[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11314]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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DEPARTMENT OF JUSTICE

8 CFR Part 3

[AG Order No. 1873-94]

 

Executive Office for Immigration Review; Stipulated Requests for 
Deportation or Exclusion Orders Telephonic, Video Teleconferenced 
Hearings

agency: Department of Justice.

action: Proposed rule.

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summary: This proposed rule would amend agency regulations by requiring 
Immigration Judge to enter an order of deportation or exclusion, 
without a hearing, if satisfied that the alien voluntarily entered into 
a plea-negotiated or otherwise stipulated request for an order of 
deportation or exclusion. It further codifies the practice of 
Immigration Judges conducting telephone hearings in deportation, 
exclusion, or rescission cases, and codifies the authority of the 
Immigration Judge to hold video teleconferenced hearings.
    The proposed rule also clarifies regulatory language to conform 
with in absentia hearing provisions under the Immigration and 
Nationality Act (the ``Act'').

dates: Written comments must be received no later than June 13, 1994.

addresses: Please submit written comments, in triplicate, to Gerald S. 
Hurwitz, Counsel to the Director, Executive Office for Immigration 
Review, suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041 
(703) 305-0470.

for further information contact: Gerald S. Hurwitz, Counsel to the 
Director, Executive Office for Immigration Review, Suite 2400, 5107 
Leesburg Pike, Falls Church, Virginia 22041 (703) 305-0470; Brian 
O'Leary, Associate General Counsel, Office of the General Counsel, room 
6100, Immigration and Naturalization Service, 425 I Street, NW., 
Washington, DC 20536 (202) 514-2895.

supplementary information: This proposed rule amends 8 CFR 3.25 by 
requiring the Immigration Judge, under new subparagraph (b), to enter 
an order of deportation or exclusion on the written record, without an 
in-person hearing, based upon the stipulated written request of the 
respondent/applicant and the government, provided that the Immigration 
Judge determines that the charging document sets forth a valid basis 
for deportability or excludability; the stipulated request for an order 
of deportation or exclusion is voluntarily entered into by the 
respondent/applicant; and the respondent/applicant specifically waives 
relief from deportation or exclusion as well as the described hearing 
rights. The requirements that the Immigration Judge enter the order 
without a hearing is limited to cases in which the applicant or 
respondent was represented at the time of the stipulation. The 
stipulation must be signed on behalf of the government and by both the 
applicant or respondent and his or her attorney or other representative 
qualified under part 292 of this chapter.
    This procedure codifies the litigation practice in some 
jurisdictions where, if a party enters into a stipulated request for a 
deportation or exclusion order with a written waiver of his or her 
appearance and rights, the Immigration Judge may sign the order of 
deportation or exclusion based upon the written record. This practice 
facilitates judicial efficiency in uncontested cases. For example, it 
has been used to expedite departure shortly after the sentencing of 
aliens convicted of offenses rendering them immediately deportable or 
excludable. Whereas this practice currently occurs at the discretion of 
the Immigration Judge, the proposed rule would make it mandatory.
    The procedure also has been used by imprisoned criminal aliens 
having no apparent avenue of relief from deportation or exclusion who, 
after consultation with counsel, wish to avoid further detention 
pending deportation or exclusion proceedings following release from 
prison. While protecting the rights of the parties, the rule also 
implements the statutory requirement of expeditious deportation of 
criminal aliens under 8 U.S.C. 1252(i), 1252a(d). If used more widely 
by litigants and criminal prosecutors, the procedure could alleviate 
overcrowded federal, state, and local detention facilities and 
eliminate the need to calendar such uncontested cases on crowded 
immigration court dockets. The procedure is not limited to cases 
arising from the criminal context and can be used in other appropriate 
settings.
    New subparagraph (c) establishes the authority of Immigration 
Judges to hold telephonic hearings. Although the proposal is meant to 
be applicable nationwide, Purba v. INS, 884 F.2d 761 (9th Cir. 1988), 
holds that telephonic deportation hearings may only be conducted with 
the consent of the parties. This is in conflict with the proposed 
regulation, which permits telephonic hearings to be conducted at the 
discretion of the Immigration Judge. The Immigration Judges in the 
geographical confines the Ninth Circuit currently follow Purba and will 
continue to follow the law of the circuit if the proposed rule is 
finally adopted. In all areas outside the Ninth Circuit the regulation 
would be effective and telephonic hearings would be conducted when an 
Immigration Judge, in his or her sound discretion, deems it 
appropriate. Subparagraph (c) also codifies the authority of 
Immigration Judges to hold video teleconferenced hearings. This 
practice increases administrative efficiency.
    The proposed rule also makes minor technical changes in 
subparagraph (a) to conform with the in absentia provisions of 8 U.S.C. 
1252.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not a major rule 
within the meaning of section 1(b) of Executive Order No. 12291 and 
this rule has no Federalism implications warranting the preparation of 
a Federalism Assessment in accordance with Executive Order No. 12612. 
The rule meets the applicable standards provided in sections 2(a) and 
2(b)(2) of Executive Order No. 12778.

List of Subjects in 8 CFR Part 3

    Administrative practice and procedure, Immigration and 
Naturalization Service, Organization and functions (government 
agencies).
    Accordingly, 8 CFR part 3 is proposed to be amended as set forth 
below:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 
28 U.S.C. 509, 510, 1746; Section 2, Reorganization Plan No. 2 of 
1950, 3 CFR, 1949-1953 Comp., p. 1002.

    2. Section 3.25 is revised to read as follows:


Sec. 3.25  Waiver of presence of the parties.

    (a) Good cause shown. The Immigration Judge may, for good cause, 
waive the presence of a respondent/applicant at the hearing where the 
alien is represented or where the alien is a minor child at least one 
of whose parents or whose legal guardian is present. In addition, in 
absentia hearings may be held pursuant to sections 1252(b) and 1252(c) 
of Title 8, United States Code with or without representation.
    (b) Stipulated request for order; waiver of hearing. 
Notwithstanding any other provision of this chapter, upon the written 
request of the respondent/applicant and upon concurrence of the 
government, the Immigration Judge shall not hold a hearing and shall 
enter an order of deportation or exclusion on the written record if the 
Immigration Judge determines, upon a review of the charging document, 
stipulation document, and supporting documents, if any, that a 
represented respondent/applicant voluntarily entered into a stipulated 
request for an order of deportation or exclusion. The stipulation 
document shall include:
    (i) An admission of all factual allegations contained in the 
charging document to be true and correct as written;
    (ii) A concession of deportability or excludability as charged;
    (iii) A statement that the respondent/applicant makes no 
application for relief from deportation or exclusion, including, but 
not limited to, voluntary departure, asylum, adjustment of status, 
registry, de novo review of a termination of conditional resident 
status, de novo review of a denial or revocation of temporary protected 
status, relief under 8 U.S.C. 1182(c), suspension of deportion, or any 
other possible relief under the Act;
    (iv) A designation of a country for deportation under 8 U.S.C. 
1253(a);
    (v) A concession to the introduction of the written statements of 
the respondent/applicant as an exhibit to the record or proceedings;
    (vi) A statement that the attorney/representative has explained the 
consequences of the stipulated request to the respondent/applicant and 
that the respondent/applicant enters the request voluntarily, knowingly 
and intelligently;
    (vii) A statement that the respondent/applicant will accept a 
written order for his or her deportation or exclusion as a final 
disposition of the proceedings; and
    (viii) A waiver of appeal of the written order of deportation or 
exclusion.
    (2) The stipulated request and required waivers shall be signed on 
behalf of the government and by both the respondent/applicant and his 
or her attorney or other representative qualified under part 292 of 
this chapter. The attorney or other representative shall file a Notice 
of Appearance in accordance with Sec. 3.16(a) of this part.
    (c) Telephonic or video teleconferenced hearing. An Immigration 
Judge may conduct a telephonic or video teleconferenced hearing in any 
proceeding under 8 U.S.C. 1226, 1252, or 1256.

    Dated: May 1, 1994.
Janet Reno,
Attorney General.
FR Doc. 94-11314 Filed 5-12-94; 8:45 am]
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