[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: X94-20513]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service

8 CFR Part 245a

[INS No. 1321-91; AG Order No. 1870-94]
RIN 1115-AC18

 

Procedure for Automatic Termination of Temporary Resident Status 
upon Final Order of Deportation or Exclusion

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend existing regulations by 
providing, in specified circumstances, for the automatic termination of 
temporary resident status under provisions of the Immigration and 
Nationality Act (Act) upon the entry of a final order of deportation or 
exclusion. This amendment is necessary to avoid possible delays in, or 
termination of, pending deportation and exclusion proceedings that 
would result if the Immigration and Naturalization Service (INS or 
Service) were required to follow the existing procedures for the 
termination of temporary resident status. This amendment would permit 
the expeditious deportation and removal of aliens who hold temporary 
resident status, but who have been convicted of an aggravated felony, 
or who have been found to be ineligible for admission into the United 
States for reasons that are not waivable. This rule would also prevent 
the release of dangerous criminal liens into society during deportation 
or exclusion proceedings.

DATES: Written comments must be submitted on or before July 12, 1994.

ADDRESSES: Please submit comments in triplicate to the Director, Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, room 5307, 425 I Street, NW., Washington, DC 20536.

FOR FURTHER INFORMATION CONTACT: Gerald S. Hurwitz, Counsel to the 
Executive Director, Executive Office for Immigration Review, suite 
2400, Skyline Tower, 5107 Leesburg Pike, Falls Church, Virginia 22041, 
telephone number (703) 305-0470, or David Dixon, Appellate Counsel, 
Immigration and Naturalization Service, 425 I Street, NW., room 6100, 
Washington, DC 20536, telephone number (703) 756-6257.

SUPPLEMENTARY INFORMATION: This proposed regulation is necessary in 
order to correct a procedural anomaly that has resulted in the release 
of aggravated felons who hold temporary resident status and has 
impaired the ability of the INS to deport those who, after obtaining 
temporary resident status, commit deportable acts.
    The Board of Immigration Appeals (BIA) held in Matter of Medrano, 
Interim Decision #3138 (BIA September 10, 1990), that the status of a 
lawful temporary resident alien who commits a deportable offense must 
be terminated pursuant to Sec. 245A(b) (2) of the Act (8 U.S.C. 
1255a(b)(2)), and in accordance with 8 CFR 245a.2(u), before 
commencement of deportation proceedings. By following this precedent, 
INS is unable to detain deportable aliens, such as those who commit 
aggravated felonies, who hold temporary resident status, without first 
stripping the alien of his or her temporary resident status.
    Medrano's interpretation of 8 CFR 244a.2(u)(2) confronts the INS 
with conflicting obligations. On the one hand, Sec. 242(a)(2)(A) of the 
Act (8 U.S.C. 1252(a)(2)(A)) requires the INS to detain any alien 
convicted of an aggravated felony and Sec. 242 of the Act generally 
establishes the procedure for apprehension and deportation of aliens. 
On the other hand, Medrano stands as an obstacle to detaining and 
deporting such individuals until the alien's temporary residency status 
is revoked.
    Medrano and 8 CFR 245a.2(u)(2) also grant more procedural rights to 
temporary residents--who must first have their status revoked--than to 
lawful permanent residents, who may simply be deported upon the 
commission of an aggravated felony, without first terminating their 
status.
    The proposed amendment harmonizes with other provisions of 8 CFR 
245a.2(u)(1), which it will amend. This section currently provides, in 
part:

    The status of an alien lawfully admitted for temporary residence 
under section 245(a)(1) of the Act may be terminated at any time in 
accordance with section 245A(b)(2) of the Act. It is not necessary 
that a final order of deportation be entered in order to terminate 
temporary resident status.

    Accordingly, the existing regulation contemplates that institution 
of deportation proceedings may precede termination of resident status.
    The proposed regulation will correspond to regulations currently in 
force with respect to Special Agricultural Workers. Special 
Agricultural Workers' temporary resident status is automatically 
revoked upon the entry of a final order of deportation or exclusion. 8 
CFR 210.4(d) (promulgated pursuant to 8 U.S.C. 1160(a)(3)).
    Moreover, in other contexts, courts have recognized that 
deportation entails loss of lawful resident status. See, e.g., Marti-
Xiques v. INS, 741 F.2d 350 (11th Cir. 1984); Matter of Diaz-Chambrot, 
19 I. & N. Dec. 674 (BIA 1988) at 675.
    Thus, in order to avoid any delay or termination of deportation or 
exclusion proceedings that may be caused by invoking the termination 
procedure prescribed in Sec. 245a.2(u)(2)(i), and to permit the 
expeditious deportation and removal of aggravated felons as required by 
sections 242A(d) and 242(i) of the Act, the INS proposes to add a new 
paragraph (ii) to Sec. 245a.2(u)(2), to provide for the institution of 
deportation or exclusion proceedings and the automatic termination of 
lawful resident status upon the entry of a final order of deportation 
or exclusion in cases where: (1) the ground for deportation arises 
under section 241(a)(2)(A)(iii) of the Act (8 U.S.C. 
1251(a)(2)(A)(iii)) (convicted aggravated felons); or (2) the ground of 
deportability arises after the acquisition of temporary resident 
status, and that ground may not be waived pursuant to section 
245A(d)(2)(B)(ii) of the Act (8 U.S.C. 1255a(d)(2)(B)(ii)) (relating to 
certain crimes, drug offenses, national security, and likelihood of 
becoming a public charge); or (3) the alien seeks admission, and the 
ground of inadmissibility may not be waived pursuant to section 
245A(d)(2)(B)(ii) of the Act.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this proposed rule does not have a significant adverse economic 
impact on a substantial number of small entities. It will affect 
certain individual aliens, not small entities. This is not a 
significant rule within the meaning of section 3(f) of Executive Order 
12866, nor does this rule have Federalism implications warranting the 
preparation of a Federalism Assessment in accordance with Executive 
Order 12612.

List of Subjects in 8 CFR Part 245a

    Aliens, Immigration, Reporting and recordingkeeping requirements.

    Accordingly, it is proposed that chapter I of title 8 of the Code 
of Federal Regulations be amended as follows:

PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF 
THE IMMIGRATION AND NATIONALITY ACT

    1. The heading for part 245a is revised to read as set forth above.
    2. The authority citation for part 245a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1255a, and 1255a note.

    3. Section 245a.2(u)(2) is amended by:
    a. Designating the existing text of paragraph (u)(2) as paragraph 
(u)(2)(i);
    b. Adding a new heading and revising the first sentence; and
    c. Adding a new paragraph (u)(2)(ii), to read as follows:


Sec. 245a.2  Application for temporary residence.

* * * * *
    (u) Termination of temporary residence status.
* * * * *
    (2) Procedure--(i) Termination by the Service. Except as provided 
in paragraph (u)(2)(ii) of this section, termination of an alien's 
temporary resident status under paragraph (u)(i) of this section will 
be made before instituting deportation proceedings against a temporary 
resident alien and only on notice sent to the alien by certified mail 
directed to his or her last known address, and to his or her 
representative, if any.  * * *
    (ii) Termination upon entry of final order of deportation or 
exclusion. (A) The Service may institute deportation or exclusion 
proceedings against a temporary resident alien without regard to the 
procedures set forth in paragraph (u)(2)(i) of this section:
    (1) If the ground for deportation arises under section 
241(a)(2)(A)(iii) of the Act; or
    (2) If the ground for deportation arises after the acquisition of 
temporary resident status, and the basis of such ground of deportation 
is not waivable pursuant to section 245A(d)(2)(B)(ii) of the Act; or
    (3) If the ground for exclusion arises after the acquisition of 
temporary resident status and is not waivable pursuant to section 
245A(d)(2)(B)(ii) of the Act.
    (B) In such cases, the entry of a final order of deportation or 
exclusion automatically will terminate an alien's temporary resident 
status acquired under section 245A(a)(1) of the Act.

    Dated: April 29, 1994.
Janet Reno,
Attorney General.
[FR Doc. 11312 Filed 5-12-94; 8:45 am]
BILLING CODE 4410-01-M