of being represented, at no expense to review evidence. (i) If an alien chooses removal proceedings under section 240 the Government, by counsel of the to rebut the allegations contained in the of the Act. The deciding Service officer alien’s choosing, as long as counsel is Notice of Intent, the alien’s written may also obtain additional evidence authorized to practice in deportation response must indicate which finding(s) from any source, including the alien, if proceedings; may inspect the evidence are being challenged and should be the deciding Service officer deems that supporting the Notice of Intent; and may accompanied by affidavit(s), such additional evidence may aid the rebut the charges within 10 calendar documentary information, or other officer in the rendering of a decision. days after service of such Notice (or 13 specific evidence supporting the (B) If the deciding Service officer calendar days if service of the Notice challenge. considers additional evidence from a was by mail). (ii) If an alien’s written response source other than the alien, that (ii) The Notice of Intent also shall requests the opportunity to review the evidence shall be made a part of the advise the alien that he or she may Government’s evidence, the Service record of proceeding, and shall be designate in writing, within the rebuttal shall serve the alien with a copy of the provided to the alien. If the alien elects period, the country to which he or she evidence in the record of proceeding to submit a response to such additional chooses to be deported in accordance upon which the Service is relying to evidence, such response must be filed with section 241 of the Act, in the event support the charge. The alien may, with the Service within 10 calendar that a Final Administrative Removal within 10 calendar days following days of service of the additional Order is issued, and that the Service service of the Government’s evidence evidence (or 13 calendar days if service will honor such designation only to the (13 calendar days if service is by mail), is by mail). If the deciding Service extent permitted under the terms, furnish a final response in accordance officer finds, after considering all Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 489 additional evidence, that deportability decision of the Service concerning (8) Deputy assistant district directors is established by clear, convincing, and custody or bond shall not be for examinations; unequivocal evidence in the record of administratively appealable during (9) Officers in charge (except foreign); proceeding, the deciding Service officer proceedings initiated under section 238 (10) Assistant officers in charge shall issue and cause to be served upon of the Act and this part. (except foreign); the alien a Final Administrative (h) Record of proceeding. The Service (11) Chief patrol agents; Deportation Order that states the shall maintain a record of proceeding (12) Deputy chief patrol agents; reasons for the decision of deportability. for judicial review of the Final (13) Associate chief patrol agents; (iii) Conversion to proceedings under Administrative Removal Order sought (14) Assistant chief patrol agents; section 240 of the Act. If the deciding by any petition for review. The record (15) Patrol agents in charge; Service officer finds that the alien is not of proceeding shall include, but not (16) The Assistant Commissioner, amenable to removal under section 238 necessarily be limited to: the charging Investigations; of the Act, the deciding Service officer document (Notice of Intent); the Final (17) Service center directors; shall terminate the expedited Administrative Removal Order (18) Deputy center directors; proceedings under section 238 of the (including any supplemental (19) Assistant center directors for Act and shall, where appropriate, cause memorandum of decision); the alien’s examinations; to be issued a notice to appear for the response, if any; all evidence in support (20) Supervisory asylum officers; or purpose of initiating removal of the charge; and any admissible (21) Institutional Hearing Program proceedings before an immigration evidence, briefs, or documents directors. judge under section 240 of the Act. submitted by either party respecting (b) Service of notice to appear. (3) Termination of proceedings by deportability. The executed duplicate of Service of the notice to appear shall be deciding Service officer. Only the the Notice of Intent in the record of in accordance with section 239 of the deciding Service officer may terminate proceedings shall be retained as Act. proceedings under section 238 of the evidence that the individual upon § 239.2 Cancellation of notice to appear. Act, in accordance with this section. whom the notice for the proceeding was (e) Proceedings commenced under (a) Any officer authorized by served was, in fact, the alien named in section 240 of the Act. In any § 239.1(a) to issue a notice to appear the notice. proceeding commenced under section may cancel such notice prior to 240 of the Act which is based on Authority: 8 U.S.C. 1228; 8 CFR part 2. jurisdiction vesting with the deportability under section 237 of the 104. Part 239 is added to read as immigration judge pursuant to § 3.14 of Act, if it appears that the respondent follows: this chapter provided the officer is alien is subject to removal pursuant to satisfied that: section 238 of the Act, the immigration PART 239ÐINITIATION OF REMOVAL (1) The respondent is a national of the judge may, upon the Service’s request, PROCEEDINGS United States; terminate the case and, upon such (2) The respondent is not deportable termination, the Service may commence Sec. or inadmissable under immigration administrative proceedings under 239.1 Notice to appear. laws; section 238 of the Act. However, in the 239.2 Cancellation of notice to appear. (3) The respondent is deceased; 239.3 Effect of filing notice to appear. absence of any such request, the (4) The respondent is not in the immigration judge shall complete the Authority: 8 U.S.C. 1103, 1221, 1229; 8 United States; proceeding commenced under section CFR part 2. (5) The notice was issued for the 240 of the Act. § 239.1 Notice to appear. respondent’s failure to file a timely (f) Executing final removal order of petition as required by section 216(c) of deciding Service officer. (1) Time of (a) Commencement. Every removal the Act, but his or her failure to file a execution. Upon the issuance of a Final proceeding conducted under section timely petition was excused in Administrative Removal Order, the 240 of the Act to determine the accordance with section 216(d)(2)(B) of Service shall issue a Warrant of deportability or inadmissibility of an the Act; or Removal in accordance with § 241.2 of alien is commenced by the filing of a (6) The notice to appear was this chapter; such warrant shall be notice to appear with the Immigration improvidently issued. executed no sooner than 14 calendar Court. Any immigration officer (b) A notice to appear issued pursuant days after the date the Final performing an inspection of an arriving to section 235(b)(3) of the Act may be Administrative Removal Order is alien at a port-of-entry may issue a canceled under provisions in issued, unless the alien knowingly, notice to appear to such an alien. In paragraphs (a)(2) and (a)(6) of this voluntarily, and in writing waives the addition, the following officers, or section only by the issuing officer, 14-day period. officers acting in such capacity, may unless it is impracticable for the issuing (2) Country to which alien is to be issue a notice to appear: officer to cancel the notice. removed. The deciding Service officer (1) District directors (except foreign); (c) Motion to dismiss. After shall designate the country of removal (2) Deputy district directors (except commencement of proceedings pursuant in the manner prescribed by section 241 foreign); to § 3.14 of this chapter, any officer of the Act. (3) Assistant district directors for enumerated in paragraph (a) of this (g) Arrest and detention. At the time investigations; section may move for dismissal of the of issuance of a Notice of Intent or at (4) Deputy assistant district directors matter on the grounds set out under any time thereafter and up to the time for investigations; paragraph (a) of this section. Dismissal the alien becomes the subject of a (5) Assistant district directors for of the matter shall be without prejudice Warrant of Removal, the alien may be deportation; to the alien or the Service. arrested and taken into custody under (6) Deputy assistant district directors (d) Motion for remand. After the authority of a Warrant of Arrest for deportation; commencement of the hearing, any issued by an officer listed in (7) Assistant district directors for officer enumerated in paragraph (a) of § 287.5(e)(2) of this chapter. The examinations; this section may move for remand of the 490 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules matter to district jurisdiction on the Subpart BÐCancellation of Removal including orders of removal as provided ground that the foreign relations of the 240.20 Cancellation of removal and by section 240(c)(1)(A) of the Act; to United States are involved and require adjustment of status under section determine applications under sections further consideration. Remand of the 240A(a) and 240A(b) of the Act 208, 212(a)(2)(F), 212(a)(6)(F)(ii), matter shall be without prejudice to the Subpart CÐVoluntary Depature 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), alien or the Service. 212(g), 212(h), 212(i), 212(k), 240.25 Voluntary departure—authority of (e) Warrant of arrest. When a notice the Service. 237(a)(1)(E)(iii), 237(a)(1)(H), to appear is canceled or proceedings are 240.26 Voluntary departure—authority of 237(a)(3)(C)(ii), 240A(a) and (b), 240B, terminated under this section any the Executive Office for Immigration 245, and 249 of the Act; to order outstanding warrant of arrest is Review. withholding of removal pursuant to section 241(b)(3) of the Act; and to take canceled. Subpart DÐExclusion of aliens (for any other action consistent with (f) Termination of removal proceedings commenced prior to April 1, 1997) applicable law and regulations as may proceedings by immigration judge. An be appropriate. In determining cases immigration judge may terminate 240.30 Proceedings prior to April 1, 1997. 240.31 Authority of immigration judges. referred for further inquiry, immigration removal proceedings to permit the alien judges shall have the powers and to proceed to a final hearing on a 240.32 Hearing. 240.33 Applications for asylum or authority conferred upon them by the pending application or petition for withholding of deportation. Act and this chapter. Subject to any naturalization when the alien has 240.34 Renewal of application for specific limitation prescribed by the Act established prima facie eligibility for adjustment of status under section 245 of and this chapter, immigration judges naturalization and the matter involves the Act. shall also exercise the discretion and exceptionally appealing or 240.35 Decision of the immigration judge; authority conferred upon the Attorney humanitarian factors; in every other notice of the applicant. General by the Act as is appropriate and 240.36 Finality of order. case, the removal hearing shall be necessary for the disposition of such completely as promptly as possible 240.37 Appeals. 240.38 Fingerprinting of excluded aliens. cases. An immigration judge may certify notwithstanding the pendency of an 240.39 Reopening or reconsideration. his or her decision in any case under application for naturalization during section 240 of the Act to the Board of any state of the proceedings. Subpart EÐProceedings to determine Immigration Appeals when it involves deportability of aliens in the United States: § 239.3 Effect of filing notice to appear. Hearing and Appeal (for proceedings an unusually complex or novel question commenced prior to April 1, 1997) of law or fact. Nothing contained in this The filing of a notice to appear shall part shall be construed to diminish the have no effect in determining periods of 240.40 Proceedings commenced prior to authority conferred on immigration unlawful presence as defined in section April 1, 1997. 240.41 Immigration judges. judges under sections 101(b)(4) and 103 212(a)(9)(B) of the Act. 240.42 Representation by counsel. of the Act. 240.43 Incompetent respondents. (b) Withdrawal and substitution of §§ 240.1±240.20 Redesignated as §§ 244.3± immigration judges. The immigration 244.22] 240.44 Interpreter. 240.45 Postponement and adjournment of judge assigned to conduct the hearing 105. Sections 240.1 through 240.20 hearing. shall at any time withdraw if he or she are redesignated as §§ 244.3 through 240.46 Evidence. deems himself or herself disqualified. If 244.22. 240.47 Contents of record. an immigration judge becomes 240.48 Hearing. unavailable to complete his or her 106. Part 240 is revised to read as 240.49 Ancillary matters, applications. follows: 240.50 Decision of the immigration judge. duties, another immigration judge may 240.51 Notice of decision. be assigned to complete the case. The PART 240ÐPROCEEDINGS TO 240.52 Finality of order. new immigration judge shall familiarize DETERMINE REMOVABILITY OF 240.53 Appeals. himself or herself with the record in the ALIENS IN THE UNITED STATES 240.54 Proceedings under section 242(f) of case and shall state for the record that the Act. he or she has done so. Subpart AÐRemoval Proceedings Subpart FÐSuspension of deportation and (c) Conduct of hearing. The Sec. voluntary departure (for proceedings immigration judge shall receive and 240.1 Immigration judges. commenced prior to April 1, 1997) consider material and relevant evidence, 240.2 Attorney for the Service. 240.55 Proceedings commenced prior to rule upon objections, and otherwise 240.3 Representation by counsel. regulate the course of the hearing. 240.4 Incompetent respondents. April 1, 1997. 240.5 Interpreter. 240.56 Application. 240.57 Extension of time to depart. § 240.2 Attorney for the Service. 240.6 Postponement and adjournment of (a) Authority. The attorney for the hearing. Subpart GÐCivil penalties for failure to Service shall present on behalf of the 240.7 Evidence in removal proceedings depart [Reserved] under section 240 of the Act. government evidence material to the Authority: 8 U.S.C. 1103; 1182, 1186a, 240.8 Burdens of proof in removal issues of deportability or inadmissibility 1224, 1225, 1226, 1227, 1251, 1252 note, and any other issues that may require proceedings. 1252a, 1252b, 1362; 8 CFR part 2. 240.9 Contents of record. disposition by the immigration judge. 240.10 Hearing. Subpart AÐRemoval Proceedings The duties of the Service attorney 240.11 Ancillary matters, applications. include, but are not limited to, the 240.12 Decision of the immigration judge. § 240.1 Immigration judges. presentation of evidence and the 240.13 Notice of decision. (a) Authority: In any removal interrogation, examination, and cross- 240.14 Finality of order. 240.15 Appeals. proceeding pursuant to section 240 of examination of the respondent or other 240.16 Application of new procedures or the Act, the immigration judge shall witnesses. Nothing contained herein termination of proceedings in old have the authority to: determine diminishes the authority of an proceedings pursuant to section 309(c) of removability pursuant to section immigration judge to conduct Pub. L. 104–208. 240(a)(1) of the Act; to make decisions, proceedings under this part. The Service Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 491 attorney is authorized to appeal from a The immigration judge may receive in recorded verbatim except for statements decision of the immigration judge evidence any oral or written statement made off the record with the permission pursuant to § 3.38 of this chapter and to that is material and relevant to any issue of the immigration judge. In his or her move for reopening or reconsideration in the case previously made by the decision, the immigration judge may pursuant to § 3.23 of this chapter. respondent or any other person during exclude from the record any arguments (b) Assignment. In a removal any investigation, examination, hearing, made in connection with motions, proceeding, the Service shall assign an or trial. applications, requests, or objections, but attorney to each case within the (b) Testimony. Testimony of witnesses in such event the person affected may provisions of § 240.10(d), and to each appearing at the hearing shall be under submit a brief. case in which an unrepresented oath or affirmation administered by the § 240.10 Hearing. respondent is incompetent or is under immigration judge. 18 years of age, and is not accompanied (c) Depositions. The immigration (a) Opening. In a removal proceeding, by a guardian, relative, or friend. In a judge may order the taking of the immigration judge shall: case in which the removal proceeding depositions pursuant to § 3.35 of this (1) Advise the respondent of his or would result in an order of removal, the chapter. her right to representation, at no Service shall assign an attorney to each expense to the government, by counsel § 240.8 Burdens of proof in removal of his or her own choice authorized to case in which a respondent’s nationality proceedings. is in issue. A Service attorney shall be practice in the proceedings and require (a) Deportable aliens. A respondent assigned in every case in which the the respondent to state then and there charged with deportability shall be Commissioner approves the submission whether he or she desires found to be removable if the Service of non-record information under representation; proves by clear and convincing § 240.11(a)(3). In his or her discretion, (2) Advise the respondent of the evidence that the respondent is whenever he or she deems such availability of free legal services deportable. assignment necessary or advantageous, provided by organizations and attorneys (b) Arriving aliens. In proceedings the General Counsel may assign a qualified under 8 CFR part 3 and commenced upon a respondent’s arrival Service attorney to any other case at any organizations recognized pursuant to in the United States or after the stage of the proceeding. § 292.2 of this chapter, located in the revocation or expiration of parole, the district where the removal hearing is § 240.3 Representation by counsel. respondent must prove that he or she is being held; The respondent may be represented at clearly and beyond a doubt entitled to (3) Ascertain that the respondent has the hearing by an attorney or other be admitted to the United States and is received a list of such programs, and a representative qualified under 8 CFR not inadmissible as charged. copy of appeal rights; (c) Aliens present in the United States part 292. (4) Advise the respondent that he or without being admitted or paroled. In she will have a reasonable opportunity § 240.4 Incompetent respondents. the case of a respondent in the United to examine and object to the evidence When it is impracticable for the States without being admitted or against him or her, to present evidence respondent to be present at the hearing paroled, the Service must first establish in his or her own behalf and to cross- because of mental incompetency, the the alienage of the respondent. Once examine witnesses presented by the attorney, legal representative, legal alienage has been established, unless government (but respondent shall not be guardian, near relative, or friend who the respondent demonstrates by clear entitled to examine such national was served with a copy of the notice to and convincing evidence that he or she security information as the government appear shall be permitted to appear on is lawfully in the United States pursuant may proffer in opposition to the behalf of the respondent. If such a to a prior admission, the respondent respondent’s admission to the United person cannot reasonably be found or must prove that he or she is clearly and States or to an application by the fails or refuses to appear, the custodian beyond a doubt entitled to be admitted respondent for discretionary relief); of the respondent shall be requested to to the United States and is not (5) Place the respondent under oath; appear on behalf of the respondent. inadmissible as charged. (6) Read the factual allegations and (d) Relief from removal. The the charges in the notice to appear to the § 240.5 Interpreter. respondent shall have the burden of respondent and explain them in non- Any person acting as an interpreter in establishing that he or she is eligible for technical language; and a hearing before an immigration judge any requested benefit or privilege and (7) Enter the notice to appear as an under this part shall be sworn to that it should be granted in the exercise exhibit in the Record of Proceeding. interpret and translate accurately, of discretion. If the evidence indicates (b) Public access to hearings. Removal unless the interpreter is an employee of that one or more of the grounds for hearings shall be open to the public, the United States Government, in which mandatory denial of the application for except that the immigration judge may, event no such oath shall be required. relief may apply, the alien shall have in his or her discretion, close the burden of proving by a proceedings as provided in § 3.27 of this § 240.6 Postponement and adjournment of preponderance of the evidence that such chapter. hearing. grounds do not apply. (c) Pleading by respondent. The After the commencement of the immigration judge shall require the hearing, the immigration judge may § 240.9 Contents of record. respondent to plead to the notice to grant a reasonable adjournment either at The hearing before the immigration appear by stating whether he or she his or her own instance or, for good judge, including the testimony, exhibits, admits or denies the factual allegations cause shown, upon application by the applications, proffers, and requests, the and his or her removability under the respondent or the Service. immigration judge’s decision, and all charges contained therein. If the written orders, motions, appeals, briefs, respondent admits the factual § 240.7 Evidence in removal proceedings and other papers filed in the allegations and admits his or her under section 240 of the Act. proceedings shall constitute the record removability under the charges and the (a) Use of prior statements. in the case. The hearing shall be immigration judge is satisfied that no 492 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules issues of law or fact remain, the 241(b)(2)(C) of the Act applies, and shall the benefits enumerated in this chapter immigration judge may determine that afford him or her an opportunity then and shall afford the alien an opportunity removability as charged has been and there to make such designation. The to make application during the hearing. established by the admissions of the immigration judge shall then specify (3) In exercising discretionary power respondent. The immigration judge and state for the record the country, or when considering an application for shall not accept an admission of countries in the alternative, to which status as a permanent resident under removability from an unrepresented the alien’s removal will be directed this chapter, the immigration judge may respondent who is incompetent or pursuant to section 241(b) of the Act if consider and base the decision on under the age of 18 and is not the country of his or her designation information not contained in the record accompanied by an attorney or legal will not accept him or her into its and not made available for inspection representative, a near relative, legal territory, or fails to furnish timely notice by the alien, provided the guardian, or friend; nor from an officer of acceptance, or if the alien declines to Commissioner has determined that such of an institution in which a respondent designate a country. information is relevant and is classified is an inmate or patient. When, pursuant (g) In the event that the Service is under the applicable Executive Order as to this paragraph, the immigration judge unable to remove the alien to the requiring protection from unauthorized does not accept an admission of specified or alternative country or disclosure in the interest of national removability, he or she shall direct a countries, the Service may remove the security. Whenever the immigration hearing on the issues. alien to any other country as permitted judge believes that he or she can do so (d) Issues of removability. When by section 241(b) of the Act. while safeguarding both the information removability is not determined under and its source, the immigration judge the provisions of paragraph (b) of this § 240.11 Ancillary matters, applications. should inform the alien of the general section, the immigration judge shall (a) Creation of the status of an alien nature of the information in order that request the assignment of an assistant lawfully admitted for permanent the alien may have an opportunity to district counsel, and shall receive residence. (1) In a removal proceeding, offer opposing evidence. A decision evidence as to any unresolved issues, an alien may apply to the immigration based in whole or in part on such except that no further evidence need be judge for cancellation of removal under classified information shall state that received as to any facts admitted during section 240A of the Act, adjustment of the information is material to the the pleading. The alien shall provide a status under section 245 of the Act, decision. court certified copy of a Judicial adjustment of status under section 1 of (b) Voluntary departure. The alien Recommendation Against Deportation the Act of November 2, 1996 (as may apply to the immigration judge for (JRAD) to the immigration judge when modified by section 606 of Pub. L 104– voluntary departure in lieu of removal such recommendation will be the basis 132) or under section 101 or 104 of the pursuant to section 240B of the Act and of denying any charge(s) brought by the Act of October 28, 1977, or for the subpart C of this part. Service in the proceedings against the creation of a record of lawful admission (c) Applications for asylum and alien. No JRAD is effective against a for permanent residence under section withholding of removal. (1) If the alien charge of deportability under former 249 of the Act. The application shall be expresses fear of persecution or harm section 241(a)(11) of the Act or if the subject to the requirements of § 240.20, upon return to any of the countries to JRAD was granted on or after November and 8 CFR parts 245 and 249. The which the alien might be removed 29, 1990. approval of any application made to the pursuant to § 240.10(f), and the alien (e) Additional charges in removal immigration judge under section 245 of has not previously filed an application hearings. At any time during the the Act by an alien spouse (as defined for asylum or withholding of removal proceeding, additional or substituted in section 216(g)(1) of the Act) or by an that has been referred to the charges of inadmissibility and/or alien entrepreneur (as defined in section immigration judge by an asylum officer deportability and/or factual allegations 216A(f)(1) of the Act) shall result in the in accordance with § 208.14 of this may be lodged by the Service in writing. alien’s obtaining the status of lawful chapter, the immigration judge shall: The alien in removal proceedings shall permanent resident on a conditional (i) Advise the alien that he or she may be served with a copy of these basis in accordance with the provisions apply for asylum in the United States or additional charges and allegations. The of section 216 or 216A of the Act, withholding of removal of those immigration judge shall read the whichever is applicable. However, the countries; additional factual allegations and Petition to Remove the Conditions on (ii) Make available the appropriate charges to the and explain them to him Residence required by section 216(c) of application forms; and or her. The immigration judge shall the Act, or the Petition by Entrepreneur (iii) Advise the alien of the privilege advise the alien, if he or she is not to Remove Conditions required by of being represented by counsel at no represented by counsel, that the alien section 216A(c) of the Act shall be made expense to the government and of the may be so represented, and that he or to the director in accordance with 8 CFR consequences, pursuant to section she may be given a reasonable part 216. 208(d)(6) of the Act, of knowingly, filing continuance to respond to the (2) In conjunction with any a frivolous application for asylum. The additional factual allegations and application for creation of status of an immigration judge shall provide to the charges. Thereafter, the provision of alien lawfully admitted for permanent alien a list of persons who have § 240.6(b) relating to pleading shall residence made to an immigration indicated their availability to represent apply to the additional factual judge, if the alien is inadmissible under aliens in asylum proceedings on a pro allegations and charges. any provision of section 212(a) of the bono basis. (f) Country of removal.The Act, and believes that he or she meets (2) An application for asylum or immigration judge shall notify the alien the eligibility requirements for a waiver withholding of removal must be filed that if he or she is finally ordered of the ground of inadmissibility, he or with the Immigration Court, pursuant to removed, the country of removal will in she may apply to the immigration judge § 208.4(c) of this chapter. Upon receipt the first instance be directed pursuant to for such waiver. The immigration judge of an application that has not been section 241(b) of the Act to the country shall inform the alien of his or her referred by an asylum officer, the designated by the alien, unless section apparent eligibility to apply for any of Immigration Court shall forward a copy Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 493 to the Department of State pursuant to information shall state whether such (b) Summary decision. § 208.11 of this chapter and shall information is material to the decision. Notwithstanding the provisions of calendar the case for a hearing. The (4) The decision of an immigration paragraph (a) of this section, in any case reply, if any, from the Department of judge to grant or deny asylum or where inadmissibility or deportability is State, unless classified under the withholding of removal shall be determined on the pleadings pursuant applicable Executive Order, shall be communicated to the alien and to the to § 240.10(b) and the respondent does given to both the alien and to the assistant district counsel. An adverse not make an application under § 240.11, assistant district counsel representing decision shall state why asylum or the alien is statutorily ineligible for the government. withholding of removal was denied. relief, or the respondent applies for (d) Application for relief under (3) Applications for asylum and voluntary departure only and the withholding of removal so filed will be sections 237(a)(1)(H) and 237(a)(1)(E)(iii) of the Act. The immigration judge grants the decided by the immigration judge application, the immigration judge may pursuant to the requirements and respondent may apply to the immigration judge for relief from enter a summary decision or, if standards established in 8 CFR part 208 voluntary departure is granted, a of this chapter after an evidentiary removal under sections 237(a)(1)(H) and 237(a)(1)(E)(iii) of the Act. summary decision with an alternate hearing to resolve factual issues in order of removal. dispute. An evidentiary hearing (e) General. An application under this extending beyond issues related to the section shall be made only during the (c) Order of the immigration judge. basis for a mandatory denial of the hearing and shall not be held to The order of the immigration judge shall application pursuant to § 208.14 or constitute a concession of alienage or direct the respondent’s removal, or the § 208.16 of this chapter is not necessary deportability in any case in which the termination of the proceedings, or such once the immigration judge has respondent does not admit his or her other disposition of the case as may be determined that such a denial is alienage or deportability. However, appropriate. When removal is ordered, required. nothing in this section shall prohibit the the immigration judge shall specify the (i) Evidentiary hearings on Service from using information supplied country, or countries in the alternate, to applications for asylum or withholding in an application for asylum or which respondent’s removal shall be of removal will be open to the public withholding of deportation or removal directed. The immigration judge is unless the alien expressly requests that submitted to the Service on or after authorized to issue orders in the the hearings be closed pursuant to § 3.27 January 4, 1995, as the basis for issuance alternative or in combination as he or of a charging document or to establish of this chapter. The immigration judge she may deem necessary. shall inquire whether the alien requests alienage or deportability in a case such closure. referred to an immigration judge under § 240.13 Notice of decision. § 208.14(b) of this chapter. The alien (ii) Nothing in this section is intended (a) Written decision. A written to limit the authority of the immigration shall have the burden of establishing that he or she is eligible for any decision shall be served upon the judge to properly control the scope of respondent and the service counsel, any evidentiary hearing. requested benefit or privilege and that it should be granted in the exercise of together with the notice referred to in (iii) During the removal hearing, the discretion. Nothing contained herein is § 3.3 of this chapter. Service by mail is alien shall be examined under oath on intended to foreclose the respondent complete upon mailing. his or her application and may present from applying for any benefit or evidence and witnesses in his or her (b) Oral decision. An oral decision privilege that he or she believes himself own behalf. The alien has the burden of shall be stated by the immigration judge or herself eligible to receive in establishing that he or she is a refugee in the presence of the respondent and proceedings under this part. Nothing in as defined in section 101(a)(42) of the the service counsel, if any, at the this section is intended to limit the Act pursuant to the standards set forth conclusion of the hearing. A copy of the Attorney General’s authority to remove in § 208.13 of this chapter. summary written order shall be an alien to any country permitted by (iv) The assistant district counsel may furnished at the request of the section 241(b) of the Act. respondent or the service counsel. call witnesses and present evidence for (f) Fees. The alien shall not be the record, including information required to pay a fee on more than one (c) Summary decision. When the classified under the applicable application within paragraphs (a) and immigration judge renders a summary Executive Order, provided the (c) of this section, provided that the decision as provided in § 240.12(b), he immigration judge or the Board has minimum fee imposed when more than or she shall serve a copy thereof upon determined that such information is one application is made shall be the respondent at the conclusion of the relevant to the hearing. When the determined by the cost of the hearing. immigration judge receives such application with the highest fee. classified information, he or she shall (d) Decision to remove. If the inform the alien. The agency that § 240.12 Decision of the immigration immigration judge decides that the provides the classified information to judge. respondent is removable and orders the the immigration judge may provide an (a) Contents. The decision of the respondent to be removed, the unclassified summary of the immigration judge may be oral or immigration judge shall advise the information for release to the alien, written. The decision of the immigration respondent of such decision, and of the whenever it determines it can do so judge shall include a finding as to consequences for failure to depart under consistently with safeguarding both the inadmissibility or deportability. The the order of removal, including civil and classified nature of the information and formal enumeration of findings is not criminal penalties described at sections its sources. The summary should be as required. The decision shall also 274D and 243 of the Act. Unless appeal detailed as possible, in order that the contain reasons for granting or denying from the decision is waived, the alien may have an opportunity to offer the request. The decision shall be respondent shall be furnished with opposing evidence. A decision based in concluded with the order of the Form EOIR–26, Notice of Appeal, and whole or in part on such classified immigration judge. advised of the provisions of § 240.15. 494 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

§ 240.14 Finality of order. Form EOIR–42, Application for (2) Join in a motion asking the The order of the immigration judge Cancellation of Removal, to the immigration judge to permit voluntary shall become final in accordance with Immigration Court having departure in accordance with § 240.26. § 3.39 of this chapter. administrative control over the Record (e) Appeals. An appeal shall not lie of Proceeding of the underlying removal from a denial of an application for § 240.15 Appeals. proceeding under section 240 of the Act. voluntary departure under this section, Pursuant to 8 CFR part 3, an appeal (b) Filing the application. The but the denial shall be without shall lie from a decision of an application may be filed only with the prejudice to the alien’s right to apply to immigration judge to the Board of immigration Court after jurisdiction has the immigration judge for voluntary Immigration Appeals, except that no vested pursuant to § 3.14 of this chapter. departure in accordance with § 240.26 appeal shall lie from an order of or for relief from removal under any removal entered in absentia. The §§ 240.21±240.24 [Reserved] provision of law. procedures regarding the filing of a (f) Revocation. If, subsequent to the Form EOIR 26, Notice of Appeal, fees, Subpart CÐVoluntary Departure granting of an application for voluntary and briefs are set forth in §§ 3.3, 3.31, § 240.25 Voluntary departureÐauthority of departure under this section, it is and 3.38 of this chapter. An appeal shall the Service. ascertained that the application should be filed within 30 calendar days after not have been granted, that grant may be the mailing of a written decision, the (a) Authorized officers. The authority revoked without notice by any officer stating of an oral decision, or the service contained in section 240B(a) of the Act authorized to grant voluntary departure of a summary decision. The filing date to permit aliens to depart voluntarily under § 240.25(a). is defined as the date of receipt of the from the United States may be exercised Notice of Appeal by the Board of in lieu of being subject to proceedings § 240.26 Voluntary departureÐauthority of Immigration Appeals. The reasons for under section 240 of the Act or prior to the Executive Office for Immigration Review. the appeal shall be stated in the Notice the completion of such proceedings by of Appeal in accordance with the district directors, assistant district (a) Eligibility; general. An alien provisions of § 3.3(b) of this chapter. directors for investigations, assistant previously granted voluntary departure Failure to do so may constitute a ground district directors for examinations, under section 240B of the Act, including for dismissal of the appeal by the Board officers in charge, chief patrol agents, by the Service under § 240.25, and who pursuant to § 3.1(d)(1–a) of this chapter. service center directors, and assistant fails to depart voluntarily within the center directors for examinations. time specified, shall thereafter be § 240.16 Application of new procedures or (b) Conditions. The Service may ineligible, for a period of ten years, for termination of proceedings in old attach to the granting of voluntary voluntary departure or for relief under proceedings pursuant to section 309(c) of sections 240A, 245, 248, and 249 of the Pub. L. 104±208. departure any conditions it deems necessary to ensure the alien’s timely Act. The Attorney General shall have the departure from the United States, (b) Prior to completion of removal sole discretion to apply the provisions including the posting of a bond, proceedings. (1) Grant by the of section 309(c) of Pub. L. 104–208, continued detention pending departure, immigration judge. (i) An alien may be which provides for the application of and removal under safeguards. The granted voluntary departure by an new removal procedures to certain cases alien shall be required to present to the immigration judge pursuant to section in exclusion or deportation proceedings Service, for inspection and 240B(a) of the Act only if the alien: and for the termination of certain cases photocopying, his or her passport or (A) Makes such request prior to or at in exclusion or deportation proceedings other travel documentation sufficient to a master calendar hearing; and initiation of new removal assure lawful entry into the country to (B) Makes no additional request for proceedings. The Attorney General’s which the alien is departing. The relief (or if such requests have been application of the provisions of section Service may hold the passport or made, such requests are withdrawn 309(c) shall become effective upon documentation for sufficient time to prior to any grant of voluntary departure publication of a notice in the Federal investigate its authenticity. pursuant to this section); Register. However, if the Attorney (C) Concedes removability; and (c) Periods of time. The authorized General determines, in the exercise of (D) Waives appeal of all issues. discretion, that the delay caused by officer, in his or her discretion, shall (ii) The judge may not grant voluntary publication would adversely affect the specify the period of time permitted for departure under section 240B(a) of the interests of the United States or the voluntary departure, and may grant Act beyond 30 days after the case has effective enforcement of the extensions thereof, except that the total been calendared for a merits hearing, immigration laws, the Attorney period allowed, including any except pursuant to a stipulation under General’s application shall become extensions, shall not exceed 120 days. paragraph (b)(2) of this section. effective immediately upon issuance, (d) Application. Any alien who (2) Stipulation. At any time prior to and shall be published in the Federal believes himself or herself to be eligible the completion of removal proceedings, Register as soon as practicable for voluntary departure under this the Service attorney may stipulate to a thereafter. section may apply therefor at any office grant of voluntary departure under of the Service. After the commencement section 240B(a) of the Act. §§ 240.17±240.19 [Reserved] of removal proceedings, the application (3) Conditions. (i) The judge may may be communicated through the Subpart BÐCancellation of Removal impose such conditions as he or she Service attorney. If the Service agrees to deems necessary to ensure the alien’s § 240.20 Cancellation of removal and voluntary departure after proceedings timely departure from the United States, adjustment of status under section 240A of have commenced, it may either: including the posting of a voluntary the Act. (1) Join in a motion to terminate the departure bond to be canceled upon (a) Jurisdiction. An application for the proceedings, and if the proceedings are proof that the alien has departed the exercise of discretion under section terminated, grant voluntary departure; United States within the time specified. 240A of the Act shall be submitted on or The alien shall be required to present to Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 495 the Service, for inspection and challenge its authenticity or sufficiency number of days of voluntary departure photocopying, his or her passport or before voluntary departure is granted. granted. other travel documentation sufficient to (3) Conditions. The judge may impose (2) At the conclusion of the section assure lawful entry into the country to such conditions as he or she deems 240 removal proceeding. An appeal of a which the alien is departing, unless: necessary to ensure the alien’s timely grant or denial of voluntary departure at (A) A travel document is not departure from the United States. In all the conclusion of the section 240 necessary to return to his or her native cases under section 240B(b) of the Act, removal proceeding shall be limited to country or to which country the alien is the alien shall be required to post a the issues of whether the alien is departing; or voluntary departure bond, in an amount eligible for a grant of voluntary (B) The document is already in the necessary to ensure that the alien departure under the Act and this possession of the Service. departs within the time specified, but in chapter and whether the alien merits a (ii) The Service may hold the passport no case less than $500. The voluntary grant of voluntary departure as a matter or documentation for sufficient time to departure bond shall be posted with the of discretion. Such an appeal shall not investigate its authenticity. If such district director within 5 business days challenge the number of days of documentation is not immediately of the immigration judge’s order voluntary departure granted. available to the alien, but the granting voluntary departure, and the (h) Reinstatement of voluntary immigration judge is satisfied that the district director may, at his or her departure. An immigration judge or the alien is making diligent efforts to secure discretion, hold the alien in custody Board may reinstate voluntary departure it, voluntary departure may be granted until the bond is posted. If the bond is in a removal proceeding that has been for a period not to exceed 120 days, not posted within 5 business days, the reopened for a purpose other than solely subject to the condition that the alien voluntary departure order shall vacate making application for voluntary within 60 days must secure such automatically and the alternate order of departure, if reopening was granted documentation and present it to the removal will take effect on the following prior to the expiration of the original Service. The Service in its discretion day. In order for the bond to be period of voluntary departure. In no may extend the period within which the canceled, the alien must provide proof event can the total period of time, alien must provide such documentation. of departure to the district director. including any extension, exceed 120 If the documentation is not presented (d) Alternate order of removal. Upon days or 60 days as set forth in section within the 60-day period or any granting a request made for voluntary 240B of the Act and paragraph (a) of this extension thereof, the voluntary departure either prior to the completion section. departure order shall vacate of proceedings or at the conclusion of §§ 240.27±240.29 [Reserved] automatically and the alternate order of proceedings, the immigration judge deportation will take effect, as if in shall also enter an alternate order or Subpart DÐExclusion of Aliens (for effect on the date of issuance of the removal. Hearings Commenced Prior to April 1, immigration judge order. (e) Periods of time. If voluntary 1997) (c) At the conclusion of the removal departure is granted prior to the proceedings. (1) Required findings. An completion of removal proceedings, the § 240.30 Proceedings prior to April 1, 1997. immigration judge may grant voluntary immigration judge may grant a period Subpart D of 8 CFR part 240 applies departure at the conclusion of the not to exceed 120 days. If voluntary to exclusion proceedings commenced removal proceedings under section departure is granted at the conclusion of prior to April 1, 1997, pursuant to the 240B(b) of the Act, if he or she finds proceedings, the immigration judge may former section 236 of the Act. All that: grant a period not to exceed 60 days. references to the Act contained in this (i) The alien has been physically (f) Extension of time to depart. subpart are references to the Act in present in the United States for period Authority to extend the time within effect prior to April 1, 1997. of at least one year preceding the date which to depart voluntarily specified § 240.31 Authority of immigration judges. the Notice to Appear was served under initially by an immigration judge or the In determining cases referred for section 239(a) of the Act; Board is within the sole jurisdiction of further inquiry as provided in section (ii) the alien is, and has been, a person the district director. An immigration 235 of the Act, immigration judges shall of good moral character for at least five judge or the Board may reinstate have the powers and authority conferred years immediately preceding the voluntary departure in a removal upon them by the Act and this chapter. application; proceeding that has been reopened for a Subject to any specific limitation (iii) the alien is not deportable under purpose other than solely making an prescribed by the Act and this chapter, section 237(a)(2)(A)(iii) or 237(a)(4) of application for voluntary departure if immigration judges shall also exercise the Act; and reopening was granted prior to the the discretion and authority conferred (iv) the alien has established by clear expiration of the original period of upon the Attorney General by the Act as and convincing evidence that the alien voluntary departure. In no event can the is appropriate and necessary for the has the means to depart the United total period of time, including any disposition of such cases. States and has the intention to do so. extension, exceed 120 days or 60 days (2) Travel documentation. Except as as set forth in section 240B of the Act. § 240.32 Hearing. otherwise provided in paragraph (b)(3) (g) Administrative Appeals. (1) Grants (a) Opening. Exclusion hearings shall of this section, the clear and convincing of requests made prior to the completion be closed to the public, unless the alien evidence of the means to depart shall of the section 240 removal proceeding. at his or her own instance requests that include in all cases presentation by the A Service appeal of a grant of voluntary the public, including the press, be alien of a passport or other travel departure prior to the completion of permitted to attend; in that event, the documentation sufficient to assure section 240 removal proceedings shall hearing shall be open, provided that the lawful entry into the country to which be limited to the issue of whether the alien states for the record that he or she the alien is departing. The Service shall alien merits the grant of voluntary is waiving the requirement in section have full opportunity to inspect and departure as a matter of discretion. Such 236 of the Act that the inquiry shall be photocopy the documentation, and to an appeal shall not challenge the kept separate and apart from the public. 496 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

When the hearing is to be open, § 240.33 Applications for asylum or (4) The trial attorney for the depending upon physical facilities, withholding of deportation. government may call witnesses and reasonable limitation may be placed (a) If the alien expresses fear of present evidence for the record, upon the number in attendance at any persecution or harm upon return to his including information classified under one time, with priority being given to or her country of origin or to a country the applicable Executive Order, the press over the general public. The to which the alien may be deported after provided the immigration judge or the immigration judge shall ascertain a determination of excludability from Board has determined that such whether the applicant for admission is the United States pursuant to this information is relevant to the hearing. the person to whom Form I–122 was subpart, and the alien has not been The applicant shall be informed when previously delivered by the examining referred to the immigration judge by an the immigration judge receives such immigration officer as provided in 8 asylum officer in accordance with classified information. The agency that CFR part 235; enter a copy of such form § 208.14(b) of this chapter, the provides the classified information to in evidence as an exhibit in the case; immigration judge shall: the immigration judge may provide an inform the applicant of the nature and (1) Advise the alien that he may apply unclassified summary of the purpose of the hearing; advise him or for asylum in the United States or information for release to the applicant her of the privilege of being represented withholding of deportation to that other whenever it determines it can do so by an attorney of his or her own choice country; and consistently with safeguarding both the at no expense to the Government, and (2) Make available the appropriate classified nature of the information and of the availability of free legal services application forms. its source. The summary should be as (b) An application for asylum or programs qualified under 8 CFR part 3 detailed as possible, in order that the withholding of deportation must be and organizations recognized pursuant applicant may have an opportunity to filed with the Immigration Court, to § 292.2 of this chapter located in the offer opposing evidence. A decision pursuant to § 208.4(c) of this chapter. district where his or her exclusion based in whole or in part on such Upon receipt of an application that has hearing is to be held; and shall ascertain classified information shall state that not been referred by an asylum officer, that the applicant has received a list of such information is material to the the Immigration Court shall forward a such programs; and request him or her decision. copy to the Department of State to ascertain then and there whether he (d) The decision of an immigration pursuant to § 208.11 of this chapter and or she desires representation; advise judge to grant or deny asylum or shall calendar the case for a hearing. him or her that he or she will have a withholding of deportation shall be The reply, if any, from the Department reasonable opportunity to present communicated to the applicant and to of State, unless classified under the evidence in his or her own behalf, to the trial attorney for the government. An applicable Executive Order, shall be examine and object to evidence against adverse decision will state why asylum given to both the applicant and to the him or her, and to cross-examine or withholding of deportation was trial attorney representing the witnesses presented by the Government; denied. government. and place the applicant under oath. (c) Applications for asylum or § 240.34 Renewal of application for (b) Procedure. The immigration judge withholding of deportation so filed will adjustment of status under section 245 of shall receive and adduce material and be decided by the immigration judge the Act. relevant evidence, rule upon objections, pursuant to the requirements and An adjustment application by an alien and otherwise regulate the course of the standards established in 8 CFR part 208 paroled under section 212(d)(5) of the hearing. after an evidentiary hearing that is Act, which has been denied by the (c) Attorney for the Service. The necessary to resolve material factual district director, may be renewed in Service shall assign an attorney to each issues in dispute. An evidentiary exclusion proceedings under section case in which an applicant’s nationality hearing extending beyond issues related 236 of the Act (as in effect prior to April is in issue and may assign an attorney to the basis for a mandatory denial of 1, 1997) before an immigration judge to any case in which such assignment is the application pursuant to § 208.13(c) under the following two conditions: deemed necessary or advantageous. The of this chapter is not necessary once the first, the denied application must have duties of the Service attorney include, immigration judge has determined that been properly filed subsequent to the but are not limited to, the presentation such denial is required. applicant’s earlier inspection and of evidence and the interrogation, (1) Evidentiary hearings on admission to the United States; and examination, and cross-examination of applications for asylum or withholding second, the applicant’s later absence the applicant and other witnesses. of deportation will be closed to the from and return to the United States Nothing contained herein diminishes public unless the applicant expressly must have been under the terms of an the authority of an immigration judge to requests that it be open pursuant to advance parole authorization on Form conduct proceedings under this part. § 236.3 of this chapter. I–512 granted to permit the applicant’s (2) Nothing in this section is intended (d) Depositions. The procedures absence and return to pursue the to limit the authority of the immigration previously filed adjustment application. specified in § 240.48(e) shall apply. judge properly to control the scope of (e) Record. The hearing before the any evidentiary hearing. § 240.35 Decision of the immigration immigration judge, including the (3) During the exclusion hearing, the judge; notice to the applicant. testimony, exhibits, applications, applicant shall be examined under oath (a) Decision. The immigration judge proffers, and requests, the immigration on his or her application and may shall inform the applicant of his or her judge’s decision, and all written orders, present evidence and witnesses on his decision in accordance with § 3.37 of motions, appeals, and other papers filed or her own behalf. The applicant has the this chapter. in the proceeding shall constitute the burden of establishing that he or she is (b) Advice to alien ordered excluded. record in the case. The hearing shall be a refugee as defined in section An alien ordered excluded shall be recorded verbatim except for statements 101(a)(42) of the Act pursuant to the furnished with Form I–296, Notice to made off the record with the permission standard set forth in § 208.13 of this Alien Ordered Excluded by Immigration of the immigration judge. chapter. Judge, at the time of an oral decision by Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 497 the immigration judge or upon service explained to him or her by the his or her duties within a reasonable of a written decision. immigration judge and he or she was time, or if at any time the respondent (c) Holders of refugee travel afforded an opportunity to do so at the consents to a substitution, another documents. Aliens who are holders of hearing, unless circumstances have immigration judge may be assigned to valid unexpired refugee travel arisen thereafter on the basis of which complete the case. The new immigration documents may be ordered excluded the request is being made. The filing of judge shall familiarize himself or herself only if they are found to be inadmissible a motion under this section with an with the record in the case and shall under section 212(a)(2), 212(a)(3), or immigration judge shall not serve to stay state for the record that he has done so. 212(a)(6)(E) of the Act, and it is the execution of an outstanding determined that on the basis of the acts decision; execution shall proceed unless § 240.42 Representation by counsel. for which they are inadmissible there the immigration judge who has The respondent may be represented at are compelling reasons of national jurisdiction over the motion specifically the hearing by an attorney or other security or public order for their grants a stay of deportation. The representative qualified under 8 CFR exclusion. If the immigration judge immigration judge may stay deportation part 292. finds that the alien is inadmissible but pending his or her determination of the § 240.43 Incompetent respondents. determines that there are no compelling motion and also pending the taking and reasons of national security or public disposition of an appeal from such When it is impracticable for the order for exclusion, the immigration determination. respondent to be present at the hearing judge shall remand the case to the because of mental incompetency, the district director for parole. Subpart EÐProceedings To Determine guardian, near relative, or friend who Deportability of Aliens in the United was served with a copy of the order to § 240.36 Finality of order. States: Hearing and Appeal (for show cause shall be permitted to appear The decision of the immigration judge Proceedings Commenced Prior to April on behalf of the respondent. If such a shall become final in accordance with 1, 1997) person cannot reasonably be found or § 3.37 of this chapter. fails or refuses to appear, the custodian § 240.40 Proceedings commenced prior to of the respondent shall be requested to § 240.37 Appeals. April 1, 1997. appear on behalf of the respondent. Except for temporary exclusions Subpart E of 8 CFR part 240 applies under section 235(c) of the Act, an only to deportation proceedings § 240.44 Interpreter. appeal from a decision of an commenced prior to April 1, 1997. All Any person acting as interpreter in a Immigration Judge under this part may references to the Act contained in this hearing before an immigration judge be taken by either party pursuant to subpart pertain to the Act as in effect under this part shall be sworn to § 3.38 of this chapter. prior to April 1, 1997. interpret and translate accurately, unless the interpreter is an employee of § 240.41 Immigration Judges. § 240.38 Fingerprinting of excluded aliens. the United States Government, in which Every alien 14 years of age or older (a) Authority. In any proceeding event no such oath shall be required. who is excluded from admission to the conducted under this part the United States by an immigration judge immigration judge shall have the § 240.45 Postponement and adjournment shall be fingerprinted, unless during the authority to determine deportability and of hearing. preceding year he or she has been to make decisions, including orders of After the commencement of the fingerprinted at an American consular deportation, as provided by section hearing, the immigration judge may office. 242(b) and 242B of the Act; to reinstate grant a reasonable adjournment either at orders of deportation as provided by his or her own instance or, for good § 240.39 Reopening or reconsideration. section 242(f) of the Act; to determine cause shown, upon application by the Except as otherwise provided in this applications under sections 208, 212(k), respondent or the Service. section, a motion to reopen or 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245, reconsider shall be subject to the and 249 of the Act; to determine the § 240.46 Evidence. requirements of § 103.5 of this chapter. country to which an alien’s deportation (a) Sufficiency. A determination of The immigration judge may upon his or will be directed in accordance with deportability shall not be valid unless it her own motion, or upon motion of the section 243(a) of the Act; to order is found by clear, unequivocal, and trial attorney or the respondent, reopen temporary withholding of deportation convincing evidence that the facts or reconsider any case in which he or pursuant to section 243(h) of the Act; alleged as grounds for deportation are she had made a decision, unless and to take any other action consistent true. jurisdiction in the case is vested in the with applicable law and regulations as (b) Use of prior statements. The Board of Immigration Appeals under 8 may be appropriate. An immigration immigration judge may receive in CFR part 3. An order by the immigration judge may certify his or her decision in evidence any oral or written statement judge granting a motion to reopen may any case to the Board of Immigration that is material and relevant to any issue be made on Form I–328. A motion to Appeals when it involves an unusually in the case previously made by the reopen will not be granted unless the complex or novel question of law or respondent or any other person during immigration judge is satisfied that fact. Nothing contained in this part shall any investigation, examination, hearing, evidence sought to be offered is material be construed to diminish the authority or trial. and was not available and could not conferred on immigration judges under (c) Testimony. Testimony of witnesses have been discovered or presented at section 103 of the Act. appearing at the hearing shall be under the hearing; nor will any motion to (b) Withdrawal and substitution of oath or affirmation administered by the reopen for the purpose of providing the immigration judges. The immigration immigration judge. respondent with an opportunity to make judge assigned to conduct the hearing (d) Depositions. The immigration an application under § 242.17 of this shall at any time withdraw if he deems judge may order the taking of chapter be granted if respondent’s right himself disqualified. If an immigration depositions pursuant to § 3.35 of this to make such application were fully judge becomes unavailable to complete chapter. 498 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

§ 240.47 Contents of record. charges contained therein. If the § 240.49 Ancillary matters, applications. The hearing before the immigration respondent admits the factual (a) Creation of the status of an alien judge, including the testimony, exhibits, allegations and admits his or her lawfully admitted for permanent applications, proffers, and requests, the deportability under the charges and the residence. The respondent may apply to immigration judge’s decision, and all immigration judge is satisfied that no the immigration judge for suspension of written orders, motions, appeals, briefs, issues of law or fact remain, the deportation under section 244(a) of the and other papers filed in the immigration judge may determine that Act; for adjustment of status under proceedings shall constitute the record deportability as charged has been section 245 of the Act, or under section in the case. The hearing shall be established by the admissions of the 1 of the Act of November 2, 1966, or recorded verbatim except for statements respondent. The immigration judge under section 101 or 104 of the Act of made off the record with the permission shall not accept an admission of October 28, 1977; or for the creation of of the immigration judge. In his or her deportability from an unrepresented a record of lawful admission for discretion, the immigration judge may respondent who is incompetent or permanent residence under section 249 exclude from the record any arguments under age 16 and is not accompanied by of the Act. The application shall be made in connection with motions, a guardian, relative, or friend; nor from subject to the requirements of 8 CFR applications, requests, or objections, but an officer of an institution in which a parts 240, 245, and 249. The approval of in such event the person affected may respondent is an inmate or patient. any application made to the submit a brief. When, pursuant to this paragraph, the immigration judge under section 245 of § 240.48 Hearing. immigration judge may not accept an the Act by an alien spouse (as defined admission of deportability, he or she in section 216(g)(1) of the Act) or by an (a) Opening. The immigration judge shall direct a hearing on the issues. shall advise the respondent of his or her alien entrepreneur (as defined in section right to representation, at no expense to (c) Issues of deportability. When 216A(f)(1) of the Act), shall result in the the Government, by counsel of his or deportability is not determined under alien’s obtaining the status of lawful her own choice authorized to practice in the provisions of paragraph (b) of this permanent resident on a conditional the proceedings and require him or her section, the immigration judge shall basis in accordance with the provisions to state then and there whether he request the assignment of a trial of section 216 or 216A of the Act, desires representations; advise the attorney, and shall receive evidence as whichever is applicable. However, the respondent of the availability of free to any unresolved issues, except that no Petition to Remove the Conditions on legal services programs qualified under further evidence need be received as to Residence required by section 216(c) of 8 CFR part 3 and organizations any facts admitted during the pleading. the Act of the Petition by Entrepreneur recognized pursuant to § 292.2 of this The respondent shall provide a court to Remove Conditions required by chapter, located in the district where the certified copy of a Judicial section 216A(c) of the Act shall be made deportation hearing is being held; Recommendation Against Deportation to the director in accordance with 8 CFR ascertain that the respondent has (JRAD) to the special inquiry officer part 216. In conjunction with any received a list of such programs, and a when such recommendation will be the application for creation of status of an copy of Form I–618, Written Notice of basis of denying any charge(s) brought alien lawfully admitted for permanent Appeal Rights; advise the respondent by the Service in the proceedings residence made to an immigration that he or she will have a reasonable against the respondent. No JRAD is judge, if the respondent is inadmissible opportunity to examine and object to effective against a charge of under any provision of section 212(a) of the evidence against him, to present deportability under section 241(a)(11) of the Act and believes that he or she evidence in his or her own behalf and the Act or if the JRAD was granted on meets the eligibility requirements for a to cross-examine witnesses presented by or after November 29, 1990. waiver of the ground of inadmissibility, the Government; place the respondent (d) Additional charges. The Service he or she may apply to the immigration under oath; read the factual allegations may at any time during a hearing lodge judge for such waiver. The immigration and the charges in the order to show additional charges of deportability, judge shall inform the respondent of his cause to the respondent and explain including factual allegations, against the or her apparent eligibility to apply for them in nontechnical language, and respondent. Copies of the additional any of the benefits enumerated in this enter the order to show cause as an factual allegations and charges shall be paragraph and shall afford the exhibit in the record. Deportation submitted in writing for service on the respondent an opportunity to make hearings shall be open to the public, respondent and entry as an exhibit in application therefor during the hearing. except that the immigration judge may, the record. The immigration judge shall In exercising discretionary power when in his or her discretion and for the read the additional factual allegations considering an application under this purpose of protecting witnesses, and charges to the respondent and paragraph, the immigration judge may respondents, or the public interest, explain them to him or her. The consider and base the decision on direct that the general public or immigration judge shall advise the information not contained in the record particular individuals shall be excluded respondent if he or she is not and not made available for inspection from the hearing in any specific case. represented by counsel that he or she by the respondent, provided the Depending upon physical facilities, may be so represented and also that he Commissioner has determined that such reasonable limitation may be placed or she may have a reasonable time information is relevant and is classified upon the number in attendance at any within which to meet the additional under the applicable Executive Order as one time, with priority being given to factual allegations and charges. The requiring protection from unauthorized the press over the general public. respondent shall be required to state disclosure in the interest of national (b) Pleading by respondent. The then and there whether he or she desires security. Whenever the immigration immigration judge shall require the a continuance for either of these judge believes that he or she can do so respondent to plead to the order to show reasons. Thereafter, the provisions of while safeguarding both the information cause by stating whether he or she paragraph (b) of this section shall apply and its source, the immigration judge admits or denies the factual allegations to the additional factual allegations and should inform the respondent of the and his or her reportability under the lodged charges. general nature of the information in Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 499 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 an judge properly to control the scope of case referred to an immigration judge 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 request benefit or privilege and that alternative, to which respondent’s present evidence and witnesses in his or it should be granted in the exercise of deportation will be directed pursuant to her own behalf. The applicant has the discretion. The respondent shall not be section 243(a) of the Act if the country burden of establishing that he or she is required to pay a fee on more than one of his or her designation will not accept a refugee as defined in section application within paragraphs (a) and him or her into its territory, or fails to 101(a)(42) of the Act pursuant to the (c) of this section, provided that the furnish timely notice of acceptance, or standard set forth in § 208.13 of this minimum fee imposed when more than if the respondent declines to designate chapter. one application is made shall be a country. (iv) The trial attorney for the determined by the cost of the (2) If the alien expresses fear of government may call witnesses and application with the highest fee. persecution or harm upon return to any present evidence for the record, Nothing contained herein is intended to of the countries to which the alien including information classified under foreclose the respondent from applying might be deported pursuant to the applicable Executive Order, for any benefit or privilege which he or paragraph (c)(1) of this section, and the provided the immigration judge or the she believes himself or herself eligible alien has not previously filed on Board has determined that such to receive in proceedings under this application for asylum or withholding information is relevant to the hearing. part. of deportation that has been referred to When the immigration judge receives the immigration judge by an asylum such classified information he or she § 240.50 Decision of the immigration officer in accordance with § 208.14(b) of shall inform the applicant. The agency judge. this chapter, the immigration judge that provides the classified information (a) Contents. The decision of the shall: to the immigration judge may provide immigration judge may be oral or (i) Advise the alien that he may apply an unclassified summary of the written. Except when deportability is for asylum in the United States or information for release to the applicant, determined on the pleadings pursuant withholding of deportation to those whenever it determines it can do so to § 240.48(b), the decision of the countries; and consistently with safeguarding both the immigration judge shall include a (ii) Make available the appropriate classified nature of the information and finding as to deportability. The formal application forms. its source. The summary should be as enumeration of findings is not required. (3) An application for asylum or detailed as possible, in order that the The decision shall also contain the withholding of deportation must be applicant may have an opportunity to reasons for granting or denying the filed with the Immigration Court, offer opposing evidence. A decision request. The decision shall be pursuant to § 208.4(b) of this chapter. based in whole or in part on such concluded with the order of the Upon receipt of an application that has classified information shall state immigration judge. not been referred by an asylum officer, whether such information is material to (b) Summary decision. the Immigration Court shall forward a the decision. Notwithstanding the provisions of copy to the Department of State (5) The decision of an immigration paragraph (a) of this section, in any case pursuant to § 208.11 of this chapter and judge to grant or deny asylum or where deportability is determined on shall calendar the case for a hearing. withholding of deportation shall be the pleadings pursuant to § 240.48(b) The reply, if any, of the Department of communicated to the applicant and to and the respondent does not make an State, unless classified under the the trial attorney for the government. An application under § 240.49, or the applicable Executive Order, shall be adverse decision will state why asylum respondent applies for voluntary given to both the applicant and to the or withholding of deportation was departure only and the immigration trial attorney representing the denied. judge grants the application, the government. (d) Application for relief under immigration judge may enter a summary (4) Applications for asylum or sections 241(a)(1)(H) and decision on Form EOIR–7, Summary withholding of deportation so filed will 241(a)(1)(E)(iii) of the Act. The Order of Deportation, if deportation is 500 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules ordered, or on Form EOIR–6, Summary Notice of Appeal by the Board. The provisions of paragraphs (c) and (d) of Order of Voluntary Departure, if reasons for the appeal shall be stated in this section shall cease to apply. voluntary departure is granted with an the Form EOIR–26, Notice of Appeal, in alternate order of deportation. accordance with the provisions of Subpart FÐSuspension of Deportation (c) Order of the immigration judge. § 3.3(b) of this chapter. Failure to do so and Voluntary Departure (for The order of the immigration judge shall may constitute a ground for dismissal of Proceedings Commenced Prior to April direct the respondent’s deportation, or the appeal by the Board pursuant to 1, 1997) the termination of the proceedings, or § 3.1(d)(1–a) of this chapter. such other disposition of the case as (b) Prohibited appeals; legalization or § 240.55 Proceedings commenced prior to may be appropriate. When deportation applications. An alien respondent April 1, 1997. is ordered, the immigration judge shall defined in § 245a.2(c)(6) or (7) of this Subpart F of 8 CFR part 240 applies specify the country, or countries in the chapter who fails to file an application to deportation proceedings commenced alternate, to which respondent’s for adjustment of status to that of a prior to April 1, 1997. All references to deportation shall be directed. The temporary resident within the the Act contained in this subpart are immigration judge is authorized to issue prescribed period(s), and who is references to the Act in effect prior to orders in the alternative or in thereafter found to be deportable by April 1, 1997. combination as he or she may deem decision of an immigration judge, shall necessary. not be permitted to appeal the finding § 240.56 Application. of deportability based solely on refusal § 240.51 Notice of decision. Notwithstanding any other provision by the immigration judge to entertain of this chapter, an alien who is (a) Written decision. A written such an application in deportation decision shall be served upon the proceedings. deportable because of a conviction on or respondent and the trial attorney, after November 18, 1988, for an together with the notice referred to in § 240.54 Proceedings under section 242(f) aggravated felony as defined in section § 3.3 of this chapter. Service by mail is of the Act. 101(a)(43) of the Act, shall not be complete upon mailing. (a) Order to show cause. In the case eligible for voluntary departure as (b) Oral decision. An oral decision of an alien within the provisions of prescribed in 8 CFR part 240 and shall be stated by the immigration judge section 242(f) of the Act, the order to section 244 of the Act. Pursuant to in the presence of the respondent and show cause shall charge him or her with subpart F of this part and section 244 of the trail attorney, if any, at the deportability under section 242(f) of the the Act, an immigration judge may conclusion of the hearing. Unless appeal Act. The prior order of deportation and authorized the suspension of an alien’s from the decision is waived, the evidence of the execution thereof, deportation; or, if the alien established respondent shall be furnished with properly identified, shall constitute that he or she is willing and has the Form EOIR–26, Notice of Appeal, and prima facie cause for deportability immediate means with which to depart advised of the provisions of § 240.53. A under this section. promptly from the United States, an typewritten copy of the oral decision (b) Applicable procedure. Except as immigration judge may authorized the shall be furnished at the request of the otherwise provided in this section, respondent or the trial attorney. alien to depart voluntarily from the proceedings under section 242(f) of the United States in lieu of deportation (c) Summary decision. When the Act shall be conducted in general immigration judge renders a summary within such time as may be specified by accordance with the rules prescribed in the immigration judge when first decision as provided in § 240.51(b), he this part. or she shall serve a copy thereof upon authorizing voluntary departure, and (c) Deportability. In determining the under such conditions as the district the respondent at the conclusion of the deportability of an alien alleged to be director shall direct. An application for hearing. Unless appeal from the within the purview of paragraph (a) of suspension of deportation shall be made decision is waived, the respondent shall this section, the issues shall be limited on Form EOIR–40. be furnished with Form EOIR–26, to solely to a determination of the Notice of Appeal, and advised of the identity of the respondent, i.e., whether § 240.57 Extension of time to depart. provisions of § 240.54. the respondent is in fact an alien who Authority to reinstate or extend the § 240.52 Finality of order. was previously deported, or who departed while an order of deportation time within which to depart voluntarily The decision of the immigration judge specified initially by an immigration shall become final in accordance with was outstanding; whether the judge or the Board is within the sole § 3.39 of this chapter. respondent was previously deported as a member of any of the classes described jurisdiction of the district director, § 240.53 Appeals. in section 241(a)(2),(3) or (4) of the Act; except that an immigration judge or the (a) Pursuant to 8 CFR part 3, an and whether respondent has unlawfully Board may reinstate voluntary departure appeal shall lie from a decision of an reentered the United States. in a deportation proceeding that has immigration judge to the Board, except (d) Order. If deportability as charged been reopened for a purpose other than that no appeal shall lie from an order of in the order to show cause is solely making an application for deportation entered in absentia. The established, the Immigration Judge shall voluntary departure. A request by an procedures regarding the filing of a order that the respondent be deported alien for reinstatement or an extension Form EOIR–26, Notice of Appeal, fees, under the previous order of deportation of time within which to depart and briefs are set forth in §§ 3.3, 3.31, in accordance with section 242(f) of the voluntarily shall be filed with the and 3.38 of this chapter. An appeal shall Act. district director having jurisdiction over be filed within 30 calendar days after (e) Service counsel; additional the alien’s place of residence. Written the mailing of a written decision, the charges. When Service counsel is notice of the district director’s decision stating of an oral decision, or the service assigned to a proceeding under this shall be served upon the alien and no of a summary decision. The filing date section and additional charges are appeal may be taken therefrom. is defined as the date of receipt of the lodged against the respondent, the Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 501

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 107. 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 immediately upon entry of such order; convincing evidence that the release PART 241ÐAPPREHENSION AND or would not pose a danger to the DETENTION OF ALIENS ORDERED (f) If an immigration judge issues an community or a significant flight risk, REMOVED alternate order of removal in connection the district director may, in the exercise of discretion, order the alien released Subpart AÐPost-Hearing Detention and with a grant of voluntary departure, Removal upon overstay of the voluntary from custody on such conditions as the departure period except where the district director may prescribe, Sec. respondent has filed a timely appeal including bond in an amount sufficient 241.1 Final order of removal. to ensure the alien’s appearance for 241.2 Warrant of removal. with the Board. In such a case, the order 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 General, or upon overstay of any following factors: removal period. voluntary departure period granted or (1) The nature and seriousness of the 241.5 Conditions of release after removal reinstated by the Board or the Attorney alien’s criminal convictions; period. General. (2) Other criminal history; 241.6 Administrative stay of removal. (3) Sentence(s) imposed and time 241.7 Self-removal. § 241.2 Warrant of removal. actually served; 241.8 Reinstatement of removal orders. (a) Issuance of a warrant of removal. (4) History of failures to appear for 241.9 Notice to transportation line of A Form I–205, Warrant of Removal, court (defaults); inadmissible alien’s removal. based upon the final administrative (5) Probation history; 241.10 Special care and attention of (6) Disciplinary problems while removal order in the alien’s case shall removable aliens. incarcerated; 241.11 Detention and removal of be issued by a district director. The (7) Evidence of rehabilitative effort or stowaways. district director shall exercise the recidivism; 241.12 Nonapplication of costs of detention authority contained in section 241 of the (8) Equities in the United States; and and maintenance. Act to determine at whose expense the (9) Prior immigration violations and Subpart BÐDeportation of Excluded Aliens alien shall be removed and whether his 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 241.20 Proceedings commenced prior to route to his or her destination. section of the Act other than section April 1, 1997. (b) Execution of the warrant of 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 § 241.3 Detention of aliens during removal alien’s exclusion. to comply with the remvoal order and 241.25 Deportation. period. is not a risk to the community. Subpart CÐDeportation of Aliens in the (a) Assumption of custody. Once the United States (for Hearings Commenced removal period defined in section § 241.5 Conditions of release after removal Prior to April 1, 1997) 241(a)(1) of the Act begins, an alien in period. 241.30 Proceedings commenced prior to the United States will be taken into (a) Order of supervision. An alien April 1, 1997. custody pursuant to the warrant of released pursuant to § 241.4 shall be 241.31 Final order of deportation. removal. released pursuant to an order of 241.32 Warrant of deportation. (b) Cancellation of bond. Any bond supervision. A district director, acting 241.33 Expulsion. previously posted will be canceled district director, deputy district director, Authority: 8 U.S.C. 1103, 1223, 1227, 1251, unless it has been breached or is subject assistant district director for 1253, 1255, and 1330; 8 CFR part 2. to being breached. investigations, assistant district director (c) Judicial stays. The filing of (or for detention and deportation, or officer Subpart AÐPost-hearing Detention intention of file) a petition or action in in charge may issue an order of and Removal a Federal court seeking review of the supervision on Form I–220B. The order § 241.1 Final order of removal. issuance or execution of an order of shall specify conditions of supervision removal shall not delay execution of the including, but not limited to, the An order of removal made by the Warrant of Removal except upon an following: immigration judge at the conclusion of affirmative order of the court. (1) A requirement that the alien report proceedings under section 240 of the to a specified officer periodically and Act shall become final: § 241.4 Continued detention beyond the provide relevant information under oath removal period. (a) Upon dismissal of an appeal by the as directed; Board of Immigration Appeals; (a) Continuation of custody for (2) A requirement that the alien 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; (c) Upon expiration of the time section 212(a) of the Act or removable (3) A requirement that the alien report allotted for an appeal if the respondent under section 237(a)(1)(C), 237(a)(2), or as directed for a mental or physical does not file an appeal within that time; 237(a)(4) of the Act, or who presents a examinations as directed by the Service; 502 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

(4) A requirement that the alien obtain alien ordered excluded or deported in determination. If the alien wishes to advance approval of travel beyond proceedings prior to April 1, 1997) to make such a statement, the officer shall previously specified times and depart at his or her own expense to a allow the alien to do so and shall distances; and destination of his or her own choice. consider whether the alien’s statement (5) A requirement that the alien Any alien who has departed from the warrants reconsideration of the provide the Service with written notice United States while an order of determination. of any change of address within five deportation or removal is outstanding (c) Order. If the requirements of days of the change. shall be considered to have been paragraph (a) of this section are met, the (b) Posting of bond. An officer deported, excluded and deported, or alien shall be removed under the authorized to issue an order of removed, except that an alien who previous order of exclusion, supervision may require the posting of departed before the expiration of the deportation, or removal in accordance a bond in an amount determined by the voluntary departure period granted in with section 241(a)(5) of the Act. officer to be sufficient to ensure connection with an alternate order of (d) Exception for withholding of compliance with the conditions of the deportation or removal shall not be removal. If an alien whose prior order order, including surrender for removal. considered to have been so deported or of removal has been reinstated under (c) Employment authorization. An removed. this section expresses a fear of returning officer authorized to issue an order of to the country designated in that order, supervision may, in his or her § 241.8 Reinstatement of removal orders. the alien shall be immediately referred discretion, grant employment (a) Applicability. An alien who to an asylum officer to determine authorization to an alien released under illegally reenters the United States after whether the alien’s removal to that an order of supervision if the officer having been removed, or having country must be withheld under section specifically finds that: departed voluntarily, while under an 241(b)(3) of the Act. The alien’s claim (1) The alien cannot be removed order of exclusion, deportation, or will be granted or denied by an asylum because no country will accept the removal shall be removed from the officer in accordance with § 208.16 of alien; or United States by reinstating the prior this chapter. If the alien has previously (2) The removal of the alien is order. The alien has no right to a had a claim to withholding of impracticable or contrary to public hearing before an immigration judge in deportation or removal denied, then that interest. such circumstances. In establishing decision shall prevail unless the alien whether an alien is subject to this can establish the existence of changed § 241.6 Administrative stay of removal. section, the immigration officer shall circumstances that materially affect the Any request of an alien under a final determine the following: alien’s eligibility for withholding. The order of deportation or removal for a (1) Whether the alien has been subject alien’s case shall not be referred to an stay of deportation or removal shall be to a prior order of removal. The immigration judge, and there is no filed on Form I–246, Stay of Removal, immigration officer must obtain the appeal from the decision of the asylum with the district director having prior order of exclusion, deportation, or officer. If the alien is found to merit jurisdiction over the place where the removal relating to the alien. withholding of removal, the Service alien is at the time of filing. The district (2) The identity of the alien, i.e., shall not enforce the reinstated order. director, in his or her discretion and in whether the alien is in fact an alien who (e) Execution of reinstated order. consideration of factors such as are was previously removed, or who Execution of the reinstated order of listed in § 212.5 of this chapter and departed voluntarily while under an removal and detention of the alien shall section 241(c) of the Act, may grant a order of exclusion, deportation, or be administered in accordance with this stay of removal or deportation for such removal. In disputed cases, verification part. time and under such conditions as he or of identity shall be accomplished by a she may deem appropriate. Neither the comparison of fingerprints between § 241.9 Notice to transportation line of request nor the failure to receive notice those of the previously excluded, alien's removal. of disposition of the request shall delay deported, or removed alien contained in (a) An alien who has been ordered removal or relieve the alien from strict Service records and those of the subject removed shall, immediately or as compliance with any outstanding notice alien. In the absence of fingerprints in promptly as the circumstances permit, to surrender for deportation or removal. a disputed case the alien shall not be be offered for removal to the owner, Denial by the district director of a removed pursuant to this paragraph. agent, master, commanding officer, request for a stay is not appealable, but (3) Whether the alien unlawfully person in charge, purser, or consignee of such denial shall not preclude an reentered the United States. In making the vessel or aircraft on which the alien immigration judge or the Board from this determination, the officer shall is to be removed, as determined by the granting a stay in connection with a consider all relevant evidence, district director, with a written notice motion to reopen or a motion to including statements made by the alien specifying the cause of inadmissibility reconsider as provided in 8 CFR part 3. and any evidence in the alien’s or deportability, the class of travel in The Service shall take all reasonable possession. The immigration officer which such alien arrived and is to be steps to comply with a stay granted by shall attempt to verify an alien’s claim, removed, and with the return of any an immigration judge or the Board. if any, that he or she was lawfully documentation that will assist in However, such a stay shall cease to have admitted, which shall include a check effecting his or her removal. If special effect if granted (or communicated) after of Service data systems available to the care and attention are required, the the alien has been placed aboard an officer. provisions of § 241.10 shall apply. aircraft or other conveyance for removal (b) Notice. If an officer determines (b) Failure of the carrier to accept for and the normal boarding has been that an alien is subject to removal under removal an alien who has been ordered completed. this section, he or shall provide the removed shall result in the carrier being alien with written notice of his or her assessed any costs incurred by the § 241.7 Self-removal. determination. The officer shall advise Service for detention after the carrier’s A district director may permit an the alien that he or she may make a failure to accept the alien for removal, alien ordered removed (including an written or oral statement contesting the including the cost of any transportation Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 503 as required under section 241(e) of the section as the carrier) bringing any alien States. All expenses relating to removal Act. The User Fee Account shall not be stowaway to the United States is shall be borne by the owner. Other than assessed for expenses incurred because required to detain the stowaway on requiring compliance with the detention of the carrier’s violation of the board the vessel or aircraft, at the and removal requirements contained in provisions of section 241 of the Act and expense of the owner of the vessel or section 241(d)(2) of the Act, the Service this paragraph. The Service will, at the aircraft, until completion of the shall not impose additional conditions carrier’s option, retain custody of the inspection of the alien by an on the carrier regarding security alien for an additional 7 days beyond immigration officer. If detention on arrangements. Failure to comply with an the date of the removal order. If, after board the vessel or aircraft pending order to remove an alien stowaway shall the third day of this additional 7-day inspection is not possible, the carrier result in a civil penalty under section period, the carrier has not made all the shall advise the Service of this fact 243(c)(1)(A) of the Act. necessary transportation arrangements without delay, and the Service may (2) Detention of stowaways ordered for the alien to be returned to his or her authorize that the carrier detain the removed. If detention of the stowaway is point of embarkation by the end of the stowaway at another designated required pending removal on other than additional 7-day period, the Service will location, at the expense of the owner, the vessel or aircraft of arrival, or if the make the arrangements and bill the until the immigration officer arrives. No stowaway is to be removed on the vessel carrier for its costs. notice to detain the alien shall be or aircraft of arrival but departure of the required. Failure to detain an alien vessel or aircraft is not imminent and 241.10 Special care and attention of stowaway pending inspection shall circumstances preclude keeping the removable aliens. result in a civil penalty under section stowaway on board the vessel or When, in accordance with section 243(c)(1)(A) of the Act. The owner, aircraft, the Service shall take the 241(c)(3) of the Act, a transportation agent, master, commanding officer, stowaway into Service custody. The line is responsible for the expenses of an charterer, or consignee of a vessel or owner is responsible for all costs of inadmissible or deportable alien’s aircraft must present the stowaway for maintaining and detaining the removal, and the alien requires special inspection, along with any documents stowaway pending removal, including care and attention, the alien shall be or evidence of identity or nationality in costs for stowaways seeking asylum as delivered to the owner, agent, master, the possession of the alien or obtained described in paragraph (d) of this commanding officer, person in charge, by the carrier relating to the alien section. Such costs will be limited to purser, or consignee of the vessel or stowaway, and must provide any those normally incurred in the aircraft on which the alien will be available information concerning the detention of an alien by the Service, removed, who shall be given Forms I– alien’s boarding or apprehension. including, but not limited to, housing, 287, I–287A, and I–287B. The reverse of (b) Removal of stowaways from vessel food, transportation, medical expenses, Form I–287A shall be signed by the or aircraft for medical treatment. The and other reasonable costs incident to officer of the vessel or aircraft to whom district director may parole an alien the detention of the stowaway. The the alien has been delivered and stowaway into the United States for Service may require the posting of a immediately returned to the medical treatment, but the costs of bond or other surety to ensure payment immigration officer effecting delivery. detention and treatment of the alien of costs of detention. Form I–287B shall be retained by the stowaway shall be at the expense of the (d) Stowaways claiming asylum. (1) receiving officer and subsequently filled owner of the vessel or aircraft, and such Referral for credible fear determination. out by the agents or persons therein removal of the stowaway from the vessel A stowaway who indicates an intention designated and returned by mail to the or aircraft does not relieve the carrier of to apply for asylum or a fear of district director named on the form. The the requirement to remove the persecution shall be removed from the transportation line shall at its own stowaway from the United States once vessel or aircraft of arrival in accordance expense forward the alien from the such medical treatment has been with § 208.5(b) of this chapter. The foreign port of disembarkation to the completed. immigration officer shall refer the alien final destination specified on Form I– (c) Repatriation of stowaways. (1) to an asylum officer for a determination 287. The special care and attention shall Requirements of carrier. Following of credible fear in accordance with be continued to such final destination, inspection, an immigration officer may section 235(b)(1)(B) of the Act and except when the foreign public officers order the owner, agent, master, § 208.18 of this chapter. The stowaway decline to allow such attendant to commanding officer, charterer, or shall be detained in the custody of the proceed and they take charge of the consignee of a vessel or aircraft bringing Service pending the credible fear alien, in which case this fact shall be any alien stowaway to the United States determination and during any recorded by the transportation line on to remove the stowaway on the vessel or consideration of the asylum application. the reverse of Form I–287B. If the aircraft of arrival. If the owner, agent, (2) Costs of detention of asylum- transportation line fails, refuses, or master, commanding officer, cahrterer, seeking stowaways. The owner of the neglects to provide the necessary special or consignee requests that he or she be vessel or aircraft that brought the care and attention or comply with the allowed to remove the stowaway by stowaway to the United States shall directions of Form I–287, the district other means, the Service shall consider reimburse the Service for the costs of director shall thereafter and without any such request, provided the carrier maintaining and detaining the notice employ suitable persons, at the has obtained, or will obtain in a timely stowaway pending a determination of expense of the transportation line, and manner, any necessary travel documents credible fear under section 235(b)(1)(B) effect such removal. and has made or will make all of the Act, up to a maximum period of transportation arrangements. The 72 hours. The owner is also responsible § 241.11 Detention and removal of owner, agent, master, commanding for the costs of maintaining and stowaways. officer, charterer, or consignee shall detaining the stowaway during the (a) Presentation of stowaways. The transport the stowaway or arrange for period in which the stowaway is owner, agent, master, commanding secure escort of the stowaway to the pursuing his or her asylum application, officer, charterer, or consignee of a vessel or aircraft of departure to ensure for a maximum period of 15 working vessel or aircraft (referred to in this that the stowaway departs the United days, excluding Saturdays, Sundays, 504 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules and holidays. The 15-day period shall subpart D may at any time surrender beyond the date of the deportation/ begin on the day following the day in himself or herself to the custody of the exclusion order. If, after the third day of which the alien is determined to have Service and shall surrender to such this additional 7-day period, the carrier a credible fear of persecution by the custody upon notice in writing of the has not made all the necessary asylum officer, or by the immigration time and place for his or her surrender. transportation arrangements for the judge if such review was requested by The Service may take the alien into excluded alien to be returned to his or the alien pursuant to section custody at any time. An alien taken into her point of embarkation by the end of 235(b)(1)(B)(iii)(III), but not later than 72 custody either upon notice to surrender the additional 7-day period, the Service hours after the stowaway was initially or by arrest shall not be deported less will make the arrangements and bill the presented to the Service for inspection. than 72 hours thereafter without his or carrier for its costs. Following the determination of credible her consent thereto filed in writing with fear, if the stowaway’s application for the district director in charge of the § 241.25 Deportation. asylum is not adjudicated within 15 place of his or her detention. An alien (a) Definitions of terms. For the working days, the Service shall pay the in foreign contiguous territory shall be purposes of this section, the following costs of detention beyond this time informed that he or she may remain terms mean: period. If the stowaway is determined there in lieu of surrendering to the (1) Adjacent island—as defined in not to have a credible fear of Service, but that he or she will be section 101(b)(5) of the Act. persecution, or if the stowaway’s deemed to have acknowledged the (2) Foreign contiguous territory—any application for asylum is denied, execution of the order of exclusion and country sharing a common boundary including any appeals, the carrier shall deportation in his or her case upon his with the United States. be notified and shall arrange for or her failure to surrender at the time (3) Residence in foreign contiguous repatriation of the stowaway at the and place prescribed. territory or adjacent island—any expense of the owner of the vessel or physical presence, regardless of intent, aircraft on which the stowaway arrived. § 241.23 Cost of maintenance not in a foreign contiguous territory or an assessed. adjacent island if the government of § 241.12 Nonapplication of costs of A claim pursuant to section 237(a)(1) such territory or island agrees to accept detention and maintenance. of the Act shall be established to the the alien. The owner of a vessel or aircraft satisfaction of the district director in (4) Aircraft or vessel—any conveyance bringing an alien to the United States charge of the port of arrival, from whose and other mode of travel by which who claims to be exempt from payment adverse decision no appeal shall lie. arrival is affected. of the costs of detention and The district director shall afford the line (5) Next available flight—the carrier’s maintenance of the alien pursuant to a reasonable time within which to next regularly scheduled departure to section 241(c)(3)(B) of the Act shall submit affidavits and briefs to support the excluded alien’s point of establish to the satisfaction of the its claim. embarkation regardless of seat district director in charge of the port of availability. If the carrier’s next § 241.24 Notice to transportation line of regulatory scheduled departure of the arrival that such costs should not be alien's exclusion. applied. The district director shall excluded aliens point of embarkation is afford the line a reasonable time within (a) An excluded alien shall, full, the carrier has the option of which to submit affidavits and briefs to immediately or as promptly as the arranging for return transportation on support its claim. There is no appeal circumstances permit, be offered for other carrier which service the excluded from the decision of the district director. deportation to the master, commanding aliens point of embarkation. officer, purser, person in charge, agent, (b) Place to which deported. Any alien §§ 241.13±241.19 [Reserved] owner, or consignee of the vessel or (other than an alien crew member or an aircraft on which the alien is to be alien who boarded an aircraft or vessel Subpart BÐDeportation of Excluded deported, as determined by the district in foreign contiguous territory or an Aliens (for hearings commenced prior director, with a written notice adjacent island) who is ordered to April 1, 1997) specifying the cause of exclusion, the excluded shall be deported to the § 241.20 Proceedings commenced prior to class of travel in which such alien country where the alien boarded the April 1, 1997. arrived and is to be deported, and with vessel or aircraft on which the alien the return of any documentation that Subpart B of 8 CFR part 241 applies arrived in the United States. If that will assist in effecting his or her to exclusion proceedings commenced country refuses to accept the alien, the deportation. If special care and attention prior to April 1, 1997. All references to alien shall be deported to: are required, the provisions of § 241.10 the Act contained in this subpart are (1) The country of which the alien is shall apply. a subject, citizen, or national; references to the Act in effect prior to (b) Failure of the carrier to accept for April 1, 1997. (2) The country where the alien was removal an alien who has been ordered born; § 241.21 Stay of deportation of excluded excluded and deported shall result in (3) The country where the alien has a alien. the carrier being assessed any costs residence; or The district director in charge of the incurred by the Service for detention (4) Any country willing to accept the port of arrival may stay the immediate after the carrier’s failure to accept the alien. deportation of an excluded alien alien for removal including the cost of (c) Contiguous territory and adjacent pursuant to sections 237 (a) and (d) of any transportation. The User Fee islands. Any alien ordered excluded the Act under such conditions as he or Account shall not be assessed for who boarded an aircraft or vessel in she may prescribe. expenses incurred because of the foreign contiguous territory or in any carrier’s violation of the provisions of adjacent island shall be deported to § 241.22 Notice to surrender for section 237 of the Act and this such foreign contiguous territory or deportation. paragraph. The Service will, at the adjacent island is the alien is a native, An alien who has been finally carrier’s option, retain custody of the citizen, subject or national of such excluded pursuant to 8 CFR part 240, excluded alien for an additional 7 days foreign contiguous territory or adjacent Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 505 island, or if the alien has a residence in purposes of this part, and order of Authority: 8 U.S.C. 1101, 1103, 1182, 1255; such foreign contiguous territory or deportation is final and subject to 8 CFR part 2. adjacent island. Otherwise, the alien execution upon the date when any of 115. 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 order paragraph (c)(9); at a land border on foot shall be right to appeal; d. Adding a new paragraph (c)(8); deported in the same manner as if the (3) The Board of Immigration Appeals e. Revising newly redesignated alien had boarded a vessel or aircraft in enters and order of deportation on paragraph (c)(9) introductory text, foreign contiguous territory. appeals, without granting voluntary f. Revising newly redesignated departure or other relief; or paragraphs (c)(9)(i) through (c)(9)(iii); §§ 241.26±241.29 [Reserved] (4) A Federal district or appellate and by Subpart CÐDeportation of Aliens in court affirms an administrative order of g. Revising paragraph (f), to read as the United States (For Hearings deportation in a petition for review or follows: Commenced Prior to April 1, 1997) habeas corpus action. (b) Service of decision. In the case of § 245.1 Eligibility. § 241.30 Proceedings commenced prior to an order entered by any of the * * * * * April 1, 1997. authorities enumerated above, the order (c) * * * Subpart C of 8 CFR part 241 applies shall be executed no sooner than 72 (8) Any arriving alien who is in to deportation proceedings commenced hours after service of the decision, removal proceedings pursuant to section prior to April 1, 1997. All references to regardless of whether the alien is in 235(b)(1) or section 240 of the Act; and the Act contained in this subpart are Service custody, provided that such (9) Any alien who seeks to adjust references to the Act in effect prior to period may be waived on the knowing status based upon a marriage which April 1, 1997. and voluntary request of the alien. occurred on or after November 10, 1986, Nothing in this paragraph shall be and while the alien was in exclusion, § 241.31 Final order of deportation. construed, however, to preclude deportation, or removal proceedings, or Except as otherwise required by assumption of custody by the Service at judicial proceedings relating thereto. section 242(c) of the Act for the specific the time of issuance of the final order. (i) Commencement of proceedings. purposes of that section, an order of The period during which the alien is in deportation, including an alternate PART 242Ð[REMOVED AND deportation, exclusion, or removal order of deportation coupled with an RESERVED] proceedings or judicial proceedings order of voluntary departure, made by relating thereto, commences: the immigration judge in proceedings 108. Part 242 is removed and (A) With the issuance of the Form I– under 8 CFR part 240 shall become final reserved. 221, Order to Show Cause and Notice of upon dismissal of an appeal by the Hearing prior to June 20, 1991; PART 243Ð[REMOVED AND (B) With the filing of a Form I–221, Board of Immigration Appeals, upon RESERVED] waiver of appeal, or upon expiration of Order to Show Cause and Notice of the time allotted for an appeal when no 109. Part 243 is removed and Hearing, issued on or after June 20, appeal is taken; of, if such an order is reserved. 1991, with the Immigration Court; issued by the Board or approved by the (C) With the issuance of Form I–122, Board upon certification, it shall be final PART 244ÐTEMPORARY PROTECTED Notice to Applicant for Admission as of the date of the Board’s decision. STATUS FOR NATIONALS OF Detained for Hearing Before DESIGNATED STATES Immigration Judge, prior to April 1, § 241.32 Warrant of deportation. 1997, A Form I–205, Warrant of 110. The heading for part 244 is (D) With the filing of a Form I–862, Deportation, based upon the final revised as set forth above. Notice to Appear, with the Immigration administrative order of deportation in 111. The authority citation for part Court, or the alien’s case shall be issued by a 244 is revised to read as follows: (E) With the issuance and service of district director. The director shall Authority: 8 U.S.C. 1103, 1254, 1254a note. Form I–860, Notice and Order of exercise the authority contained in such Expedited Removal. §§ 244.1 and 244.2 [Removed] 243 of the Act to determine at whose (ii) Termination of proceedings. The expense the alien shall be deported and 112. Sections 244.1 and 244.2 are period during which the alien is in whether his or her mental or physical removed. exclusion, deportation, or removal condition requires personal care and §§ 244.3 through 244.22 [Redesignated as proceedings, or judicial proceedings attention en route to his or her §§ 244.1 through 244.20] relating thereto, terminates: destination. (A) When the alien departs from the 113. Newly redesignated §§ 244.3 United States while an order of § 241.33 Expulsion. through 244.22 are further redesignated exclusion, deportation, or removal is (a) Execution of order. Except in the as §§ 244.1 through 244.20, respectively. outstanding or before the expiration of exercise of discretion by the district PART 245ÐADJUSTMENT OF STATUS the voluntary departure time granted in director, and for such reasons as are set TO THAT OF PERSON ADMITTED FOR connection with an alternate order of forth in § 212.5(a) of this chapter, once PERMANENT RESIDENCE deportation or removal; an order of deportation becomes final, (B) When the alien is found not to be an alien shall be taken into custody and 114. The authority citation for part inadmissible or deportable from the the order shall be executed. For the 245 is revised to read as follows: United States; 506 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

(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 application, an Immigration Appeals; apply to the director having jurisdiction 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 consideration was given (other than to permit the applicant’s absence and arriving alien, retains the right to renew an attorney for assistance in preparation return to pursue the previously filed his or her application in proceedings of a lawful petition) for the filing of a adjustment application. under 8 CFR part 240. Also, an petition. applicant who is a parolee and meets * * * * * the two conditions described in (4) * * * * * * * * § 245.2(a)(1) may renew a denied (ii) Under section 245 of the Act. The (f) Concurrent applications to application in proceedings under 8 CFR departure from the United States of an overcome grounds of inadmissibility. part 240 to determine admissibility. Except as provided in 8 CFR parts 235 applicant who is under exclusion, deportation, or removal proceedings * * * * * and 249, an application under this part (c) Application under section 214(d) shall be the sole method of requesting shall be deemed an abandonment of the application constituting grounds for of the Act. An application for the exercise of discretion under sections permanent resident status pursuant to termination of the proceeding by reason 212 (g), (h), (i), and (k) of the Act, as section 214(d) of the Act shall be filed of the departure. The departure of an they relate to the inadmissibility of an on Form I–485 with the director having applicant who is not under exclusion, alien in the United States. No fee is jurisdiction over the applicant’s place of deportation, or removal proceedings required for filing an application to residence. A separate application shall shall be deemed an abandonment of his overcome the grounds of inadmissibility be filed by each applicant. If the or her application constituting grounds of the Act if filed concurrently with an application is approved, the director for termination, unless the applicant application for adjustment of status shall record the lawful admission of the was previously granted advance parole under the provisions of the Act of applicant as of the date of approval. The by the Service for such absence, and October 28, 1977, and of this part. applicant shall be notified of the was inspected upon returning to the * * * * * decision and, if the application is United States. If the application of an 116. Section 245.2 is amended by: denied, of the reasons therefor. No individual granted advance parole is a. Revising paragraph (a)(1); appeal shall lie from the denial of an subsequently denied, the applicant will b. Revising paragraph (a)(4)(ii); application by the director but such be treated as an applicant for admission, c. Revising paragraph (a)(5) (ii) and denial shall be without prejudice to the and subject to the provisions of sections (iii); and by alien’s right to renew his or her 212 and 235 of the Act. d. Revising paragraph (c), to read as application in proceedings under 8 CFR follows: * * * * * part 240. (5) * * * 117. Section 245.5 is amended by § 245.2 Application. (ii) Under section 245 of the Act. If the revising the first sentence to read as (a) General. (1) Jurisdiction. An alien application is approved, the applicant’s follows: who believes he or she meets the permanent residence shall be recorded eligibility requirements of section 245 of as of the date of the order approving the § 245.5 Medical examination. the Act or section 1 of the Act of adjustment of status. An application for Pursuant to section 232(b) of the Act, November 2, 1966, and § 245.1 shall adjustment of status, as a preference an applicant for adjustment of status Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 507 shall be required to have a medical alien was established prior to the a participant in Nazi persecution or examination by a designated civil approval of the principal’s adjustment genocide as described in section surgeon, whose report setting forth the of status application may be accorded 212(a)(3)(E) of the Act; findings of the mental and physical the derivative priority date and * * * * * condition of the applicant, including preference category of the principal (c) Waivers of inadmissibility. An compliance with section 212(a)(1)(A)(ii) alien, in accordance with the provisions alien seeking to adjust status pursuant of the Act, shall be incorporated into the of section 203(d) of the Act. The spouse to the provisions of section 101(a)(15)(S) record.* * * or child may use the priority date and of the Act may not be denied adjustment 118. Section 245.8 is amended by category when it becomes current, in of status for conduct or a condition that: revising paragraph (e), to read as accordance with the limitations set forth follows: in sections 201 and 202 of the Act. * * * * * Persons who are unable to maintain (h) Removal under section 237 of the § 245.8 Adjustment of status as a special lawful nonimmigrant status in the Act. Nothing in this section shall immigrant under section 101(a)(27)(K) of the prevent an alien adjusted pursuant to Act. United States and are not immediately eligible to apply for adjustment of status the terms of these provisions from being * * * * * may request voluntary departure removed for conviction of a crime of (e) Removal provisions of section 237 pursuant to 8 CFR part 240. moral turpitude committed within 10 of the Act. If the Service is made aware 120. Section 245.10 is amended by: years after being provided lawful by notification from the appropriate a. Revising paragraphs (a)(3) and (6); permanent residence under this section executive department or by any other and by or for any other ground under section means that a section 101(a)(27)(K) b. Revising introductory text in 237 of the Act. special immigrant who has already been paragraph (b), to read as follows: (i) Denial of application. In the event granted permanent residence fails to § 245.10 Adjustment of status upon the district decides to deny an complete his or her total active duty application on Form I–485 and an service obligation for reasons other than payment of additional sum under Public Law 103±317. approved Form I–854 to allow an S an honorable discharge, the alien may nonimmigrant to adjust status, the become subject to the removal (a) * * * (3) Is not inadmissible from the Assistant Attorney General, Criminal provisions of section 237 of the Act, United States under any provision of Division, and the relevant LEA shall be provided the alien is in one or more of section 212 of the Act, or all grounds for notified in writing to that effect. The the classes of deportable aliens specified inadmissibility have been waived; Assistant Attorney General, Criminal in section 237 of the Act. The Service Division, shall concur in or object to shall obtain current Form DD–214, * * * * * (6) Remits the sum specified in that decision. Unless the Assistant Certificate of Release or Discharge from Attorney General, Criminal Division, Active Duty, from the appropriate section 245(i) of the Act, unless payment of the sum is waived under objects within 7 days, he or she shall be executive department for verification of deemed to have concurred in the the alien’s failure to maintain eligibility. section 245(i) of the Act; and * * * * * decision. In the event of an objection by * * * * * the Assistant Attorney General, 119. Section 245.9 is amended by (b) Payment of additional sum. An applicant filing under the provisions of Criminal Division, the matter will be revising paragraphs (d) and (m), to read expeditiously referred to the Deputy as follows: section 245(i) of the Act must pay the standard adjustment of status filing fee, Attorney General for a final resolution. § 245.9 Adjustment of Status of Certain as shown on Form I–485 and contained In no circumstances shall the alien or Nationals of the People's Republic of China in § 103.7(b)(1) of this chapter. The the relevant LEA have a right of appeal under Public Law 102±404. applicant must also pay the additional from any decision to deny. A denial of * * * * * sum specified in section 245(i) of the an adjustment application under this (d) Waivers of inadmissibility under Act, unless at the time the application paragraph may not be renewed in section 212(a) of the Act. An applicant for adjustment of status is filed, the subsequent removal proceedings. for the benefits of the adjustment of alien is: PART 246ÐRESCISSION OF status provisions of Pub. L. 102–404 is * * * * * ADJUSTMENT OF STATUS automatically exempted from 121. Section 245.11 is amended by: compliance with the requirements of a. Revising paragraph (a)(4)(ii)(B); 122. The authority citation for part sections 212(a)(5) and 212(a)(7)(A) of b. Revising paragraph (b)(1)(iii); 246 is revised to read as follows: the Act. A Pub. L. 102–404 applicant c. Revising the introductory text in may also apply for one or more waivers paragraph (c); and by Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2. of inadmissibility under section 212(a) d. Revising paragraphs (h) and (i), to of the Act, except for inadmissibility read as follows: § 246.8 [Removed] under section 212(a)(2)(C), 212(a)(3)(A), § 245.11 Adjustment of aliens in S 123. Section 246.8 is removed. 212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E) nonimmigrant classification. of the Act. (a) * * * PART 248ÐCHANGE OF * * * * * (4) * * * NONIMMGRANT CLASSIFICATION (m) Effect of enactment on family (ii) * * * members other than qualified family (B) Be admissible to the United States 124. The authority citation for part members. The adjustment of status as an immigrant, unless the ground of 248 continues to read as follows: benefits and waivers provided by Pub. inadmissibility has been waived; L. 102–404 do not apply to a spouse or Authority: 8 U.S.C. 1101, 1103, 1184, 1187, * * * * * 1258; 8 CFR part 2. child who is not a qualified family (b) * * * member as defined in paragraph (c) of (1) * * * 125. Section 248.1 is amended by this section. However, a spouse or child (iii) The family member is not revising paragraph (b)(4) to read as whose relationship to the principal inadmissible from the United States as follows: 508 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

§ 248.1 Eligibility. (2) Longshore work notations. The workers in the port and an attestation * * * * * master or agent of the vessel shall has been filed with the Secretary of (b) * * * indicate in writing immediately below Labor; (4) The alien is not the subject of the name of the alien listed on the Form (C) An attestation that was previously removal proceedings under 8 CFR part I–418 whether or not crewmen aboard filed is still valid and the continues to 240. the vessel will be used to perform comply with the conditions stated in * * * * * longshore work at any United States that attestation; or port before the vessel departs the United (D) The longshore work consists of PART 249ÐCREATION OF RECORDS States. operating an automated, self-unloading OF LAWFUL ADMISSION FOR (i) If no longshore work will be conveyor belt or a vacuum-actuated PERMANENT RESIDENCE performed, no further notation regarding system. longshore work is required. (v) If longshore work will be 126. The authority citation for part (ii) If longshore work will be performed under the reciprocity 249 is revised to read as follows: performed, the master or agent shall exception, the master or agent shall note Authority: 8 U.S.C. 1103, 1182, 1259; 8 note which exception listed in section on the manifest that the work will be CFR part 2. 258 of the Act permits the work. The done under the reciprocity exception, 127. Section 249.2 is amended by exceptions are: and will note the nationality of the revising the first sentence in paragraph (A) The hazardous cargo exception; vessel’s registry and the nationality or (a) and by revising paragraph (b), to read (B) The prevailing practice exception nationalities of the holders of a majority as follows: in accordance with a port’s collective of the ownership interest in the vessel. bargaining agreements; (3) Exception for certain Great Lakes § 249.2 Application. (C) The prevailing practice exception vessels. (i) A manifest shall not be (a) Jurisdiction. An application by an in a port where there is no collective required for a vessel of United States, alien, other than an arriving alien, who bargaining agreement, but for which the Canadian, or British registry engaged has been served with a notice to appear vessel files an attestation; solely in traffic on the Great Lakes or the or warrant of arrest shall be considered (D) The prevailing practice exception St. Lawrence River and connecting only in proceedings under 8 CFR part for automated vessels; and waterways, herein designated as a Great 240. * * * (E) The reciprocity exception. Lakes vessel, unless: (b) Decision. The applicant shall be (iii) If longshore work will be (A) The vessel employs nonimmigrant notified of the decision and, if the performed under the hazardous cargo crewmen who will do longshore work at application is denied, of the reasons exception, the vessel must either be a a port in the United States; or therefor. If the application is granted, a tanker or be transporting dry bulk cargo (B) The vessel employs crewmen of Form I–551, showing that the applicant that qualifies as hazardous. All tankers other than United States, Canadian, or has acquired the status of an alien qualify for the hazardous cargo British citizenship. lawfully admitted for permanent exception, except for a tanker that has (ii) In either situation, the master shall residence, shall not be issued until the been gas-freed to load non-hazardous note the manifest in the manner applicant surrenders any other dry bulk commodities. prescribed in paragraph (a)(2) of this document in his or her possession (A) To invoke the exception for section. evidencing compliance with the alien tankers, the master or agent shall note (iii) After submission of a manifest on registration requirements of former or on the manifest that the vessel is a the first voyage of a calendar year, a existing law. No appeal shall lie from qualifying tanker. manifest shall not be required on the denial of an application by the (B) If the vessel is transporting dry subsequent arrivals unless a district director. However, an alien, bulk hazardous cargo, the master or nonimmigrant crewman of other than other than an arriving alien, may renew agent shall note on the manifest that the Canadian or British citizenship is the denied application in proceedings vessel’s dry bulk cargo is hazardous and employed on the vessel who was not under 8 CFR part 240. shall show the immigration officer the aboard and listed on the last prior dangerous cargo manifest that is signed manifest, or a change has occurred PART 251ÐARRIVAL MANIFESTS AND by the master or an authorized regarding the performance of longshore LISTS: SUPPORTING DOCUMENTS representative of the owner, and that work in the United States by under 46 CFR 148.02 must be kept in a nonimmigrant crewmen, or a change has 128. The authority citation for part conspicuous place near the bridge occurred in the exception that the 251 is revised to read as follows: house. master or agent of the vessel wishes to Authority: 8 U.S.C. 1103, 1182, 1221, 1281, (iv) If longshore work will be invoke which was not noted on the last 1282, 8 CFR part 2. performed under the prevailing practice prior manifest. 129. Section 251.1 is revised to read exception, the master or agent shall note (4) The master or agent of a vessel that as follows: on the manifest each port at which only bunkers at a United States port en longshore work will be performed under route to another United States port shall § 251.1 Arrival manifests and lists. this exception. Additionally, for each annotate Form I–418 presented at the (a) Vessels. (1) General. The master or port the master or agent shall note either onward port to indicate the time, date, agent of every vessel arriving in the that: and place of bunkering. United States from a foreign place or an (A) The practice of nonimmigrant (5) If documentation is required to outlying possession of the United States crewmen doing longshore work is in support an exception, as described in shall present to the immigration officer accordance with all collective § 258.2 of this chapter, it must at the port where the immigration bargaining agreements covering 30 accompany the manifest. inspection is performed a manifest of all percent or more of the longshore (b) Aircraft. The captain or agent of crewmen on board on Form I–418, workers in the port; every aircraft arriving in the United Passenger List and Crew List, in (B) The port has no collective States from a foreign place or from an accordance with the instructions bargaining agreement covering 30 outlying possession of the United States, contained thereon. percent or more of the longshore except an aircraft arriving in the United Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 509

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 131. 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 133. 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 post 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 of United States citizen crewmembers 418 completed in accordance with the engaged directly or indirectly in the and total number of alien crewmembers. instructions on the form. Submission of carriage of persons or cargo for hire. (c) Additional documents. The a Form I–418 that lacks any required master, captain, or agent shall prepare endorsement shall be regarded as lack of PART 252ÐLANDING OF ALIEN as a part of the manifest, when one is compliance with section 251(c) of the CREWMEN required for presentation to an Act. 134. The authority citation for part immigration officer, a completely (b) Exception for certain Great Lakes 252 is revised to read as follows: executed set of Forms I–95, Conditional vessels. The required list need not be Authority: 8 U.S.C. 1103, 1184, 1258, Landing Permit, for each nonimmigrant submitted for Canadian or British 1281, 1282; 8 CFR part 2. alien crewman on board, except: crewmembers of Great Lakes vessels (1) A Canadian or British citizen described in § 251.1(a)(3). 135. Section 252.1 is amended by crewman serving on a vessel plying 132. Section 251.4 is revised to read revising paragraphs (a) through (c) to solely between Canada and the United as follows: read as follows: States; or (2) A nonimmigrant crewman who is § 251.4 Departure manifests and lists for § 252.1 Examination of crewmen. aircraft. in possession of an unmutilated Form I– (a) Detention prior to examination. 184, Alien Crewman Landing Permit (a) United States Customs Service All persons employed in any capacity and Identification Card, or an Form 7507 or International Civil on board any vessel or aircraft arriving unmutilated Form I–95 with space for Aviation Organization’s General in the United States shall be detained on additional endorsements previously Declaration. The captain or agent of board the vessel or at the airport of issued to him or her as a member of the every aircraft departing from the United arrival by the master or agent of such crew of the same vessel or an aircraft of States for a foreign place or an outlying vessel or aircraft until admitted or the same line on his or her last prior possession of the United States, except otherwise permitted to land by an arrival in the United States, following on a flight departing for and terminating officer of the Service. which he or she departed from the in Canada, shall submit to the (b) Classes of aliens subject to United States as a member of the crew immigration officer at the port from examination under this part. The of the same vessel or an aircraft of the which such aircraft is to depart a examination of every nonimmigrant same line. completed United States Customs alien crewman arriving in the United 130. Section 251.2 is revised to read Service Form 7507 or the International States shall be in accordance with this as follows: Civil Aviation Organization’s General part except that the following classes of Declaration. The form shall contain a persons employeed on vessels or aircraft § 251.2 Notification of illegal landings. list of all alien crewmen on board, shall be examined in accordance with As soon as discovered, the master or including alien crewmen who arrived in the provisions of 8 CFR parts 235 and agent of any vessel from which an alien the United States as crewmen on an 240: crewman has illegally landed or aircraft of the same line and who are (1) Canadian or British citizen deserted in the United States shall departing as passengers. The surname, crewmen serving on vessels plying inform the immigration officer in charge given name, and middle initial of each solely between Canada and the United of the port where the illegal landing or such alien crewman listed shall be States; or desertion occurred, in writing, or the shown. In addition, the captain or agent (2) Canadian or British citizen name, nationality, passport number and, of the craft shall indicate the total crewmen of aircraft arriving in a State if known, the personal description, number of alien crewmembers and the of the United States directly from 510 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

Canada on flights originating in that removed within 5 years of the date of surrendered to an immigration officer. country. The crew of a vessel arriving at landing, removal of the crewman shall No appeal shall lie from the revocation a United States port that may not be at the expense of the owner of the of Form I–184. require inspection by or clearance from vessel. In the case of a crewman ordered 139. Section 252.5 is revised to read the United States Customs Service is, removed more than 5 years after the as follows: nevertheless, subject to examination date of landing, removal shall be at the under this part; however, the master of expense of the appropriation for the § 252.5 Special procedures for deserters such a vessel is not required to present enforcement of the Act. from Spanish or Greek ships of war. Form I–95 for any crewman who is not 137. Section 252.3 is revised to read (a) General. Under E.O. 11267 of an applicant for a conditional landing as follows: January 19, 1966 (31 FR 807) and 28 permit. CFR 0.109, and E.O. 11300 of August 17, (c) Requirements for landing permits. § 252.3 Great Lakes vessels and tugboats 1966 (31 FR 11009), and 28 CFR 0.110, Every alien crewman applying for arriving in the United States from Canada; the Commissioner and immigration special procedures. landing privileges in the United States officers (as defined in § 103.1(j) of this must make his or her application in (a) United States vessels and tugboats. chapter) are designated as ‘‘competent person before an immigration officer, An immigration examination shall not national authorities’’ on the part of the present whatever documents are be required of any crewman aboard a United States within the meaning of required, be photographed and Great Lakes vessel of United States Article XXIV of the 1903 Treaty of fingerprinted as the district director may registry or a tugboat of United States Friendship and General Relations require, and establish to the satisfaction registry arriving from Canada at a port between the United States and Spain (33 of the immigration officer that he or she of the United States who has been Stat. 2105, 2117), and ‘‘local is not inadmissible under any provision examined and admitted by an authorities’’ and ‘‘competent officers’’ of the law and is entitled clearly and immigration officer as a member of the on the part of the United States within beyond doubt to landing privileges in crew of the same vessel or tugboat or of the meaning of Article XIII of the the United States. any other vessel or tugboat of the same Convention between the United States 136. Section 252.2 is revised to read company during the current calendar and Greece (33 Stat. 2122, 2131). as follows: year. (b) Application for restoration. On (b) Canadian or British vessels or application of a Consul General, Consul, § 252.2 Revocation of conditional landing tugboats. An alien crewman need not be permits; removal. Vice-Consul, or Consular-Agent of the presented for inspection if the alien Spanish or Greek Government, made in (a) Revocation and removal while crewman: vessel is in the United States. A writing pursuant to Article XXIV of the (1) Serves aboard a Great Lakes vessel treaty, or Article XIII of the Convention, crewman whose landing permit is of Canadian or British registry or aboard subject to revocation pursuant to section respectively, stipulating for the a tugboat of Canadian or British registry restoration of crewmen deserting, 252(b) of the Act may be taken into arriving at a United States port-of-entry custody by any immigration officer stating that the person named therein from Canada; has deserted from a ship of war of that without a warrant of arrest and be (2) Seeks admission for a period of transferred to the vessel of arrival, if the government, while in any port of the less than 29 days; United States, and on proof by the vessel is in any port in the United States (3) Has, during the current calendar exhibition of the register, crew list, or and has not departed foreign since the year, been inspected and admitted by an official documents of the vessel, or a crewman was issued his or her immigration officer as a member of the copy or extract therefrom, duly certified, conditional landing permit. Detention crew of the same vessel or tugboat, or that the person named belonged, at the and removal of the crewman shall be at of any other vessel or tugboat of the time of desertion, to the crew of such the expense of the transportation line on same company; vessel, such person shall be taken into which the crewman arrived. Removal (4) Is either a British or Canadian custody by any immigration officer may be effected on the vessel of arrival citizen or is in possession of a valid without a warrant of arrest. Written or, if the master of the vessel has Form I–95 previously issued to him or notification of charges shall be served requested in writing, by alternate means her as a member of the crew of the same on the alien when he or she is taken into if removal on the vessel of arrival is vessel or tugboat, or of any vessel or custody or as soon as practical impractical. tugboat of the same company; thereafter. (b) Revocation and removal after (5) Does not request or require landing vessel has departed the United States. A privileges in the United States beyond (c) Examination. Within a reasonable crewman who was granted landing the time the vessel or tugboat will be in period of time after the arrest, the alien privileges prior to April 1, 1997, and port; and, shall be accorded an examination by the who has not departed foreign on the (6) Will depart to Canada with the district director, acting district director, vessel of arrival, or on another vessel or vessel or tugboat. or the deputy district director having aircraft if such permission was granted 138. Section 252.4 is revised to read jurisdiction over the place of arrest. The pursuant to § 252.1(f), is subject to as follows: alien shall be informed that he or she removal proceedings under section 240 may have the assistance of or be of the Act as an alien deportable § 252.4 Permanent landing permit and represented by a counsel or pursuant to section 237(a)(1)(C)(i) of the identification card. representative of his or her choice Act. A crewman who was granted A Form I–184 is valid until revoked. qualified under 8 CFR part 292 without landing privileges on or after April 1, It shall be revoked when an immigration expense to the Government, and that he 1997, and who has not departed foreign officer finds that the crewman is in the or she may present such evidence in his on the vessel of arrival, or on another United States in willful violation of the or her behalf as may be relevant to this vessel or aircraft if such permission was terms and conditions of his or her proceeding. If, upon the completion of granted pursuant to § 252.1(f), shall be permission to land, or that he or she is such examination, it is determined that: removed from the United States without inadmissible to the United States. On (1) The individual sought by the a hearing. In either case, if the alien is revocation, the Form I–184 shall be Spanish or Greek authorities had Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 511 deserted from a Spanish or Greek ship in that country on account of race, pending (including any period when an of war in a United States port; religion, nationality, membership in a administrative appeal or judicial review (2) The individual actually arrested particular social group, or political is pending) and shall expire on a and detained is the person sought; opinion, is eligible to apply for asylum specified date; (3) The individual is not a citizen of or withholding of removal under 8 CFR * * * * * the United States; and part 208. Service officers shall take (12) [Reserved] (4) The individual had not previously particular care to ensure the provisions been arrested for the same cause and set * * * * * of § 208.5(b) of this chapter regarding (18) An alien against whom a final at liberty because he or she had been special duties toward aliens aboard order of deportation or removal exists detained for more than 3 months, or certain vessels are closely followed. and who is released on an order of more than 2 months in the case of a * * * * * supervision under the authority deserter from a Greek ship of war, from contained in section 241(a)(3) of the Act the day of his or her arrest without the PART 274AÐCONTROL OF may be granted employment Spanish or Greek authorities having EMPLOYMENT OF ALIENS authorization in the discretion of the found an opportunity to send him or her district director only if the alien cannot home, the individual shall be served 142. The authority citation for part be removed due to the refusal of all with a copy of the findings, from which 274a continues to read as follows: countries designated by the alien or no appeal shall lie, and be surrendered Authority: 8 U.S.C. 1101, 1103, 1324a; 8 under section 241 of the Act to receive forthwith to the Spanish or Greek CFR part 2. the alien, or because the removal of the authorities if they are prepared to 143. Section 274a.12 is amended by: alien is otherwise impracticable or remove him or her from the United a. Revising paragraphs (a)(10) and contrary to the public interest. States. On written request of the (12); Additional factors which may be Spanish or Greek authorities, the b. Revising paragraphs (c)(8) and (10); considered by the district director in individual shall be detained, at their c. Removing and reserving paragraph adjudicating the application for expense, for a period not exceeding 3 (c)(12); and by employment authorization include, but months or 2 months, respectively, from d. Revising paragraph (c)(18), to read are not limited to, the following: the day of arrest to afford opportunity to as follows: (i) The existence of economic arrange for his or her departure from the necessity to be employed; United States. § 274a.12 Classes of aliens authorized to accept employment. (ii) The existence of a dependent (d) Timely departure not effected. If spouse and/or children in the United the Spanish authorities delay in sending (a) * * * States who rely on the alien for support; the individual home for more than 3 (10) An alien granted withholding of and months, or if the Greek authorities delay deportation or removal for the period of (iii) The anticipated length of time in sending the individual home for more time in that status, as evidenced by an before the alien can be removed from than 2 months, from the day of his or employment authorization document the United States. her arrest, the individual shall be dealt issued by the Service; * * * * * with as any other alien unlawfully in * * * * * the United States under the removal (12) An alien granted Temporary PART 286ÐIMMIGRATION USER FEE provisions of the Act, as amended. Protected Status under section 244 of (e) Commission of crime. If the the Act for the period of time in that 144. The authority citation for part individual has committed any crime or status, as evidenced by an employment 286 continues to read as follows: offense in the United States, he or she authorization document issued by the Authority: 8 U.S.C. 1103, 1356; 8 CFR part shall not be placed at the disposal of the Service; or 2. consul until after the proper tribunal * * * * * 145. In § 286.9, paragraph (b)(3) is having jurisdiction in his or her case (c) * * * revised to read as follows: shall have pronounced sentence, and (8) An alien who has filed a complete such sentence shall have been executed. application for asylum or withholding § 286.9 Fee for processing applications and issuing documentation at land border PART 253ÐPAROLE OF ALIEN of deportation or removal pursuant to 8 Ports-of-Entry. CREWMEN CFR part 208, whose application has not been decided, and who is eligible to * * * * * (b) * * * 140. The authority citation for part apply for employment authorization (3) A Mexican national in possession 253 is revised to read as follows: under § 208.7 of this chapter because of a valid nonresident alien border the 150-day period set forth in that Authority: 8 U.S.C. 1103, 1182, 1282, 1283, crossing card or nonimmigrant B–1/B–2 section has expired. Employment 1285; 8 CFR part 2. visa who is required to be issued Form authorization may be granted according 141. In § 253.1, paragraph (f) is I–94, Arrival/Departure Record, to the provisions of § 208.7 of this revised to read as follows: pursuant to § 235.1(f) of this chapter, chapter in increments to be determined must remit the required fee for issuance § 253.1 Parole. by the Commissioner and shall expire of Form I–94 upon determination of on a specified date; * * * * * admissibility. (f) Crewman, stowaway, or alien * * * * * * * * * * removable under section 235(c) alleging (10) An alien who has filed an persecution. Any alien crewman, application for suspension of PART 287ÐFIELD OFFICERS; stowaway, or alien removable under deportation under section 243 of the Act POWERS AND DUTIES section 235(c) of the Act who alleges or cancellation of removal pursuant to that he or she cannot return to his or her section 240A of the Act. Employment 146. The authority citation for part country of nationality or last habitual authorization shall be granted in 287 continues to read as follows: residence (if not a national of any increments not exceeding one year Authority: 8 U.S.C. 1103, 1182, 1225, 1226, country) because of fear of persecution during the period the application is 1251, 1252, 1357; 8 CFR part 2. 512 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

147. Section 287.3 is revised to read § 287.4 Subpoena. (v) Adjudications officers; as follows: * * * * * (vi) Supervisory and managerial (d) Invoking aid of court. If a witness personnel who are responsible for § 287.3 Disposition of cases of aliens supervising the activities of those arrested without warrant. neglects to appear and testify as directed by the subpoena served upon him or her officers listed above; and (a) Examination. An alien arrested in accordance with the provisions of (vii) Immigration officers who need without a warrant of arrest under the this section, the officer or immigration the authority to arrest aliens under authority contained in section 287(a)(2) judge issuing the subpoena shall request section 287(a)(2) of the Act in order to of the Act will be examined by an the United States Attorney for the effectively accomplish their individual officer other than the arresting officer. If district in which the subpoena was missions and who are designated, no other qualified officer is readily issued to report such neglect or refusal individually or as a class, by the available and the taking of the alien to the United States District Court and Commissioner. before another officer would entail to request such court to issue an order (2) Arrests of persons under section unnecessary delay, the arresting officer, requiring the witness to appear and 287(a)(4) of the Act for felonies if the conduct of such examination is a testify and to produce the books, papers, regulating the admission or removal of part of the duties assigned to him or her, or documents designated in the aliens. The following immigration may examine the alien. subpoena. officers who have successfully (b) Determination of proceedings. If 149. In § 287.5, paragraphs (b) through completed basic immigration law the examining officer is satisfied that (f) are revised to read as follows: enforcement training are hereby there is prima facie evidence that the authorized and designated to exercise arrested alien was entering, attempting § 287.5 Exercise of power by immigration the arrest power conferred by section to enter, or is present in the United officers. 287(a)(4) of the Act and in accordance States in violation of the immigration * * * * * with § 287.8(c): laws, the examining officer will refer the (b) Power and authority to patrol the (i) Border patrol agents, including case to an immigration judge for further border. The following immigration aircraft pilots; inquiry in accordance with 8 CFR parts officers who have successfully (ii) Special agents; 235, 239, or 240, order the alien completed basic immigration law (iii) Deportation officers; removed as provided for in section enforcement training are hereby (iv) Immigration inspectors; 235(b)(1) of the Act and § 235.3(b) of authorized and designated to exercise (v) Adjudications officers; this chapter, or take whatever other the power to patrol the border conferred (vi) Supervisory and managerial action may be appropriate or required by section 287(a)(3) of the Act: personnel who are responsible for under the laws or regulations applicable (1) border patrol agents, including supervising the activities of those to the particular case. aircraft pilots; officers listed above; and (vii) Immigration officers who need (c) Notifications and information. (2) Special agents; (3) Immigration inspectors (seaport the authority to arrest persons under Except in the case of an alien subject to operations only); section 287(a)(4) of the Act in order to the expedited removal provisions of (4) Adjustments officers and effectively accomplish their individual section 235(b)(1)(A) of the Act, all aliens deportation officers when in the missions and who are designated, arrested without warrant and placed in uniform of an immigration inspector individually or as a class, by the formal proceedings under section 238 or and performing inspections or Commissioner with the approval of the 240 of the Act will be advised of the supervising other immigration Deputy Attorney General. reasons for his or her arrest and the right inspectors performing inspections (3) Arrests of persons under section to be represented at no expense to the (seaport operations only); 287(a)(5)(A) of the Act for any offense Government. The examining officer will (5) Supervisory and managerial against the United States. The following provide the alien with a list of the personnel who are responsible for immigration officers who have available free legal services provided by supervising the activities of those successfully completed basic organizations and attorneys qualified officers listed above; and immigration law enforcement training under 8 CFR part 3 and organizations (6) Immigration officers who need the are hereby authorized and designated to recognized under § 292.2 of this chapter authority to patrol the border under exercise the arrest power conferred by that are located in the district where the section 287(a)(3) of the Act in order to section 287(a)(5)(A) of the Act in hearing will be held. The examining effectively accomplish their individual accordance with § 287.8(c): officer shall note on Form I–862 that missions and who are designated, (i) Border patrol agents, including such a list was provided to the alien. individually or as a class, by the aircraft pilots; The officer will also advise the alien Commission. (ii) Special agents; that any statement made may be used (c) Power and authority to arrest. (1) (iii) Deportation officers; against him or her in a subsequent Arrests of aliens under section 287(a)(2) (iv) Immigration inspectors proceeding. of the Act for immigration violations. (permanent full-time immigration (d) Custody procedures. Unless The following immigration officers who inspectors only); voluntary departure has been granted have successfully completed basic (v) Adjudications officers when in the pursuant to subpart C of 8 CFR part 240, immigration law enforcement training uniform of an immigration inspector a determination will be made within 24 are hereby authorized and designated to and performing inspections or hours of the arrest whether the alien exercise the arrest power conferred by supervising other immigration will be continued in custody or released section 287(a)(2) of the Act and in inspectors performing inspections; on bond or recognizance and whether a accordance with § 287.8(c): (vi) Supervisory and managerial notice to appear and warrant of arrest as (i) Border patrol agents, including personnel who are responsible for prescribed in 8 CFR parts 236 and 239 aircraft pilots; supervising the activities of those will be issued. (ii) Special agents; officers listed above; and 148. In § 287.4, paragraph (d) is (iii) Deportation officers; (vii) Immigration officers who need revised to read as follows: (iv) Immigration inspectors; the authority to arrest persons under Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 513 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. personnel who are responsible for reasonable grounds to believe that the (i) Section 274(a) of the Act authorizes supervising the activities of those person to be arrested has committed or designated immigration officers, as officers listed above; and is committing such a felony; listed in paragraph (c)(5)(ii) of this (7) Immigration officers who need the (B) The immigration officer is section, to arrest persons who bring in, authority to conduct searches under performing duties relating to the transport, or harbor aliens, or induce section 287(c) of the Act in order to enforcement of the immigration laws at them to enter the United States in effectively accomplish their individual the time of the arrest; violation of law. When making an arrest, missions and who are designated, (C) There is a likelihood of the person the designated immigration officer shall individually or as a class, by the escaping before a warrant can be adhere to the provisions of the Commissioner. obtained of his or her arrest; and enforcement standard governing the (e) Power and authority to execute (D) The immigration officer has been conduct of arrests in § 287.8(c). warrants. (1) Search warrants. The certified as successfully completing a (ii) The following immigration officers following immigration officers who training program that covers such who have successfully completed basic have successfully completed basic arrests and the standards with respect to immigration law enforcement training immigration law enforcement training the enforcement activities of the Service are authorized and designated to are hereby authorized and designated to as defined in § 287.8. exercise the arrest power conferred by exercise the power conferred by section (ii) The following immigration officers section 274(a) of the Act: 287(a) of the Act to execute a search who have successfully completed basic (A) Border patrol agents, including warrant: immigration law enforcement training aircraft pilots; (i) Border patrol agents, including are hereby authorized and designated to (B) Special agents; aircraft pilots; exercise the arrest power conferred by (C) Deportation officers; (ii) Special agents; section 287(a)(5)(B) of the Act and in (D) Immigration inspectors; (iii) Supervisory and managerial accordance with § 287.8(c): (E) Adjudications officers when in the personnel who are responsible for (A) Border patrol agents, including uniform of an immigration inspector supervising the activities of those aircraft pilots; and performing inspections or officers listed above; and (B) Special agents; supervising other immigration (iv) Immigration officers who need the (C) Deportation officers; inspectors performing inspections; authority to execute search warrants (D) Immigration inspectors (F) Supervisory and managerial under section 287(a) of the Act in order (permanent full-time immigration personnel who are responsible for to effectively accomplish their inspectors only); supervising the activities of those individual missions and who are (E) Adjudications officers when in the officers listed above; and designated, individually or as a class, by uniform of an immigration inspector (G) Immigration officers who need the the Commissioner with the approval of and performing inspections or authority to arrest persons under section the Deputy Attorney General. supervising other immigration 274(a) of the Act in order to effectively (2) Issuance of arrest warrants for inspectors performing inspections; accomplish their individual missions immigration violations. A warrant of (F) Supervisory and managerial and who are designated, individually or arrest may be issued only by the personnel who are responsible for as a class, by the Commissioner with the following immigration officers: supervising the activities of those approval of the Deputy Attorney (i) District directors (except foreign); officers listed above; and General. (ii) Deputy district directors (except (G) Immigration officers who need the (6) Custody and transportation of foreign); authority to arrest persons under section previously arrested persons. In addition (iii) Assistant district directors for 287(a)(5)(B) of the Act in order to to the authority to arrest pursuant to a investigations; effectively accomplish their individual warrant of arrest in paragraph (e)(2)(i) of (iv) Deputy assistant district directors missions and who are designated, this section, detention enforcement for investigations; individually or as a class, by the officers who have successfully (v) Assistant district directors for Commissioner with the approval of the completed basic immigration law deportation; Deputy Attorney General. enforcement training are hereby (vi) Deputy assistant district directors (iii) Notwithstanding the authorized and designated to take and for deportation; authorization and designation set forth maintain custody of and transport any (vii) Assistant district directors for in paragraph (c)(4)(ii) of this section, no person who has been arrested by an examinations; immigration officer is authorized to immigration officer pursuant to (viii) Deputy assistant district make an arrest for any felony under the paragraphs (c)(1) through (c)(5) of this directors for examinations; authority of section 287(a)(5)(B) of the section. (ix) Officers in charge (except foreign); 514 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

(x) Assistant officers in charge (except (iv) Supervisory and managerial removing the alien. The detainer is a foreign); personnel who are responsible for request that such agency advise the (xi) Chief patrol agents; supervising the activities of those Service, prior to release of the alien, in (xii) Deputy chief patrol agents; officers listed above; and order for the Service to arrange to (xiii) Associate chief patrol agents; (v) Immigration officers who need the assume custody, in situations when (xiv) Assistant chief patrol agents; authority to execute warrants of arrest gaining immediate physical custody is (xv) Patrol agents in charge; for non-immigration violations under either impracticable or impossible. (xvi) The Assistant Commissioner, section 287(a) of the Act in order to (b) Authority to issue detainers. The Investigations; effectively accomplish their individual following officers are authorized to (xvii) Institutional Hearing Program missions and who are designated, issue detainers: Directors; individually or as a class, by the (1) Border patrol agents, including (xviii) Area Port Directors; Commissioner with the approval of the aircraft pilots; (xix) Port Directors; or Deputy Attorney General. (2) Special agents; (xx) Deputy Port Directors. (f) Power and authority to carry (3) Deportation officers; (3) Service of warrant of arrests for firearms. The following immigration (4) Immigration inspectors; immigration violations. The following officers who have successfully (5) Adjudications officers; immigration officers who have completed basic immigration (6) Supervisory and managerial successfully completed basic enforcement training are hereby personnel who are responsible for immigration law enforcement training authorized and designated to exercise supervising the activities of those are hereby authorized and designated to the power conferred by section 287(a) of officers listed above; and exercise the power pursuant to section the Act to carry firearms provided that (7) Immigration officers who need the 287(a) of the Act to execute warrants of they are individually qualified by authority to issue detainers under arrest for administrative immigration training and experience to handle and section 287(d)(3) of the Act in order to violations issued under section 236 of safely operate the firearms they are effectively accomplish their individual the Act or to execute warrants of permitted to carry, maintain proficiency missions and who are designated criminal arrest issued under the in the use of such firearms, and adhere individually or as a class, by the authority of the United States: to the provisions of the enforcement Commissioner. (c) Availability of records. In order for (i) Border patrol agents, including standard governing the use of force in the Service to accurately determine the aircraft pilots; § 287.8(a): (ii) Special agents; (1) Border patrol agents, including propriety of issuing a detainer, serving (iii) Deportation officers; aircraft pilots; a notice to appear, or taking custody of (iv) Detention enforcement officers (2) Special agents; an alien in accordance with this section, (warrants of arrest for administrative (3) Deportation officers; the criminal justice agency requesting immigration violations only); (4) Detention enforcement officers; such action or informing the Service of (v) Immigration inspectors; (5) Immigration inspectors; a conviction or act that renders an alien (vi) Adjudications officers when in (6) Adjudications officers when in the inadmissible or removable under any the uniform of an immigration inspector uniform of an immigration inspector provision of law shall provide the and performing inspections or and performing inspections or Service with all documentary records supervising other immigration supervising other immigration and information available from the inspectors performing inspections; inspectors performing inspections; agency that reasonably relates to the (vii) Supervisory and managerial (7) Supervisory and managerial alien’s status in the United States, or personnel who are responsible for personnel who are responsible for that may have an impact on conditions supervising the activities of those supervising the activities of those of release. officers listed above; and officers listed above; and (d) Temporary detention at Service (viii) Immigration officers who need (8) Immigration officers who need the request. Upon a determination by the the authority to execute arrest warrants authority to carry firearms under section Service to issue a detainer for an alien for immigration violations under section 287(a) of the Act in order to effectively not otherwise detained by a criminal 287(a) of the Act in order to effectively accomplish their individual missions justice agency, such agency shall accomplish their individual missions and who are designated, individually or maintain custody of the alien for a and who are designated, individually or as a class, by the Commissioner with the period not to exceed 48 hours, as a class, by the Commissioner, for approval of the Deputy Attorney excluding Saturdays, Sundays, and warrants of arrest for administrative General. holidays in order to permit assumption immigration violations, and with the 150. Section 287.7 is revised to read of custody by the Service. approval of the Deputy Attorney as follows: (e) Financial responsibility for General, for warrants of criminal arrest. detention. No detainer issue as a result (4) Service of warrant of arrests for § 287.7 Detainer provisions under section of a determination made under this non-immigration violations. The 287(b)(3) of the Act. chapter shall incur any fiscal obligation following immigration officers who (a) Detainers in general. Detainers are on the part of the Service, until actual have successfully completed basic issued pursuant to sections 236 and 287 assumption of custody by the Service, immigration law enforcement training of the Act and this chapter. Any except as provided in paragraph (d) of are hereby authorized and designated to authorized Service official may at any this section. exercise the power to execute warrants time issue a Form I–247, Immigration of criminal arrest for non-immigration Detainer-Notice of Action, to any other PART 299ÐIMMIGRATION FORMS Federal, State, or local law enforcement violations issued under the authority of 151. The authority citation for part agency. A detainer serves to advise the United States: 299 continues to read as follows: (i) Border patrol agents, including another law enforcement agency that the aircraft pilots; Service seeks custody of an alien Authority: 8 U.S.C. 1101, 1103; 8 CFR part (ii) Special agents; presently in the custody of that agency, 2. (iii) Deportation officers; for the purpose of arresting and 152. Section 299.1 is amended by: Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 515

a. Revising the entries for Forms ‘‘I– b. Removing the entries for Forms ‘‘I– 701’’, ‘‘I–770’’, ‘‘I–771’’, ‘‘I–826’’, ‘‘I– 147’’, ‘‘I–205’’, ‘‘I–246’’, ‘‘I–247’’, ‘‘I– 122’’, ‘‘I–221’’, ‘‘I–259C’’, ‘‘I–290A’’, and 827A’’, ‘‘I–827B’’, ‘‘I–860’’, ‘‘I–862’’, and 259’’, ‘‘I–284’’, ‘‘I–286’’, ‘‘I–291’’, ‘‘I– ‘‘I–444’’, and by ‘‘I–863’’, in proper numerical sequence, 296’’, ‘‘I–310’’, ‘‘I–408’’, ‘‘I–426’’, ‘‘I– c. Adding the entries for Forms ‘‘I– to the listing of forms, to read as 541’’, ‘‘I–589’’, ‘‘I–775’’, ‘‘I–851’’, and 94T’’, ‘‘I–99’’, ‘‘I–148’’, ‘‘I–160’’, ‘‘I– follows: ‘‘I–851A’’; 210’’, ‘‘I–213’’, ‘‘I–217’’, ‘‘I–220A’’, ‘‘I– 220B’’, ‘‘I–241’’, ‘‘I–261’’, ‘‘I–270’’, ‘‘I– § 299.1 Prescribed forms. 275’’, ‘‘I–294’’, ‘‘I–407’’, ‘‘I–546’’, ‘‘I– * * * * *

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 Voluntary Departure Notice.

******* 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 Detained 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±310 ...... 04±01±97 Bond for Payment of Sums and Fines Imposed under Immigration and Nationality Act (Term or Single Entry).

******* 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.

******* I±426 ...... 04±01±97 Immediate and Continuous Transit Agreement Between a Transportation Line and United States of America (special direct transit procedure).

******* I±541 ...... 04±01±97 Order of Denial of Application for Extension of Stay or Student Employment or Stu- dent Transfer. 516 Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules

Form No. Edition date Title

******* 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. I±827A ...... 04±01±97 Request for Disposition.

******* I±827B ...... 04±01±97 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.

*******

153. 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 as- INS form No. INS form title signed OMB control no.

******* I±246 ...... Application for Stay of Removal ...... 1115±0055

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

*******

PART 316ÐGENERAL previously issued orders of exclusion or § 318.1 Warrant of arrest. REQUIREMENTS FOR deportation) terminates the applicant’s For the purposes of section 318 of the NATURALIZATION status as a lawful permanent resident Act, a notice to appear issued under 8 and, therefore, disrupts the continuity of CFR part 239 (including a charging 154. The authority citation for part residence for purposes of this part. document issued to commence 316 is revised to read as follows: * * * * * proceedings under sections 236 or 242 Authority: 8 U.S.C. 1103, 1181, 1182, 1443, of the Act prior to April 1, 1997) shall 1447; 8 CFR part 2. PART 318ÐPENDING REMOVAL be regarded as a warrant of arrest. PROCEEDINGS 155. Section 316.5 is amended by PART 329ÐSPECIAL CLASSES OF revising paragraph (c)(3) to read as 156. The heading for part 318 is PERSONS WHO MAY BE follows: revised as set forth above. NATURALIZED: NATURALIZATION § 316.5 Residence in the United States. 157. The authority citation for part BASED ON ACTIVE DUTY SERVICE IN 318 is revised to read as follows: * * * * * THE UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF (c) * * * Authority: 8 U.S.C. 1103, 1252, 1429, 1443; 8 CFR part 2. HOSTILITIES. (3) Removal and return. Any departure from the United States while 158. Section 318.1 is revised to read 159. The authority citation for part under an order of removal (including as follows: 329 is revised to read as follows: Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 / Proposed Rules 517

Authority: 8 U.S.C. 1103, 1440, 1443; 8 (e) * * * Dated: December 24, 1996. CFR part 2. (3) The applicant may be naturalized Janet Reno, 160. Section 329.2 is amended by even if an outstanding notice to appear Attorney General. revising paragraph (e)(3) to read as pursuant to 8 CFR part 239 (including [FR Doc. 96–33166 Filed 12–27–96; 12:10 follows: a charging document issued to pm] commence proceedings under sections BILLING CODE 4410±10±M § 329.2 Eligibility. 236 or 242 of the Act prior to April 1, * * * * * 1997) exists.