[Federal Register Volume 60, Number 164 (Thursday, August 24, 1995)]
[Rules and Regulations]
[Pages 43954-43962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20946]



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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 242 and 299

[INS No. 1672-94; AG Order No. 1984-95]
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: Final rule.

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SUMMARY: This final rule establishes administrative deportation 
procedures for aliens not admitted for permanent residence and not 
statutorily eligible for any relief from deportation who have been 
convicted of aggravated felonies. This regulation is being promulgated 
to implement the statutory measure eliminating the requirement for a 
hearing before an Immigration Judge and limiting judicial review. While 
incorporating procedural safeguards, it will expedite the deportation 
process in certain cases involving aliens who have committed serious 
criminal offenses.

EFFECTIVE DATE: This rule is effective September 25, 1995.

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

SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service 
(``the Service'') published a proposed rule on March 30, 1995, at 60 FR 
16386. This final rule, which incorporates changes based on the 
comments received on the proposed rule, establishes an expedited 
administrative deportation procedure for aliens who have committed 
aggravated felonies and who are not lawful permanent residents. 
Congress authorized such a procedure in section 130004 of the Violent 
Crime Control and Law Enforcement Act of 1994, Public Law 103-322, 
which amended section 242A of the Immigration and Nationality Act 
(``the Act''), effective September 14, 1994. (The Immigration and 
Nationality Technical Corrections Act of 1994, Public Law 103-416, 
enacted October 25, 1994, made minor technical changes to section 
242A.) Section 242A(b)(4) of the Act authorizes the Attorney General to 
implement an expedited deportation procedure that eliminates hearings 
before Immigration Judges for certain aliens convicted of serious 
criminal

[[Page 43955]]

offenses. Section 242A(b)(3) provides that aliens subject to this 
administrative deportation procedure shall be entitled to limited 
judicial review upon filing of a petition for review within 30 days 
after a Final Administrative Deportation Order is issued.
    Before enactment of Public Law 103-322, all deportation and 
exclusion proceedings were required to be conducted before an 
Immigration Judge pursuant to section 242(b) of the Act (except in the 
case of certain security-related cases, Visa Waiver nonimmigrants, 
stowaways, and crewman violators). By enactment of Public Law 103-322, 
Congress authorized a more streamlined deportation process for aliens 
who have been convicted of aggravated felonies and who are not lawful 
permanent residents. Section 242A(b)(4) requires the Attorney General 
to prescribe regulations for such expedited proceedings. This final 
rule authorizes district director or chief patrol agent to issue a 
Final Administrative Order of Deportation in accordance with section 
242A(b) of the Act. Under section 242A(b)(2)(B), the administrative 
procedure can be used only if an alien does not satisfy the statutory 
conditions that would make the alien eligible for possible relief from 
deportation under the provisions of the Act.
    The final rule requires the Service to afford aliens certain 
procedural protections during the administrative deportation process:
    a. An alien will be given reasonable notice of the charge of 
deportability on Form I-851, Notice of Intent to Issue a Final 
Administrative Deportation Order. The Notice must 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 not statutorily eligible for relief from deportation.
    b. The charge of deportability must be supported by clear, 
convincing, and unequivocal evidence.
    c. An alien will be afforded the opportunity to be represented by 
counsel in the deportation proceedings at no expense to the Government 
and will be provided a list of available free legal services.
    d. An alien will be afforded a reasonable opportunity to inspect 
the evidence supporting the charge, and to rebut the charge within 10 
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 will not be the same 
person who issues the charge.
    f. A record of the proceedings must be maintained for judicial 
review.
    g. An alien is able to seek review of the final order by filing a 
petition for judicial review within 30 days.
    The Service cannot take action to commence the administrative 
deportation proceedings unless there is evidence establishing the 
statutory preconditions for deportation. If an alien appears to be 
statutorily eligible for relief from deportation, the Service will not 
commence proceedings under section 242A(b) of the Act.
    An alien may obtain judicial review of a Final Administrative 
Deportation Order by filing a petition for review in accordance with 
section 106 of the Act. Such review, however, is limited under section 
106(d) 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 the 
procedures required by section 242A(b)(4) of the Act.
    Section 242(a)(2) of the Act requires the Service to take into 
custody any alien who has been convicted of an aggravated felony, upon 
the alien's release from incarceration. An alien who has been lawfully 
admitted may be released from the Service's 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. The Attorney General may not release from 
custody any alien who has not been lawfully admitted. An alien can seek 
review of a custody determination by filing a writ of habeas corpus 
with the district court.
    The final rule differs from the proposed rule in the following 
respects: The rule amends 8 CFR 242.25(b)(2) by adding subparagraph 
(iii) to require the Service to provide a list of free legal-aid 
services to an alien in conjunction with the Notice of Intent. The 
final rule also amends 8 CFR 242.25(b)(2) by adding subparagraph (iv) 
to require the Service either to provide the alien a written 
translation of the Notice of Intent or to explain the contents of the 
Notice of Intent in the alien's native language or in a language the 
alien understands. The final rule also amends 8 CFR 299.1 by adding the 
entries for Forms I-851 (Notice of Intent to Issue a Final 
Administrative Deportation Order) and I-851A (Final Administrative 
Deportation Order) to the listing of forms, to ensure that Service 
personnel and the public are aware of these new forms and their proper 
edition dates. The rule also makes non-substantive changes to the 
provisions of the proposed rule for clarification.
    In response to the proposed rule, the Service received several 
comment letters and memoranda of law from various independent 
attorneys, law enforcement officials, and legal defense organizations. 
The following sections summarize the comments and explain the revisions 
adopted.
    The comments principally focused upon the following topics: aliens' 
entitlement to due process; the absence of an ``in person'' hearing in 
the administrative deportation procedure; the competence of the 
deciding Service officer; the complexity of determining whether an 
alien has been convicted of an ``aggravated felony'' or is entitled to 
relief from deportation; the form and content of the notice provided to 
the alien; the deadlines imposed upon the alien for responding to the 
Notice of Intent; aliens' opportunity to obtain counsel; aliens' 
opportunity to rebut charges; the impartiality of the deciding Service 
officer; the risk of deportation of United States citizens or lawful 
permanent residents; the lack of review of the deciding Service 
officer's decision by an Immigration Judge or by the Service's General 
Counsel; and the termination without prejudice of Immigration Judge 
proceedings when it appears that an alien is subject to administrative 
proceedings under section 242A(b) of the Act.

1. Procedural Due Process in the Absence of an In-Person Hearing

    Comments: Several commenters contended that the proposed rule 
violated constitutional requirements of procedural due process. In 
particular, the commenters argued that the process is constitutionally 
inadequate because of the failure to provide an in-person hearing 
before the deciding Service officer.
    Response and Disposition: Congress decided to permit expedited 
deportation procedures for a certain class of aliens with respect to 
whom the decision to deport typically is straightforward and not 
subject to discretionary or equitable considerations. Because 
deportation of such aliens involves no discretionary factors, and 
because there rarely will be any factual disputes bearing upon 
deportability that cannot be resolved 

[[Page 43956]]
through documentary evidence, a testimonial hearing for such aliens 
rarely if ever will serve a useful purpose. Accordingly, Congress 
authorized the ``[e]limination of [a]dministrative [h]earing[s]'' for 
such aliens. Public Law 103-322, Section 130004(a), 108 Stat. 2026. The 
Service is merely implementing this congressional decision. Both the 
statute and the rule provide all the process that is due.
    It is well established that the Fifth Amendment entitles aliens to 
due process of law in deportation proceedings. See Reno v. Flores, 113 
S. Ct. 1439, 1449 (1993). As the Supreme Court explained in Landon v. 
Plasencia, 459 U.S. 21, 34 (1982), whether deportation procedures 
satisfy due process depends upon three factors: (i) The interest at 
stake for the alien; (ii) the risk of an erroneous deprivation of the 
interest through the procedures used and the probable value of 
additional or different procedural safeguards; and (iii) the interest 
of the government in using the given procedures rather than additional 
or different procedures. As these three factors suggest, the 
constitutional sufficiency of procedures provided in any particular 
situation is dependent on context; it will vary with the particular 
circumstances, and what is sufficient for one type of deportation 
determination may not be sufficient for another. Landon, 459 U.S. at 
34-35. In the context of deportation of aliens who are aggravated 
felons and who are not lawful permanent residents, consideration of the 
three factors compels the conclusion that the procedures provided in 
this rule satisfy due process.
    With respect to the first factor, the Service recognizes that the 
interest at stake for the alien--remaining in the United States--can be 
substantial. An alien stands to lose the right ``to stay and live and 
work in this land of freedom,'' Landon, 459 U.S. at 34, and may lose 
the right to rejoin his or her immediate family, id. However, the 
aliens covered by this rule have somewhat lesser cognizable interests 
than aliens who are either permanent lawful residents, or who are not 
aggravated felons, or both. The aliens in question, because they will 
either have been admitted on a temporary basis or will have entered the 
country unlawfully, will not have ``develop[ed] * * * ties'' to the 
United States, see Landon, 459 U.S. at 32, equivalent to those enjoyed 
by permanent resident aliens. Moreover, this discrete class of aliens 
has demonstrated a disregard for the laws of the United States, as 
evidenced by their aggravated felony convictions. Those aliens who have 
been incarcerated will already have had their ties to this country 
diminished as a result; and even aliens who originally had been 
lawfully admitted should have less of an expectation to those ties 
because, by virtue of their commission of an aggravated felony, they 
will have failed to fulfill the conditions under which they gained 
entry and under which they were entitled to developed such ties.
    As to the third factor in the due process calculation, the 
government's interest in ensuring expedited deportation of this class 
of aliens is substantial. To begin with, it ``weighs heavily in the 
balance'' that control of immigration matters ``is a sovereign 
prerogative.'' Landon, 459 U.S. at 34. In addition, the government also 
has a ``weighty'' interest ``in efficient administration of the 
immigration laws.'' Id. Considerable weight must be given to ``the 
administrative burden and other societal costs that would be associated 
with requiring * * * an evidentiary hearing upon demand in all cases.'' 
Mathews v. Eldridge, 424 U.S. 319, 347 (1976).
    With regard to ``the administrative burden,'' the interest of the 
government and the public ``in conserving scarce fiscal and 
administrative resources'' is critical. Mathews, 424 U.S. at 348. The 
administrative process encouraged by Congress and established by this 
rule addresses Congress' concern that aliens who are serious criminal 
offenders have not heretofore been deported swiftly. Presently, without 
the expedited proceedings provided by this rule, many of these aliens, 
particularly those who serve short sentences for their convictions, 
remain in the custody of the Service for prolonged periods. Congress 
recognized that the present hearing procedure, with its ``repeated 
appeals,'' ``can consume several years.'' 139 Cong. Rec. E749 (Mar. 24, 
1993) (statement of Rep. McCollum). The cost of incarcerating these 
aliens during that period is substantial, and Congress authorized the 
expedited deportation procedures in large part to ameliorate that cost. 
Id. See also 140 Cong. Rec. S3068 (Mar. 16, 1994) (statement of Sen. 
Roth). The expedited procedure also serves to address ``other societal 
costs.'' Mathews, 424 U.S. at 347. Because aliens presently can invoke 
the more formal procedures, their custody continues for an extended 
period. This exacerbates the ``problem of limited detention capacity'' 
that the Service faces, 139 Cong. Rec. E749 (Mar. 24, 1993) (statement 
of Rep. McCollum), and permits alien felons extended opportunity to 
commit further crime in this country. See 140 Cong. Rec. S3068 (Mar. 
16, 1994) (statement of Sen. Roth).
    Finally, with respect to the second due process factor, there is 
little risk that the administrative procedures established by this 
rule--in particular, the lack of an in-person hearing--will result in 
an erroneous deprivation of aliens' interests, and the probable value 
of additional or different procedural safeguards is minimal, at best.
    It is worth noting, as an initial matter, that a number of aliens 
who are aggravated felons and who are not lawful permanent residents 
may choose not to contest deportation, since such deportation is based 
on objective, nondiscretionary criteria for aliens who fall within the 
class covered by section 242A of the Act.
    Some aliens will, however, challenge deportation under section 242A 
of the Act; and due process requires that in any deportation 
proceeding, an alien must be entitled to notice of the nature of the 
charge and ``a fair opportunity to be heard'' on the charge. Kwong Hai 
Chew v. Colding, 344 U.S. 590, 597-98 (1953). As in other contexts, 
``[t]he fundamental requirement of due process'' in a deportation 
proceeding ``is the opportunity to be heard `at a meaningful time and 
in a meaningful manner.' '' Mathews, 424 U.S. at 333 (citation 
omitted). See, e.g., Rafeedie v. INS, 880 F.2d 506, 524 (D.C. Cir. 
1989). An alien must, therefore, be apprised of clearly defined 
charges, have a fair opportunity to present evidence in his or her 
favor, and have the right to inspect the evidence on which the matter 
is to be decided. See, e.g., Kaczmarczyk v. INS, 933 F.2d 588, 595-96 
(7th Cir.), cert. denied, 502 U.S. 981 (1991). Due process in the 
deportation context does not, however, require the same procedural 
protections as would be provided in a criminal trial, see Dor v. 
District Director, 891 F.2d 997, 1003 (2d Cir. 1989), nor does it 
automatically dictate and opportunity for an alien to be heard upon a 
regular, set occasion, and according to the forms of judicial 
procedure; instead, due process merely requires that an alien be given 
an opportunity to be heard ``that will secure the prompt, vigorous 
action contemplated by Congress, and at the same time be appropriate to 
the nature of the case.'' Yamataya v. Fisher, 189 U.S. 86, 101 (1903).
    An alien's due process rights to be heard and to defend are 
protected by this rule. An alien will have been questioned by an 
immigration officer, and will be given reasonable notice of the 
charges, the right to counsel, and a reasonable opportunity to inspect 
the evidence and rebut the charges. An 

[[Page 43957]]
alien can submit whatever evidence he or she wishes to rebut the 
charges, and the deportation decision will be made by an immigration 
official other than the official who issues the charging document. The 
burden of proof is upon the Service to establish deportability by 
clear, convincing, and unequivocal evidence. The decision is subject to 
judicial review by the court of appeals on a petition for review.
    The fact that an in-person hearing before the deciding Service 
officer typically will be unavailable under the administrative 
proceedings does not automatically result in a denial of due process. 
To begin with, in the usual case the alien will already have had a 
face-to-face interview, when the Service takes into custody or 
otherwise first encounters the alien. During such an interview, the 
investigative officer may take a sworn statement or affidavit from the 
alien and then complete Form I-213, Record of Deportable Alien. See 8 
U.S.C. 1357(b); 8 CFR 287.5(a). The results of this interview typically 
will form a basis for both the initiation of administrative deportation 
proceedings and the charge of deportability; thus, the alien has an 
opportunity at that initial interview to rebut the facts upon which 
administrative deportation would be predicated. Little, if anything, 
would be gained by requiring another interview before the deciding 
Service officer. And, since many aliens in administrative deportation 
proceedings will be detained by other law enforcement agencies, a 
requirement of another ``in-person'' hearing would result in further 
delays by requiring Service officers to travel to remote locations to 
repeat the interview with each alien.
    Even more significantly, in a deportation proceeding under this 
rule the risk of making an erroneous decision will be minimal, and the 
value of an in-person hearing would be speculative at best. The only 
issues to be decided in such proceedings are ``relatively 
straightforward matters,'' Califano v. Yamasaki, 442 U.S. 682, 696 
(1979), namely: alienage, lawful permanent resident status, conviction 
of an aggravated felony, and statutory eligibility for relief. The 
Service can determine alienage, lawful permanent resident status, and 
eligibility for relief based solely upon documentary evidence, such as 
information contained in the alien registration file and computer 
databases, and can supplement that evidence with the statement of the 
alien at the initial interview. The Service can determine whether the 
alien has been convicted of an aggravated felony based upon the record 
of conviction. Most importantly, unlike many determinations that can 
arise in other types of deportation proceedings, these determinations 
must be made by the Service without consideration of any equities or 
discretionary factors. Accordingly, there are unlikely to be any 
``issues of witness credibility and veracity,'' Mathews, 424 U.S. at 
343-44, that might justify an in-person, testimonial hearing.
    The Supreme Court has held that due process does not require an in-
person, testimonial hearing in front of the deciding official where the 
decision in question ``will turn, in most cases, upon `routine, 
standard, and unbiased' '' documentary evidence. Mathews, 424 U.S. at 
344 (citation omitted). Where the facts on which the ultimate decision 
are to be based are ``sharply focused and easily documented,'' id. at 
343, as in the case of aliens who have committed aggravated felonies 
and who are not permanent resident aliens, more formal testimonial 
hearings are not constitutionally required. The facts on which 
deportation will depend for these aliens are ``relatively 
straightforward matters,'' Califano, 442 U.S. at 696, and are 
``typically more amenable to written than to oral presentation,'' 
Mathews, 424 U.S. at 345. See also id. at 344 n.28.
    Several commenters suggested that there may be certain cases in 
which testimony will be necessary to determine such issues as alienage 
or possible statutory eligibility for relief from deportation. Because 
of the nature of these determinations, the Service believes that the 
cases will be few and far between in which such determinations cannot 
be made on the basis of documentary evidence. But even if there are 
such isolated cases, that would not mean that the rule itself is 
unconstitutional.
    To begin with, although the regulation does not require an in-
person hearing, the deciding Service officer can request further 
evidence after the alien's initial submission, if that officer 
determines that such evidence will aid in the decision. Under 8 CFR 
242.25(d)(2)(ii), if the deciding Service officer finds that the 
alien's written response raises a genuine issue of material fact 
regarding the preliminary findings, the officer may request additional 
evidence, as he or she may deem appropriate. Thus, if any testimony is 
required, it can and should be heard.
    More fundamentally, ``procedural due process rules are shaped by 
the risk of error inherent in the truth-finding process as applied to 
the generality of cases, not the rare exceptions.'' Mathews, 424 U.S. 
at 344. And ``[i]t would be inconsistent with that principle to require 
a hearing * * * when review of [an alien's] written submission is an 
adequate means of resolving all but a few * * * disputes.'' Califano, 
442 U.S. at 696. If an alien believes that due process requires 
additional protections because of the particular exigencies of his or 
her case, the alien can raise the issue in the record of proceedings, 
and the alien thereafter can, in appropriate circumstances, seek 
judicial review to redress any alleged constitutional deprivation. But 
the mere possibility of such as-applied due process challenges does not 
justify the enormous cost that would be entailed in providing an in-
person hearing for every deportation determination. See Mathews, 424 
U.S. at 909; Califano, 442 U.S. at 696. Therefore, the rule is not 
susceptible to a ``facial challenge'' on procedural due process 
grounds. Cf. Reno v. Flores, 113 S. Ct. at 1450-51 (because due process 
would not be denied in the majority of cases, facial due process 
challenge is rejected).
    Accordingly, the provisions of the proposed rule requiring a 
documentary record and not requiring an in-person hearing have been 
adopted without substantive amendment in the final rule.

2. Reasonable Notice

    Comments: Several commenters stated that the Notice provided to the 
alien pursuant to 8 CFR 242.25(b)(2) should advise the alien of 
eligibility for relief, be translated into the alien's native language 
if he or she is not proficient in English, and be explained to the 
alien. Other commenters stated that aliens often do not understand that 
nature of the proceedings; that aliens may be incompetent or mentally 
ill; and that proper notice should include more information regarding 
the law and legal rights. One comment stated that if the alien receives 
the Notice while detained, the regulation should provide that the alien 
be given writing materials and postage stamps for a response.
    Response and Disposition: In conformity with the statute and the 
final rule, the Notice of Intent to Issue a Final Administrative 
Deportation Order (Form I-851) will contain legally sufficient factual 
allegations, conclusions of law, charge of deportability, and advice to 
the respondent (similar to an Order to Show Cause). These elements of 
notice satisfy due process requirements. The Notice will instruct the 
alien to identify which findings supporting deportation he or she is 
challenging, if any, and to corroborate any challenge with 
documentation or other evidence. To facilitate the process, page two of 
the Notice of Intent also will provide easy-to-understand boxes that an 
alien 

[[Page 43958]]
should check to indicate the nature of the alien's response. It would 
be inappropriate for the regulation to recommend which kinds of 
evidence an alien should choose to present in defending against the 
charge or in presenting a claim to relief, given the variety of 
evidence that might be germane to the determinations at issue.
    Both the Act and the regulations set forth the various forms of 
relief that may or may not be available in deportation proceedings. 
Moreover, under the rule, aliens will have a reasonable opportunity to 
obtain counsel of their choosing who may assist them in determining 
whether relief is available. If an alien submits evidence supporting a 
prima facie claim that he or she may be statutorily eligible for some 
relief from deportation, Sec. 242.25(d)(2)(iii) of the rule requires 
the Service to terminate the administrative proceedings and, where 
appropriate, to initiate proceedings before an Immigration Judge. If an 
alien appears to satisfy the statutory conditions for eligibility for 
relief from deportation, the Service would not then have jurisdiction 
to commence or to continue proceedings under 242A(b) of the Act. In 
light of these protections, the proposed rule will not be changed to 
require that the Service advise the alien of the various forms of 
statutory eligibility for relief.
    The Form I-851 (Notice of Intent) will advise respondent aliens of 
the availability of a list of free legal services. The rule is amended 
to require the Service to provide such a legal aid list in conjunction 
with the Notice of Intent. Service of the Notice must, in accordance 
with 8 CFR 292.5(a), be made upon an attorney or representative of 
record, if the alien is so represented. The Notice of Intent will 
clearly provide the address to which the alien must send a response.
    The Service agrees that it is important that the alien understand 
the Notice of Intent. Therefore, to enhance fairness and ensure that 
the notice of the charges is reasonable, the proposed rule is amended 
to add subparagraph (iv) to 8 CFR 242.25(b)(2), which will require that 
the Service either provide the alien a written translation of the 
Notice of Intent or explain the contents of the Notice of Intent in the 
alien's native language or in a language that the alien understands.
    The Service agrees that, in certain particular cases, an alien may 
be unable to read or understand the nature of proceedings because of 
his or her incompetence or mental illness. This rule provides a 
reasonable opportunity for an alien to seek the services of counsel, a 
relative, or friend. Providing further protections in a particular 
proceeding where circumstances warrant such protections will be the 
responsibility of the deciding Service officer, who may, for example, 
schedule an interview, where appropriate. The Service officer's 
decision on what, if any, additional notice and/or procedure to provide 
the alien will be subject to judicial review. The possibility that the 
Notice of Intent might not suffice to provide constitutionally adequate 
notice in rare circumstances does not suffice to call into question the 
constitutionality of the rule itself, which will provide 
constitutionally sufficient notice in the vast majority of cases. See 
Mathews, 424 U.S. at 909; Califano, 442 U.S. at 696.

3. Fair Opportunity To Respond to the Notice and To Inspect and Rebut 
the Evidence Supporting Deportation

    Comments: Several commenters stated that the proposed rule would 
not provide sufficient time for an alien to respond to the Notice, and 
suggested that the response period be changed to one month. Commenters 
state that respondents who are incompetent, mentally ill, or who do not 
understand the nature of the proceedings, may need more time to obtain 
counsel and to rebut the charge. The comments outlined the numerous 
obstacles that detained aliens may face, such as: language impediments; 
mail delays; an inability to communicate with family, attorneys, and 
potential witnesses; lack of access to law libraries or writing 
materials; and difficulty in producing affidavits, identification 
documents, or birth records. One commenter stated that requiring the 
response to be supported by an affidavit is unnecessary because the 
regulation can provide that any response shall be considered to be made 
under oath. Finally, some commenters stated that the record of 
proceeding should be provided automatically to all aliens, rather than 
only upon an alien's request.
    Response and Disposition: The Service believes that the proposed 
rule provides a fair opportunity for aliens to inspect evidence and 
rebut charges of deportability. Pursuant to 8 CFR 242.25(c)(2), ``[i]f 
an alien's written response requests the opportunity to review the 
Government's evidence, the Service shall serve the alien with a copy of 
the evidence in the record of proceeding upon which the Service is 
relying to support the charge.'' The alien then has ten additional days 
following service of the Government's evidence (thirteen days if 
service is by mail), to furnish a final response in accordance with 8 
CFR 242.25(c) (1)-(2). Pursuant to 8 CFR 242.25(d)(2)(ii)(B), if, after 
the alien's rebuttal of the Notice, the deciding Service officer 
considers additional evidence from a source other than the alien, that 
evidence will also be provided to the alien and still another extension 
of time to respond shall be given. Thus, these regulations already 
provide respondents ample opportunity to inspect all evidence relied 
upon by the Government and contained in the record of proceeding.
    The Service believes that any further increase in the time periods 
for response would contravene Congress' intent that the Service 
expeditiously adjudicate the deportation cases of the serious criminal 
offenders described under section 242A(b) of the Act. Many aliens in 
this class, particularly in county and local jails, are inmates who are 
incarcerated less than a year, and frequently less than six months. 
Expeditious proceedings under section 242A(b) of the Act will prevent 
``spillover'' detention of these short-term inmates into the Service's 
detention, thereby relieving the aliens of further incarceration while 
saving substantial costs to the Service and to the public. Nonetheless, 
if an alien makes a timely written request for more time and explains 
the reasons for doing so--for instance, that the alien needs to contact 
family members or potential witnesses--the deciding Service officer may 
grant an extension for the alien to file a response under 8 CFR 
242.25(c)(1). The deciding Service officer must ensure fairness in the 
adjudicative process. Accordingly, the Service believes that this rule 
provides sufficient opportunity for aliens to respond to the Notice.
    The Service believes that the requirement that the alien request 
access to the evidence in order to receive it is constitutional and 
salutary. As explained above, it is unlikely that the majority of 
aliens covered by the administrative proceedings will contest their 
deportability. This fact counsels against expending the considerable 
cost and burden of sending all evidence to all aliens in the first 
instance. Those aliens who do wish to contest deportation readily can 
receive the evidence upon a simple request. Moreover, section 291 of 
the Act expressly provides that in presenting proof of time, manner, 
and place of entry into the United States, the alien ``shall be 
entitled to the production of his visa or other entry document, if any, 
and of any other documents and records * * *  pertaining to such entry 
in the custody of the Service.'' The Service must therefore produce any 
such documents that are in its possession in accordance with that 
section of the Act.

[[Page 43959]]

    The Service agrees that an alien should not be required to submit 
an accompanying affidavit with his or her response. It is incumbent 
upon the alien to choose his or her own corroborating evidence in 
rebutting a charge. Accordingly, Sec. 242.25(c)(2) has been modified to 
provide that the alien should submit with the response ``affidavit(s), 
documentary evidence, or other specific evidence supporting the 
challenge.''

4. Impartial Fact-Finder

    Comments: Several commenters stated that the rule was unfair or 
unconstitutional because it will permit the issuing Service officer and 
the deciding Service officer both to be enforcement officials who may 
be agents of the same party, such as a District Director. One commenter 
recommended that the rule should explicitly prohibit the deciding 
Service officer from engaging in ex parte communication with the 
issuing Service officer or otherwise considering evidence outside the 
record, because due process requires that the decisionmaker make an 
independent evaluation and consider only evidence on the record that 
the alien has had a fair opportunity to rebut. Another commenter urged 
that the initiation of proceedings under the rule be subject to review 
by the Service's General Counsel, and another expressed concern that 
the rule does not provide adequate checks against Service misconduct.
    Response and Disposition: Congress has provided for administrative 
deportation proceedings to be conducted without a hearing before an 
Immigration Judge. The officers of the Service are in the best position 
to perform such proceedings. The statute mandates that the Final 
Administrative Deportation Order not be issued by the same person who 
issues the Notice of Intent, and the rule reflects this protection.
    The Service believes that the rule reasonably ensures that 
decisions are made by an impartial fact-finder. In order to prevent any 
``blurring'' of investigative and adjudicative functions, the statute 
and the rule expressly forbid the ``deciding'' officer from being the 
same person who issues the charging document. It has been clear for at 
least 40 years that due process is not violated in deportation 
proceedings simply because the deciding official is subject to the 
control of officials charged with investigative and prosecuting 
functions. Marcello v. Bonds, 349 U.S. 302, 311 (1955).
    Since the Service's attorney work force is available to provide 
legal advice to Service personnel, there is no need in the regulation 
to require General Counsel review of administrative proceedings.
    The deciding Service officer is authorized under 8 CFR 242.25(d) to 
issue an order of deportation only if the ``evidence in the record of 
proceeding'' establishing deportability is clear, convincing and 
unequivocal. Thus, that officer is duty-bound to make an independent 
evaluation only of the evidence contained in the four corners of the 
record of proceeding, and may not rely upon evidence outside the record 
of proceeding. In addition, since the deciding Service officer is not 
authorized to make discretionary determinations on eligibility for 
relief in section 242A(b) proceedings, he or she may not consider any 
discretionary factors. Accordingly, the proposed rule has not been 
modified.

5. Termination of Immigration Judge Proceedings Without Prejudice to 
the Service

    Comment: The proposed rule provides that the Service may request 
that proceedings before an Immigration Judge be terminated so that 
administrative deportation proceedings may be initiated. One commenter 
stated that if the Government moves to terminate an Immigration Judge 
proceeding commenced under section 242(b) of the Act, such termination 
should be with prejudice to the Service because the Service should not 
be allowed to ``forum shop'' and reinstate the deportation process in a 
setting where the alien has fewer procedural protections.
    Response and Disposition: The Service may initiate or continue 
proceedings under this rule only if there is no evidence that an alien 
is prima facie eligible for relief. Thus, for example, if after a 
Notice of Intent is issued, the Service discovers that an alien appears 
to be statutorily eligible for relief from deportation, then, pursuant 
to 8 CFR 242.25(d)(2)(iii), the Service must terminate administrative 
deportation proceedings and, where appropriate, initiate deportation 
proceedings under section 242(b) of the Act.
    Conversely, if the Service discovers that an alien who has been 
placed in proceedings before an Immigration Judge in fact is amenable 
to proceedings under section 242A(b) of the Act, it would implement 
Congress' intent for the Service to exercise its prosecutorial 
discretion to move to terminate the Immigration Judge proceedings in 
order to expedite the deportation process. In such a case, the alien's 
eligibility for expedited deportation renders the Immigration Judge 
proceedings unnecessary. Transfer to administrative proceedings in such 
a case would not be ``forum shopping''; rather, it would simply be a 
move to a more efficient and appropriate forum, in accord with 
Congress' intent that administrative proceedings be used for aliens who 
have committed aggravated felonies and who are not lawful permanent 
residents. There is, therefore, no reason that the termination of 
Immigration Judge proceedings should be with prejudice to the Service, 
particularly since the Immigration Judge will have made no decision on 
the substantive issues of deportability under section 241 of the Act or 
relief from deportation. The final rule therefore will remain 
unchanged.

6. Lack of Administrative Appeal

    Comment: A commenter cautioned that execution of Final 
Administrative Deportation Orders should not be completed without 
allowing appeal to the Board of Immigration Appeals (``BIA''), to 
permit an independent review of the evidence by the BIA. This commenter 
stated that such appeals would not delay deportations because appeals 
would be completed while the alien is serving his or her sentence. 
Another commenter stated that, by eliminating any meaningful 
administrative hearing or review, the regulations will place an added 
burden on federal courts, which will be forced to decide issues more 
appropriately resolved on the administrative level.
    Response and Disposition: Congress authorized administrative 
deportation in order to streamline deportation proceedings for a 
certain class of aliens with respect to whom the decision to deport 
typically is straightforward and not subject to discretionary or 
equitable considerations. The rule affords the alien the right to 
petition for judicial review on limited issues, and such a petition 
will be entertained by a federal appellate court, which is an 
independent tribunal with jurisdiction to decide any due process claims 
properly raised. As noted above, many of the inmates described by the 
provisions of section 242A(b) of the Act serve short sentences. County 
and city jail terms of less than a year, and frequently less than six 
months, are often too short to permit Institutional Hearing Program 
hearings prior to Service detention of such aliens. This rule permits 
the Service to serve Notices of Intent to issue a Final Administrative 
Deportation Order upon short-term inmates and more rapidly adjudicate 
their cases before the inmates are released from incarceration. The 
rule 

[[Page 43960]]
thus prevents costly detention at Service expense and appropriately 
eliminates a layer of administrative hearings and administrative 
appeals, which will in turn make it more likely that deportation 
proceedings will be completed before inmates' release from 
incarceration. In addition, some aliens convicted of aggravated 
felonies who have completed their sentences might not be incarcerated 
when first encountered by the Service. The Service must detain and hold 
in custody such aliens, at great expense. The rule reduces the length 
of detention in those cases, as well. Allowing an appeal to the BIA 
would undermine Congress' intent by recreating the undesirable cost, 
delay and detention problems that prompted Congress to act in the first 
instance to permit expedited deportation. Accordingly, the proposed 
rule remains unchanged.
7. Ensuring That Responses Are Timely Included in Records of Proceeding

    Comment: Two commenters expressed concern that, since many offices 
of the Service are not in a position to process mail received on a 
timely basis, the Service may not be able to include an alien's timely 
responses in a record of proceeding in time to prevent the alien from 
receiving a final order of deportation for failure to timely file a 
response. The comments stated that, in such a case, the case should be 
reopened.
    Response and Disposition: The rule specifically requires the 
Service to create and maintain a full record of proceeding in each 
case. The Notice of Intent will facilitate the matching of responses to 
the record of proceeding by providing the alien with the contact person 
to whom the response must be submitted, and an address for that person. 
Like any other court proceeding, Service personnel will be responsible 
for matching documents to the record of proceeding for review and 
adjudication by the deciding Service officer in the district or sector 
where the charging document was issued.
    The deciding Service officer is not precluded from correcting any 
mistake discovered with respect to the timeliness of receipt of any 
document, or any other mistake that is pertinent to the final decision. 
To the contrary, the deciding Service officer may render whatever 
ruling is deemed appropriate that is supported by the record in 
carrying out his or her responsibilities as an adjudicator. 
Furthermore, the integrity of the process in a particular case remains 
subject to judicial review on a petition for review, based upon the 
full record of proceeding.

8. Risk of Deporting U.S. Citizens, Permanent Residents, or Other 
Aliens Ineligible for Deportation or Eligible for Relief From 
Deportation

    Comments: Several commenters stated that the process creates an 
unacceptable risk of deporting a United States citizen or lawful 
permanent resident alien. Commenters also questioned the training and 
expertise of issuing Service officers, arguing that the issues of 
aggravated felony conviction, derivative citizenship, and relief from 
deportation are too complex and should be left to an Immigration Judge. 
One commenter warned that Service officers may initiate expedited 
proceedings against aliens who have a right to hearings before 
Immigration Judges or who are citizens and are not aware of it, and the 
Service will have no incentive to verify derivative citizenship. These 
commenters even recommended that the Attorney General withdraw the 
proposed rule for these reasons.
    Response and Disposition: As previously stated, Congress authorized 
administrative deportation for aliens who are aggravated felons and who 
are not lawful permanent residents. The due process safeguards 
incorporated in this rule are designed precisely to minimize the risk 
of an erroneous determination of deportability, while ensuring 
fairness. As explained above, ``procedural due process rules are shaped 
by the risk of error inherent in the truth-finding process as applied 
to the generality of cases, not the rare exceptions.'' Mathews, 424 
U.S. at 344. Under this rule, the risk of making an erroneous decision 
in the generality of cases is minimal. The questions of citizenship, 
alienage, lawful permanent resident status, conviction for an 
aggravated felony, and statutory eligibility for relief, are matters 
that are well within the expertise and competence of Service officers 
to decide. Indeed, pursuant to other provisions of the Act and other 
regulations, immigration officers already regularly determine issues 
germane to deportability, including: whether an alien is finally 
convicted of an aggravated felony (for purposes of issuing charging 
documents); acquisition of citizenship at birth; derivation of 
citizenship; eligibility for adjustment of status or naturalization; 
and eligibility for any of the forms of relief under the Act. Under 
current law, district directors are authorized to adjudicate a variety 
of applications for immigration benefits, including the authority to 
grant or deny petitions for naturalization.
    Because of the straightforward, nondiscretionary nature of the 
determinations under this rule, there is no reason to believe that 
United States citizens would face a greater risk of deportation before 
the deciding Service officer than before an Immigration Judge. If, 
after the Notice of Intent is issued, an alien appears to be 
statutorily eligible for relief or raises a genuine issue of material 
fact regarding the preliminary findings, then the deciding Service 
officer must either seek additional evidence bearing on the disputed 
issue, or terminate the administrative deportation proceedings.

9. Typographical and Other Non-Substantive Corrections

    Comment: A commenter pointed out that the title for proposed 8 CFR 
242.25(d)(iii) does not make sense as it presently reads.
    Response and Disposition: The commenter is correct that the word 
``Secretary'' in the heading of 8 CFR 242.25(d)(iii) is a typographical 
error, and should read ``Statutory.'' Accordingly, the word 
``Secretary'' is replaced by the word ``Statutory'' in the final rule. 
The substantive text of the above section, nevertheless, was correct 
and sufficiently clear to allow for meaningful comment on this 
provision of the proposed rule. This final rule also makes other non-
substantive corrections to the language of the proposed rule.

10. Favorable Comments

    Comment: One respondent, a metropolitan Chief of Police, pledged to 
give this procedure his full support because it is a positive step in 
dealing with the problems created by criminal undocumented aliens, a 
growing and dangerous segment of the criminal population.
    Response and Disposition: The Service agrees with the commenter 
that the process under the rule will help combat criminal activity of 
deportable aliens in many parts of the country, as Congress intended.

Attorney General Certifications

    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.
    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).
    This rule is not considered to have Federalism implications 
warranting the 

[[Page 43961]]
preparation of a Federalism Assessment in accordance with section 6 of 
Executive Order 12612.

List of Subjects

8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, part 242 of chapter I of title 8 of the Code of 
Federal Regulations is 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 section 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 another immigration 
officer designated by a district director or chief patrol agent, 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 an alien's present statutory eligibility for a specific 
form of relief from deportation under the Immigration and Nationality 
Act (``the 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 an alien a Notice of Intent to issue a Final Administrative 
Deportation Order (Notice of Intent, Form I-851), if the officer is 
satisfied that there is sufficient evidence, based upon questioning of 
the alien by an immigration officer and upon any other evidence 
obtained, 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. (i) 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 Secs. 103.5a(a)(2) and 103.5a(c)(2) of 
this chapter. The Notice of Intent shall set for the preliminary 
determinations and inform the alien of the Service's intention to issue 
a Final Administrative Deportation Order (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: 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; 
may inspect the evidence supporting the Notice of Intent; and may rebut 
the charges within ten (10) calendar days after service of such Notice 
(or thirteen (13) calendar days if service of the Notice was by mail).
    (ii) The Notice of Intent also shall advise the alien that he or 
she may designate in writing, within ten (10) calendar days of service 
of the Notice of Intent (or thirteen (13) 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.
    (iii) The Service shall provide the alien with a list of available 
free legal services programs qualified under part 292a of this chapter 
and organizations recognized pursuant to part 292 of this chapter, 
located within the district or sector where the Notice of Intent is 
issued.
    (iv) The Service must either provide the alien with a written 
translation of the Notice of Intent or explain the contents of the 
Notice of Intent to the alien in the alien's native language or in a 
language that the alien understands.
    (c) Alien's response. (1) Time for response. The alien will have 
ten (10) calendar days from service of the Notice of Intent, or 
thirteen (13) calendar days if service is by mail, to file a response 
to the Notice. If the final date for filing such a response falls on a 
Saturday, Sunday, or legal holiday, the response shall be considered 
due on the next business day. In the response, the alien may: Designate 
his or her choice of country for deportation; submit a written response 
rebutting the allegations supporting the charge and/or requesting the 
opportunity to review the Government's evidence; and/or request in 
writing an extension of time for response, stating the specific reasons 
why such an extension is necessary. Alternatively, the alien may, in 
writing, choose to accept immediate issuance of a Final Administrative 
Deportation Order. The deciding Service officer may extend the time for 
response for good cause shown. A request for extension of time for 
response will not automatically extend the period for the response. The 
alien will be permitted to file a response outside the prescribed 
period only if the deciding Service officer permits it. The alien must 
send the response to the deciding Service officer at the address 
provided in the Notice of Intent.
    (2) Nature of rebuttal or request to review evidence. (i) If an 
alien chooses to rebut the allegations contained in the Notice, the 
alien's written response must indicate which finding(s) are being 
challenged and should be accompanied by affidavit(s), documentary 
information, or other specific evidence supporting the challenge. If 
the alien asserts that he or she is entitled to statutory relief from 
deportation, the alien also should include with the response a 
completed and signed application designed for the relief sought.
    (ii) If an alien's written response requests the opportunity to 
review the Government's evidence, the Service shall serve the alien 
with a copy of the evidence in the record of proceeding upon which the 
Service is relying to support the charge. The alien may, within ten 
(10) calendar days following service of the Government's evidence 
(thirteen (13) calendar days if service is by mail), furnish a final 
response in accordance with paragraph (c)(1) of this section. If the 
alien's final response is a rebuttal of the allegations, such a final 
response should be accompanied by affidavit(s), documentary 
information, or other specific evidence supporting the challenge. If 
the alien asserts that he or she is entitled to statutory relief from 
deportation, the alien also should include with the final response a 
completed and signed application designed for the relief sought.
    (d) Determination by deciding Service officer. (1) No response 
submitted or concession of deportability. If the deciding Service 
officer does not receive 

[[Page 43962]]
a timely response and the evidence in the record of processing 
establishes deportability by clear, convincing, and unequivocal 
evidence, or if the alien concedes deportability, then the deciding 
Service officer shall issue and cause to be served upon the alien a 
Final Administrative Deportation Order that states the reasons for the 
deportation decision. The alien may knowingly and voluntarily waive in 
writing the 30-day waiting period before execution of the final order 
of deportation provided in paragraph (f) of this section.
    (2) Response submitted. (i) Insufficient rebuttal; no prima facie 
claim or genuine issue of material fact: If the alien timely submits a 
rebuttal to the allegations, but the deciding Service officer finds 
that deportability is established by clear, convincing, and unequivocal 
evidence in the record of proceeding, and that the alien has not 
demonstrated a prima facie claim of eligibility for relief from 
deportation under the Act, the deciding Service officer shall issue and 
cause to be served upon the alien a Final Administrative Deportation 
Order that states the reasons for the deportation decision.
    (ii) Additional evidence required. (A) If the deciding Service 
officer finds that the record of proceeding, including the alien's 
timely rebuttal, raises a genuine issue of material fact regarding the 
preliminary findings, the deciding Service officer may either obtain 
additional evidence from any source, including the alien, or cause to 
be issued an order to show cause to initiate deportation proceedings 
under section 242(b) of the Act. The deciding Service officer also may 
obtain additional evidence from any source, including the alien, if the 
deciding Service officer deems that such additional evidence may aid 
the officer in the rendering of a decision.
    (B) If the deciding Service officer considers additional evidence 
from a source other than the alien, that evidence shall be made a part 
of the record of proceeding, and shall be provided to the alien. If the 
alien elects to submit a response to such additional evidence, such 
response must be filed with the Service within ten (10) calendar days 
of service of the additional evidence (or thirteen (13) calendar days 
if service is by mail). If the deciding Service officer finds, after 
considering all additional evidence, that deportability is established 
by clear, convincing, and unequivocal evidence in the record of 
proceeding, and that the alien does not have a prima facie claim of 
eligibility for relief from deportation under the Act, the deciding 
Service officer shall issue and cause to be served upon the alien a 
Final Administrative Deportation Order that states the reasons for the 
deportation decision.
    (iii) Statutory eligibility for relief; conversion to proceedings 
under section 242(b) of the Act. If the deciding Service officer finds 
that the alien is not amenable to deportation under section 242A(b) of 
the Act or has presented a prima facie claim of 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, cause to be issued 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 accordance with this section.
    (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 alien is subject to deportation pursuant to 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 deportation order of deciding Service officer. 
(1) Time of execution. Upon the issuance of a Final Administrative 
Deportation Order, the Service shall issue a warrant of deportation in 
accordance with 8 CFR 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 alien knowingly, voluntarily 
and in writing waives the 30-day period. The 72-hour provisions of 
Sec. 243.3(b) of this chapter shall not apply.
    (2) Country to which alien is to be 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, 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 if, in accordance with 
Sec. 242.2(h) of this chapter, the alien demonstrates that he or she is 
not a threat to the community and is likely to appear at any scheduled 
hearings. The decision of the deciding Service officer concerning 
custody or bond shall not be administratively appealable during 
proceedings initiated under section 242A(b) of the Act and this 
section.
    (h) Record of proceeding. The Service shall maintain a record of 
proceeding 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 
(including any supplemental memorandum of decision); the alien's 
response, if any; all evidence in support of the charge; and any 
admissible evidence, briefs, or documents submitted by either party 
respecting deportability or relief from deportation.

PART 299--IMMIGRATION FORMS

    3. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    4. Section 299.1 is amended by adding the entries for Forms ``I-
851'' and ``I-851A'' to the listing of forms, in proper numerical 
sequence, to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
               Edition                                                  
  Form No.       date                         Title                     
------------------------------------------------------------------------
                                                                        
            *         *         *         *         *                   
I-851          04-06-95  Notice of Intent to Issue Final Administrative 
                          Deportation Order.                            
I-851A         04-06-95  Final Administrative Deportation Order.        
                                                                        
                                                                        
            *         *         *         *         *                   
------------------------------------------------------------------------

    Dated: August 17, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-20946 Filed 8-23-95; 8:45 am]
BILLING CODE 4410-01-M