[Federal Register Volume 60, Number 61 (Thursday, March 30, 1995)]
[Proposed Rules]
[Pages 16386-16388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7754]



 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / 
Proposed Rules  
[[Page 16386]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 242

[INS No. 1672-94; AG Order No. 1957-95]
RIN 1115-AD76


Administrative Deportation Procedures for Aliens Convicted of 
Aggravated Felonies Who Are Not Lawful Permanent Residents

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to establish alternative administrative 
deportation procedures for aliens not admitted for permanent residence 
and not eligible for any relief from deportation who have been 
convicted of aggravated felonies. This regulation is necessary to 
implement a recently enacted statutory measure eliminating the 
requirement for a hearing before an immigration judge and limiting 
judicial review. While incorporation procedural safeguards, it will 
expedite the deportation process in certain cases involving serious 
criminal offenses.

DATES: Written comments must be submitted on or before May 30, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, Room 5307, 425 I Street NW., Washington, DC 20536. Attention: 
Public Comment Clerk. To ensure proper handling, please reference INS 
No. 1672-94 on your correspondence. Comments are available for public 
inspection at this location by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Leonard C. Loveless, Detention and 
Deportation Officer, Immigration and Naturalization Service, 425 I 
Street, NW., Washington, D.C. 20536, Telephone (202) 514-2865.

SUPPLEMENTARY INFORMATION: This proposed rule establishes an expedited 
administrative deportation process. Section 130004 of the Violent Crime 
Control and Law Enforcement Act of 1994, Public Law 103-322, amended 
section 242A of the Immigration and Nationality Act (Act), effective 
September 14, 1994, to authorize such a process. Amended section 
242A(b) of the Act authorizes the Attorney General to implement a 
deportation procedure that eliminates hearings before immigration 
judges for certain aliens convicted of serious criminal offenses. 
Limited judicial review is authorized upon the filing of a petition for 
review within 30 days after the administrative deportation order is 
issued. Also, the Immigration and Nationality Technical Corrections Act 
of 1994, Public Law 103-416, enacted October 25, 1994, made minor 
technical changes to the statutory administrative deportation 
procedures.
    Before enactment of Public Law 103-322, except in the case of 
certain Visa Waiver Pilot Program and crewman violators, deportation 
proceedings were required to be conducted before an immigration judge 
pursuant to section 242(b) of the Act. By enactment of Public Law 103-
322, Congress provided for a more streamlined deportation process for 
an alien who is convicted of an aggravated felony and who is not a 
lawful permanent resident. The procedure is available only if the alien 
is not eligible for any form of relief from deportation under the Act. 
Section 242A(b)(4) requires the Attorney General to prescribe 
regulations to conduct proceedings under the section. This proposed 
rule authorizes a district director or chief patrol agent to issue a 
final administrative order of deportation in accordance with section 
242A(b) of the Act.
    The proposed rule would require the Service to perform certain 
functions to afford the alien procedural protection during the 
administrative process:
    a. The alien would be given reasonable notice of the charge of 
deportability. The notice would set forth allegations of fact and 
conclusions of law establishing that the alien is not a lawful 
permanent resident, is deportable under section 241(a)(2)(A)(iii) of 
the Act (relating to conviction for an aggravated felony), and is 
ineligible for relief from deportation.
    b. The charge of deportability would be supported by clear, 
convincing, and unequivocal evidence, and a record would be maintained 
for judicial review.
    c. The alien would have an opportunity to be represented by counsel 
in the deportation proceedings at no expense to the government.
    d. The alien would have a reasonable opportunity to inspect the 
evidence and rebut the allegations and/or charge within ten days, with 
an extension granted by the district director or chief patrol agent for 
good cause shown.
    e. The person who renders the final decision would not be the same 
person who issues the notice of the Service's intention to issue a 
final order (i.e. the charge).
    f. The alien would be able to seek review of the final order by 
filing a petition for judicial review within 30 days.
    During the administrative deportation process, the district direct 
or chief patrol agent would determine the alien's custody status in 
accordance with applicable provisions of section 242 of the Act. The 
alien would be able to seek review of the custody determination in 
habeas corpus proceedings.
    Section 242(b) of the Act does not apply when the alien is eligible 
for relief from deportation under the Act. If the Service finds that 
the alien's response presents a prima facie claim of statutory 
eligibility for relief, the rule proposes that the district director or 
chief patrol agent (or their designee) shall terminate proceedings 
under section 242A(b) of the Act, and shall, where appropriate, issue 
an order to show cause for the purpose of initiating an immigration 
judge proceeding under section 242(b) of the Act.
    Limited judicial review of the final administrative deportation 
order may be obtained by filing a petition for review in accordance 
with section 106 of the Act. The review, however, is statutorily 
limited to: (1) Whether the person is in fact the alien described in 
the order; (2) whether the person was not lawfully admitted for 
permanent residence at the time at which deportation proceedings 
commenced; (3) whether the person is not eligible for any relief from 
deportation; (4) whether the alien has been convicted of an aggravated 
felony and such conviction has become final; and (5) whether the alien 
was afforded [[Page 16387]] the procedures required by section 
242A(b)(4) of the Act.
    Sections 242(a) (2)(A) and (2)(B) of the at require the Service to 
detain, until the order is executed, any aggravated felon who has not 
been ``lawfully admitted.'' An alien who has been lawfully admitted may 
be released from custody if the alien demonstrates to the satisfaction 
of the Attorney General that the alien is not a threat to the community 
and is likely to appear for any scheduled proceedings. An immigration 
judge is not authorized to consider (or redetermine) custody issues 
under the rule. The alien may seek review of the bond determination by 
filing a writ of habeas corpus with the district court.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b), certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities because the affected parties are 
individual aliens who have been ordered deported from the United 
States.

Executive Order No. 12866

    This rule is not considered to be a ``significant regulatory 
action'' within the meaning of section 3(f) of E.O. 12866, Regulatory 
Planning and Review, and the Office of Management and Budget has waived 
its review process under section 6(a)(3)(A).

Executive Order No. 12612

    This rule is not considered to have Federalism implications 
warranting the preparation of a Federalism Assessment in accordance 
with section 6 of E.O. 12612.

Executive Order 12606

    The Attorney General certifies that she has assessed this rule in 
light of the criteria in E.O. 12606 and has determined that this rule 
will not have an impact on family formation, maintenance, or general 
well-being.

List of Subjects in 8 CFR Part 242

    Administrative practice and procedure, Aliens, Deportation.

    Accordingly, part 242 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    1. The authority citation for part 242 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252a, 1252b, 1254, 1362; 8 CFR part 2.

    2. In part 242, a new Sec. 242.25 is added to read as follows:


Sec. 242.25  Proceedings under section 242A(b) of the Act.

    (a) Definitions. As used in this section--
    Deciding Service officer means a district director, chief patrol 
agent, or his or her designated representative who is not the same 
person as the issuing Service officer.
    Issuing Service officer means any Service officer listed in 
Sec. 242.1(a) as authorized to issue orders to show cause.
    Prima facie claim means a claim that, on its face and consistent 
with the evidence in the record of proceeding, demonstrates present 
statutory eligibility for a specific form of relief from deportation 
under the Immigration and Nationality Act (Act).
    (b) Preliminary consideration and notice of intent to issue a final 
administrative deportation order; commencement of proceedings. (1) 
Basis of Service charge. An issuing Service officer shall cause to be 
served upon the alien a notice of intent to issue a final 
administrative deportation order (Notice of Intent, Form I-851) if he 
or she is satisfied that there is evidence sufficient to support a 
finding that the individual:
    (i) Is an alien;
    (ii) Has not been lawfully admitted for permanent residence;
    (iii) Has been convicted (as demonstrated by one or more of the 
sources listed in Sec. 3.41 of this chapter) of an aggravated felony 
and such conviction has become final;
    (iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and
    (v) Does not appear statutorily eligible for any relief from 
deportation under the Act.
    (2) Notice. Deportation proceedings under section 242A(b) of the 
Act shall commence upon personal service of the Notice of Intent upon 
the alien, as prescribed by Sec. 103.5a(a)(2), 103.5a(b), and 
103.5a(c)(2) of this chapter. The Notice of Intent shall set forth the 
preliminary determinations and inform the alien of the Service's 
intention to issue a final administrative order of deportation (Final 
Administrative Deportation Order, Form I-851A) without a hearing before 
an immigration judge. This notice shall constitute the charging 
document. The Notice of Intent shall include allegations of fact and 
conclusions of law. It shall advise that the alien:
    (i) Has the privilege of being represented by counsel of the 
alien's choosing, at no expense to the government, as long as counsel 
is authorized to practice in deportation proceedings;
    (ii) May inspect the evidence supporting the Notice of Intent; and
    (iii) May rebut the charges within ten calendar days after service 
of such notice (or thirteen (13) days if service of the Notice was by 
mail). The Notice of Intent shall also advise the alien that he or she 
may designate in writing, within ten calendar days of service of the 
Notice of Intent (or thirteen calendar days if service is by mail), the 
country to which he or she chooses to be deported in accordance with 
section 243 of the Act, in the event that a Final Administrative 
Deportation Order is issued, and that the Service will honor such 
designation only to the extent permitted under the terms, limitations, 
and conditions of section 243 of the Act.
    (c) Alien's response. (1) Time for response. The alien will have 
ten calendar days from service of the Notice of Intent, or 13 calendar 
days if service is by mail,
    (1) To designate his or her choice of country for deportation and
    (ii) To submit a written response rebutting the allegations and/or 
charge and/or requesting the opportunity to review the government's 
evidence. The alien should send his or her designation of country for 
deportation, and his or her written response to the charge, to the 
deciding Service officer at the address provided in the Notice of 
Intent. If the final date for filing falls on a Saturday, Sunday, or 
legal holiday, the time shall be extended to the next business day. The 
time for response may be extended by the deciding Service officer for 
good cause shown in a written request for extension received within the 
time to submit a written response. The request must explain 
specifically why an extension is necessary. A request for extension of 
time for response will not automatically toll the prescribed period 
(e.g., ten days) for that response. The alien will be permitted to file 
a response outside the prescribed period only if the deciding Service 
officer permits it. The alien may, in writing, choose to accept 
immediate issuance of a Final Administrative Deportation Order.
    (2) Nature of response; request to review evidence. The alien's 
written response must indicate which finding(s) are being challenged 
and must be accompanied by affidavit(s), documentary information, or 
other specific evidence supporting the challenge. if the written 
response [[Page 16388]] requests the opportunity to review the 
government's evidence, the alien will be served with a copy of the 
evidence in the record of proceeding relied on by the government to 
support the allegations and/or charge. The alien may, within ten days 
following service of the government's evidence (thirteen days if 
service is by mail), furnish a final response in accordance with 
paragraph (c)(1) of this section. Either the alien's initial written 
response or the alien's final response must be accompanied by an 
affidavit and a completed and signed application designed for any 
relief sought.
    (d) Determination by deciding Service officer. (1) No response; 
acceptance of Final Administrative Deportation Order. If
    (i) A timely response is not received by the deciding Service 
officer, or
    (ii) The alien accepts immediate issuance of the Final 
Administrative Deportation Order, then the deciding Service officer 
shall issue and cause to be served upon the alien a Final 
Administrative Deportation Order. The determination of deportability 
must be supported by clear, convincing, and unequivocal evidence 
contained in the record of proceeding.
    (2) Response submitted. (i) Insufficient rebuttal; no prima facie 
claim or genuine issue of material fact. If the deciding Service 
officer finds that the response fails to rebut the allegations and 
charge in the Notice of Intent, fails to present a prima facie claim of 
relief from deportation under the Act, and fails to raise a genuine 
issue of material fact, he or she shall issue and cause to be served 
upon the alien a Final Administrative Deportation Order. The 
determination of deportability must be supported by clear, convincing, 
and unequivocal evidence contained in the record of proceeding.
    (ii) Additional evidence required. If the deciding Service officer 
finds that the alien's response raises a genuine issue of material fact 
regarding the preliminary findings, he or she
    (A) May request additional information from any source, including 
the alien, as he or she may deem appropriate, or
    (B) Issue an order to show cause to initiate deportation 
proceedings under section 242(b) of the Act. If the deciding Service 
officer considers additional information from a source other than the 
alien, that evidence shall be provided to the alien, and the alien may, 
within ten days of service thereof (thirteen days if service is by 
mail) furnish a response to the deciding Service officer. If, after 
considering all additional information, the deciding Service officer 
finds that deportation is supported by the requisite proof, he or she 
shall issue and cause to be served upon the alien a Final 
Administrative Deportation Order.
    (iii) Secretary eligibility for relief; conversion to proceedings 
under section 242(b) of the Act. If the deciding Service officer finds 
that the alien has presented a prima facie claim of present statutory 
eligibility for a specific form of relief from deportation, the 
deciding Service officer shall terminate the expedited proceedings 
under section 242A(b) of the Act, and shall, where appropriate, issue 
an order to show cause for the purpose of initiating an immigration 
judge proceeding under section 242(b) of the Act.
    (3) Termination of proceedings by deciding Service officer. Only 
the deciding Service officer may terminate proceedings under section 
242A(b) of the Act, in the exercise of his or her discretion.
    (e) Proceedings commenced under section 242(b) of the Act. In any 
proceeding commenced under section 242(b) of the Act, if it appears 
that the respondent's case falls under the provisions of section 
242A(b) of the Act, the immigration judge may, upon the Service's 
request, terminate the case and, upon such termination, the Service may 
commence administrative proceedings under section 242A(b) of the Act. 
However, in the absence of any such request, the immigration judge 
shall complete the pending proceeding commenced under section 242(b) of 
the Act.
    (f) Executing final order of deciding Service officer--
    (1) Thirty (30) calendar days. Upon the issuance of a Final 
Administrative Deportation Order, the Service shall issue a warrant of 
deportation issued in accordance with 8 CFR part 243.2; such warrant 
shall be executed no sooner than 30 calendar days after the date the 
Final Administrative Deportation Order is issued, unless the 30-day 
period is waived in writing by the alien. The 72-hour provisions of 
Sec. 243.3(b) of this chapter shall not apply.
    (2) Place to which deported. The deciding Service officer shall 
designate the country of deportation, in the manner prescribed by 
section 243(a) of the Act.
    (g) Arrest and detention. At the time of issuance of a Notice of 
Intent or at any time thereafter and up to the time the alien becomes 
the subject of a warrant of deportation, the alien may be arrested and 
taken into custody under the authority of a warrant of arrest issued by 
an officer listed in Sec. 242.2(c)(1) of this chapter. Pursuant to 
section 242(a)(2)(A) of the Act, pending proceedings under section 
242A(b) of the Act, the deciding Service officer shall not release an 
alien who has not been lawfully admitted. Pursuant to section 
242(a)(2)(B) of the Act, the deciding Service officer may release an 
alien who has been lawfully admitted based upon factors considered 
under Sec. 242.2(h) of this chapter. The decision of the deciding 
Service officer concerning custody or bond is not administratively 
appealable during proceedings initiated under section 242A(b) of the 
Act and this section.
    (h) Record of proceeding. A record of proceeding shall be 
maintained by the Service for judicial review of the Final 
Administrative Deportation Order sought by any petition for review. The 
record of proceeding shall include, but not necessarily be limited to, 
the charging document (Notice of Intent); the Final Administrative 
Deportation Order; the alien's response, if any; all evidence in 
support of the charges; and any admissible evidence, briefs, or 
documents submitted by either party respecting deportability or relief 
from deportation.

    Dated: March 16, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-7754 Filed 3-29-95; 8:45 am]
BILLING CODE 4410-01-M