[Federal Register Volume 62, Number 2 (Friday, January 3, 1997)]
[Proposed Rules]
[Pages 444-517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33166]
[[Page 443]]
_______________________________________________________________________
Part II
Department of Justice
_______________________________________________________________________
Immigration and Naturalization Service and Executive Office for
Immigration Review
_______________________________________________________________________
8 CFR Part 1, et al.
Inspection and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of Removal Proceedings; Asylum Procedures; Proposed
Rule
Federal Register / Vol. 62, No. 2 / Friday, January 3, 1997 /
Proposed Rules
[[Page 444]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service and Executive Office for
Immigration Review
8 CFR Parts 1, 3, 103, 204, 207, 208, 209, 211, 212, 213, 214, 216,
217, 221, 223, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241,
242, 243, 244, 245, 246, 248, 249, 251, 252, 253, 274a, 286, 287,
299, 316, 318, and 329
[INS No. 1788-96; AG Order No. 2065-96]
RIN 1115-AE47
Inspection and Expedited Removal of Aliens; Detention and Removal
of Aliens; Conduct of Removal Proceedings; Asylum Procedures
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the regulations of the Immigration
and Naturalization Service (Service) and the Executive Office for
Immigration Review (EOIR) governing the conduct of both expedited and
regular removal proceedings, and handling of asylum claims. The
regulation addresses other activities involving the apprehension,
detention, hearing of claims and ultimately the removal of inadmissible
and deportable aliens. In addition, this rule incorporates a number of
changes which are a part of the Administration's reinvention
initiative, mandated in a directive signed by the President on March 4,
1995, requiring all heads of departments and agencies to conduct a
page-by-page review of all regulations and to eliminate or revise those
that are outdated or otherwise in need of reform. This rule is
necessary to implement the provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA) and the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA).
DATES: Written comments must be submitted on or before February 3,
1997.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please refer INS number 1788-96 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
For matters relating to the Executive Office for Immigration Review--
Peggy Philbin, General Counsel, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041,
telephone number (703) 305-0470; for asylum issues--Michael Shaul,
Field Manual Project Office, Immigration and Naturalization Service,
425 I Street NW., ULLB-4th Floor, Washington, DC 20536, telephone
number (202) 616-7439; for inspections issues--Linda Loveless, Office
of Inspections, Immigration and Naturalization Service, 425 I Street
NW., Room 4064, Washington, DC 20536, telephone number (202) 616-7489;
for detention and removal issues--Len Loveless, Office of Detention and
Deportation, Immigration and Naturalization Service, 425 I Street NW.,
Room 3008, Washington, DC 20536, telephone number (202) 616-7799.
SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, enacted on September
30, 1996, amends the Immigration and Nationality Act (Act) in several
ways. This rule proposes to implement the IIRIRA by creating a new,
expedited removal process for aliens attempting to enter the United
States through fraud or misrepresentation or without proper documents
while providing a mechanism for the determination and review of
applicants who demonstrate a credible fear of persecution if returned
to their own country. It consolidates exclusion and deportation
proceedings into one unified removal proceeding. It revises the asylum
process.
It provides that persons who are present in the United States
without inspection are considered applicants for admission and
indicates that such persons will not be subject to expedited removal
unless and until the INS Commissioner invokes the provisions in the
statute and this rule allowing her to expand the use of the expedited
removal process to include such individuals. Also, various sections of
IIRIRA have revised and expanded the grounds of inadmissibility
(formerly exclusion grounds).
The effective date of the changes implementing the expedited
removal process is April 1, 1997. The Antiterrorism and Effective Death
Penalty Act of 1996, Public Law 104-132, was enacted April 24, 1996.
Many of its major provisions were superseded by IIRIRA before they
became effective. Several of the remaining provisions will be
implemented with this rulemaking.
Taken together, the provisions of IIRIRA have made pervasive
changes in the laws governing admission, inspection, removal, and
detention of aliens--eliminating or revising old standards, creating
new ones, and reorganizing and revising numerous provisions of existing
law. In some respects, even after the effective date of the new
provisions, existing legal standards will still be applied with respect
to legal matters initiated prior to that date. The length of this
rulemaking document alone--only one of the regulatory actions necessary
to implement IIRIRA-- demonstrates the breadth and complexity of these
changes.
Congress directed that the provisions of Title III-A of IIRIRA take
effect on April 1, 1997, and also directed that the Attorney General
publish implementing regulations by March 1, 1997. A five-month period
is an extremely short time frame for completing the regulatory process
for a rule of this magnitude, given the time needed to draft the rule,
coordinate with interested agencies, complete the regulatory review
process by OMB pursuant to Executive Order 12866, and allow time for
public comment. In particular, it means that there is not adequate time
for the usual rulemaking model of 60 days public notice.
Because of these exigencies, the Department has limited the public
comment period on this proposed rule to 30 days. However, in order to
provide a fuller opportunity for public input on the numerous issues
addressed in this rulemaking, the Department will allow a 120-day
comment period on the Interim Rule when that is published by the
beginning of March, prior to the development of a Final Rule.
As of the date this document was submitted for publication, Public
Law 104-208 had not been printed. The conference report accompanying
the House version of the bill, however, contains the provisions of
IIRIRA. See H.R. Conf. Rep. No. 863, 104th Cong. 2d Sess., at 561. The
Act should be printed in its entirety in the next few weeks.
Applicants for Admission and Arriving Aliens
Section 302 of IIRIRA amends section 235(a) of the Act to describe
as applicants for admission both aliens who are arriving in the United
States (whether or not they arrive at a designated port-of-entry) and
aliens present in the United States who have not been admitted. This
section also includes aliens brought to the United States after having
been interdicted in international or United States waters. Prior to the
enactment of the IIRIRA, aliens apprehended after entering the
[[Page 445]]
United States without inspection were subject to deportation
proceedings under section 242 of the Act. By considering such aliens to
be applicants for admission, this amendment significantly changes the
manner in which aliens who have entered the United States without
inspection are considered under the Act.
In some instances, IIRIRA distinguishes between the broader term
``applicants for admission'' and a narrower group, ``arriving aliens.''
For clarity, ``arriving alien'' has now been specifically defined in 8
CFR part 1. The proposed definition of ``arriving alien'' in section
1.1(q) includes aliens arriving at a port-of-entry, aliens interdicted
at sea, and aliens previously paroled upon arrival. The term ``arriving
alien'' could also include other classes of aliens, e.g., those
apprehended crossing a land border between ports-of-entry. The
Department would value commentary on the proper scope of the regulatory
definition.
Parole of Aliens
The proposed rule amends Sec. 212.5 to permit chief patrol agents
to authorize parole from Service custody of aliens who have not been
admitted to the United States. The regulations previously allowed the
district director to exercise this authority for emergent reasons or
when strictly in the public interest. Because many of the aliens
apprehended and processed under the jurisdiction of a chief patrol
agent will now be considered applicants for admission, this change is
necessary to allow discretionary release of those aliens in the
particular circumstances enumerated in Sec. 212.5.
Custody of Aliens Applying at Land Border Ports-of-entry
The proposed regulation implements a new provision added to section
235(b)(2) of the Act to state that an applicant for admission arriving
at a land border port-of-entry and subject to a removal hearing under
section 240 of the Act may be required to await the hearing in Canada
or Mexico. This simply adds to statute and regulation a long-standing
practice of the Service. If the alien fails to appear for the hearing,
the immigration judge may order the alien removed in absentia.
Withdrawal of Application for Admission
Section 302(a) of IIRIRA incorporates into section 235(a)(4) of the
Act the longstanding practice used by the Service to permit applicants
for admission to voluntarily withdraw their applications for admission
to the United States, in lieu of removal proceedings, and to depart
immediately. Permitting an alien to withdraw his or her application for
admission allows the Service to better manage its resources by removing
inadmissible aliens quickly at little or no expense to the Government,
and may be considered instead of expedited or regular removal when the
circumstances of the inadmissibility may not warrant a formal removal.
The option to permit withdrawal is solely at the discretion of the
Government, and is not a right of the alien. An immigration judge may
allow only arriving aliens to withdraw an application for admission.
Such a grant should ordinarily require the Service's concurrence once
the issue of inadmissibility or deportability has been resolved. During
the pendency of an appeal from an order of removal, permission to
withdraw must be obtained from the immigration judge or the Board of
Immigration Appeals (Board).
Expedited Removal of Certain Applicants for Admission
Pursuant to section 302(a) of IIRIRA, aliens who attempt to enter
the United States by fraud or misrepresentation or who arrive without
valid entry documents may be removed under an expedited process without
further hearing or review. An exception is provided for Cuban nationals
arriving by aircraft at a port-of-entry. Aliens who are inadmissible on
other grounds will be referred for proceedings before an immigration
judge under the new removal provisions of section 240 of the Act.
Although not required by statute, the proposed regulation provides for
review and approval of the expedited removal order by a supervisory
immigration officer prior to removal of the alien. The expedited
removal order bars reentry for 5 years following the removal, or 20
years in the case of a second or subsequent removal, unless the alien
obtains advance permission to reenter the Untied States.
The Department requests public comment regarding the appropriate
use of the authority conferred by the statute upon the Attorney General
to expand the class of aliens subject to expedited removal. Section
235(b)(1)(A)(iii) of the Act permits the Attorney General, in her sole
and unreviewable discretion, to apply expedited removal to aliens not
admitted or paroled (and not described in section 235(b)(1)(H)) who
cannot establish continuous physical presence in the United States for
the previous two years.
Under the proposed rule, expedited removal will generally apply
only to ``arriving aliens,'' as defined in section 1.1(q), i.e., aliens
arriving at a port-of-entry, aliens interdicted at sea, and aliens
previously paroled upon arrival. The Commissioner may, however, elect
to apply the expedited removal procedures to additional classes of
aliens within the limits set by the statute, if, in the Commissioner's
discretion, such action is operationally warranted. The Commissioner's
designation may be localized, in response to specific needs within a
particular region, or nationwide, as appropriate. The designation would
become effective upon publication in the Federal Register, except where
circumstances require immediate implementation. The Department would
value commentary on two alternative approaches as well: (1) application
of expedited removal only to ``arriving aliens''; and (2) application
of expedited removal to all aliens not admitted or paroled (and not
described in section 235(b)(1)(F) who cannot demonstrate continuous
physical presence for the previous two years.
Finally, commentary on the proper scope of the term ``arriving
alien'' would be helpful to the Department in implementing section
235(b)(1). The proposed regulatory definition in section 1.1(q)
includes aliens arriving at a port-of-entry, aliens interdicted at sea,
and aliens previously paroled upon arrival. The term ``arriving alien''
could also include other classes of aliens, e.g., those apprehended
crossing a land border between ports-of-entry.
Review of Claim to Lawful Permanent Resident, Refugee, or Asylee Status
in Expedited Removal
An expedited removal order entered against an alien by an
immigration officer at the time of arrival or by an asylum officer
following a determination that the alien does not have a credible fear
of persecution is not subject to administrative appeal, but may be
reviewed by an immigration judge upon request of the alien. An
exception is provided in section 235(b)(1)(C) of the act for an alien
who claims under oath or under penalty or perjury to be a lawful
permanent resident, to have been admitted as a refugee under section
207 of the Act, or to have been granted asylum under section 208 of the
Act.
Before entering an expedited removal order against these aliens,
the Service will attempt to verify the alien's claim to lawful
permanent resident, refugee, or asylee status. If a claim to lawful
permanent resident status is verified, the examining officer will
determine whether the alien is considered an applicant for admission
within the
[[Page 446]]
meaning of section 101(a)(13) of the Act. Section 301(a) of IIRIRA
amended section 101(a)(13) of the Act to provide that an alien lawfully
admitted for permanent residence is not seeking admission unless the
alien has abandoned or relinquished that status, has been absent for a
continuous period in excess of 180 days, has engaged in illegal
activity after having departed the United States, has departed while
under legal process seeking removal, has committed certain criminal
offenses, or is attempting to enter at a time or place other than as
designated or has not been inspected and admitted to the United States.
If the verified lawful permanent resident is determined to be an
applicant for admission, the officer may consider appropriate
discretionary waivers, if applicable, such as a waiver of documents
under section 211(b) or other administrative options.
Current regulations do not provide for a waiver of documents or
similar options for refugees and asylees who seek to reenter the United
States without a refugee travel document. The regulations at
Sec. 223.2(b)(2) require that an application for a refugee travel
document be filed before a refugee or asylee departs from the United
States. The regulations also require at Sec. 223.1(b) that a refugee or
asylee must have a refugee travel document to return to the United
States after temporary travel abroad unless he or she is in possession
of a valid advance parole document. The combination of these two
provisions has resulted in a few refugees and asylees (who had no
intention of abandoning their status in the United States at the time
of their departure) not being able to be readmitted in such status.
With the advent of the expedited removal provisions, including the
procedure for a review by an immigration judge of a claim to refugee or
asylee status, the need for a formal process for dealing with such
individuals has become more critical. The Service proposes to address
the problem by giving district directors the discretionary authority to
accept an application for a refugee travel document from an alien who
is outside the United States, provided that alien: (1) held bonafide
refugee or asylee status in the United States at the time of his or her
departure from the United States, (2) did not intend to abandon such
refugee or asylee status, (3) did nothing while outside the United
States which would be inconsistent with refugee or asylum status, (4)
has been outside the United States for less than one year (the maximum
period of time for which the refugee travel document can be issued),
and (5) files the requisite Form I-131, Application for a Travel
Document, with the appropriate fee. Upon the filing and approval of
such application, the alien may be readmitted to the United States as
if he or she were in possession of a valid refugee travel document,
provided the alien is otherwise admissible.
If the immigration officer determines that an alien verified to
have once held the status of a lawful permanent resident, refugee, or
asylee does not merit a waiver, the officer will not issue an expedited
removal order; rather, the officer may place the alien in removal
proceedings under section 240 of the Act, Section 235(b)(1)(C) of the
Act does not specify what should occur if an alien actually establishes
to the satisfaction of an inspecting officer or an immigration judge
that he or she is a lawful permanent resident, refugee, or asylee.
However, section 242(e)(4) of the amended Act provides that if an alien
appealing an expedited removal order to Federal district court
establishes by a preponderance of the evidence that he or she is a
lawful permanent resident, has been admitted as a refugee, or has been
granted asylum, then the district court may order that the alien be
provided a hearing under section 240 of the Act. In light of these
judicial review provisions that would result in such aliens receiving a
regular removal proceeding under section 240 of the Act, the Department
considers a referral into section 240 removal proceedings upon
verification of such status by an immigration officer or demonstration
of such status to an immigration judge to be the most practical and
efficient implementation of these provisions.
In cases where the alien's claim to lawful permanent resident,
refugee, or asylee status cannot be verified, the immigration officer
or the asylum officer will order the alien removal under section
235(b)(1)(A)(i) of the Act or for a credible fear determination under
section 235(b)(1)(B)(iii), and then refer the alien to an immigration
judge for review of the order. If the judge determines that the alien
is not a lawful permanent resident, has not been admitted as a refugee,
or has not been granted asylum under section 208 of the Act, the order
issued by the examining immigration officer or asylum officer will be
effected and the alien will be removed from the United States under
that order. No further review is available. If the judge determines
that the alien was once admitted and/or currently is a lawful permanent
resident, refugee, or asylee, the order will be canceled and
proceedings under section 235(b)(1) of the Act will be terminated. The
Service may then admit the alien or pursue any other grounds of
inadmissibility or deportability under section 212 or 237 of the Act in
a removal proceeding pursuant to section 240 of the Act, if
appropriate.
Revision of Asylum Procedures
The regulation proposes to amend 8 CFR part 208 to create new
procedures for the consideration of asylum applications as mandated by
section 604 of IIRIRA, to make certain other changes which are not
mandated by IIRIRA, but that will significantly improve the asylum
process, and to streamline the existing regulations in accordance with
the principles discussed elsewhere in the supplementary information.
Of special significance are the provisions in the regulation
providing the immigration judges with exclusive jurisdiction over
certain categories of asylum applications, including those filed by
alien crewmen, stowaways who establish a credible fear of persecution,
aliens covered by the Visa Waiver Pilot Program, aliens subject to
removal under section 235(c) of the Act, and aliens who have applied
for or received an ``S'' visa. Under the current regulations, some of
these classes of aliens (stowaways, crewmen, and aliens removable under
section 235(c) of the Act) receive only an interview with an asylum
officer which is reviewed directly by the Board. However, some problems
have arisen with these procedures, most significantly, the difficulty
of generating a reliable and complete record and the absence of a
government-provided interpreter in asylum officer interviews. The
Department believes that giving the immigration judges exclusive
jurisdiction over such determinations will certify these problems while
still maintaining the high quality and consistency of the interview and
decision-making process which the public has come to expect.
The proposed rule's treatment of section 208(a)(2) of the Act,
which establishes a number of new grounds barring an alien from
applying for asylum, is equally important. Regarding section
208(a)(2)(C) of the Act, which bars an alien from applying for asylum
if the alien had a previous asylum application denied, the rule makes
clear that this provision applies only to asylum applications that have
been denied by an immigration judge or the Board. This ensures that
aliens who received a denial of their application from an asylum
officer because they applied for asylum while in valid status or under
procedures in place prior to January 1995 receive consideration of
[[Page 447]]
their application by an immigration judge. The rule also interprets the
terms ``changed circumstances'' and ``extraordinary circumstances'' in
section 208(a)(2)(D) of the Act as those terms apply to the 1-year bar
in section 208(a)(2)(B) of the Act. The regulation provides minimal
guidance on the meaning of the term ``changed circumstances.''
Nevertheless, because of the novelty of the ``extraordinary
circumstances'' exception to the 1-year bar, the rule offers a
regulatory interpretation of this term. While the Department considered
having the regulation identify specific examples of extraordinary
circumstances that would justify a waiver of the one-year filing
requirement, the proposed rule opts in favor of a provision that
generally defines the term as events or factors beyond the alien's
control that caused the failure to meet the one-year deadline. The
regulation also provides that the alien file the application as soon as
practicable under those circumstances. Thus, an event or factor of
relatively brief duration would be insufficient to excuse the filing of
an application long after the deadline. In our view, such a general
definition provides guidance to decision makers while offering more
flexibility than a definition by example would. Nevertheless, we can
imagine several examples that would likely satisfy this definition: the
applicant suffered a physical or mental disability that prevented a
timely filing; the applicant was under a legal disability (e.g., an
unaccompanied minor) during the one-year period; or the applicant
received ineffective assistance of counsel, as that concept has been
interpreted by the Board of Immigration Appeals, resulting in a failure
to file a timely application. Nevertheless, because of both the novelty
and importance of these new provisions, the Department welcomes
suggestions from the public on how best to implement them.
The proposed rulemaking also offers guidance on how to apply
section 208(d)(6) of the Act, which provides that an alien who
knowingly makes a frivolous asylum application shall be permanently
ineligible for any benefits under the Act. At Sec. 208.18, the rule
first provides that such determinations may only be made in a final
order by an immigration judge or the Board of Immigration Appeals. The
rule also defines an application as ``frivolous'' if it is fabricated
or brought for an improper purpose. In doing so, the Department is
carrying out one of the central principles of the asylum reform process
begun in 1993; to discourage applicants from making patently false
claims.
It should be noted that the proposed rule does not discuss
Sec. 208.19 dealing with the admission of the spouse and children of an
alien granted asylum status. This topic was the subject of a separate
proposed rule published July 9, 1996. See 61 FR 35,984 (1996). That
separate rulemaking will be incorporated into the overall asylum
regulations once it is finalized.
Credible Fear Determination and Claims of Asylum or Fear of
Persecution by Alien Subject to Expedited Removal
Under the new section 235(b)(1)(A)(ii) of the Act, an alien subject
to expedited removal who indicates an intention to apply for asylum or
who expresses a fear of persecution will be referred to an asylum
officer to determine if the alien has a credible fear of persecution.
Credible fear of persecution is defined in section 302(a) of IIRIRA to
mean that ``there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of the
alien's claim and such other facts as are known to the officer, that
the alien could establish eligibility for asylum under section 208.''
Interviews to determine whether an alien has a credible fear of
persecution will be conducted by an asylum officer, either at the port-
of-entry or at designated locations such as detention centers. For
purposes of this credible fear interview, an asylum officer is defined
in the Act as an immigration officer who has had professional training
in country conditions, asylum law, and interview techniques comparable
to that provided to full-time adjudicators of applications under
section 208, and is supervised by an officer who meets the same
criteria and who has had substantial experience adjudicating asylum
applications. This definition may include officers other than full-time
asylum officers, provided they have undergone the necessary training
and have the requisite supervision, but the Service will generally
attempt to assign full-time asylum officers to the task of determining
credible fear. Prior to the interview, the alien may consult with a
person or persons of his or her own choosing at no cost to the
Government, provided it does not unreasonably delay the process.
The asylum officer will make a determination whether the alien has
a credible fear of persecution. Service procedures will require that
the determination be reviewed by a supervisory asylum officer. The
supervisory asylum officer may direct the asylum officer to interview
the applicant further, or to research country conditions or other
matters relevant to the decision. If the supervisory asylum officer
agrees that the alien has not demonstrated a credible fear of
persecution, the alien will be ordered removed under the provisions of
section 235(b)(1)(B)(iii)(I) of the Act. If the alien requests review
of the determination that he or she has not demonstrated a credible
fear of persecution, the credible fear determination will be promptly
reviewed by an immigration judge. The alien will have the opportunity
to be heard and questioned by the immigration judge. This review will
be limited solely to the issue of credible fear, and may be conducted
either in person or by telephonic or video connection. By statute, the
review should be conducted as soon as possible following the credible
fear determination, preferably within 24 hours, and no later than seven
days after the date of determination. The alien will be detained during
this review period, and if found by the immigration judge not to have a
credible fear, will be promptly removed.
Section 235(b)(1)(B)(ii) of the Act provides that aliens who are
determined by an asylum officer to have a credible fear of persecution
will be detained for further consideration of the asylum claim. While
the statute does not specify how or by whom this further consideration
should be conducted, the proposed rule provides for such consideration
by an immigration judge in removal proceedings conducted pursuant to
section 240 of the Act. In the removal hearing, the immigration judge
will make a determination whether alien is eligible for asylum under
section 208 of the Act or for withholding of removal under section
241(b)(3) of the Act. The removal order will be subject to
administrative review by the Board in accordance with section 240 of
the Act and Sec. 3.1(b)(3).
Credible fear determinations are also made in the case of
stowaways. Although not entitled to removal proceedings under section
240 of the Act, a stowaway who has been determined by an asylum officer
(or by an immigration judge upon review of a negative determination by
an asylum officer) to have a credible fear of persecution may file an
asylum application to be adjudicated by an immigration judge in asylum-
only proceedings. There is no appeal from the decision of an
immigration judge as to whether the stowaway has a credible fear of
persecution. A stowaway who is found not to have a credible fear will
be
[[Page 448]]
expeditiously removed. However, a stowaway who meets the credible fear
threshold and is allowed to present an asylum or withholding of removal
application in a proceeding before an immigration judge may appeal the
resulting decision to the BIA.
Proposed Changes Not Mandated by IIRIRA
The rulemaking also proposes to remove Secs. 208.13(b)(2)(ii) and
208.16(b)(4) which require that adjudicators give ``due consideration
to evidence that the government of the applicant's country of
nationality or last habitual residence persecutes its nationals or
residents if they leave the country without authorization or seek
asylum in another country.'' The regulations accomplish little and are
potentially misleading in their current form. The term ``due
consideration'' provides little guidance. Moreover, the question of
whether punishment for a migration-related offense is ``persecution''
hinges on an evaluation of the circumstances of each case. Under
current law, prosecution for migration-related offenses does not
ordinarily amount to persecution. Since the provision does not offer
any assistance in adjudicating claims involving prosecution for
unauthorized departure, we propose removing it from the regulations.
The rule provides a special regulation to govern the application of
section 243(h)(3) of the Act, a provision added by section 413(f) of
AEDPA that was eliminated by section 307 of IIRIRA. That section
provided that, notwithstanding any other provision of law, the Attorney
General could grant an alien withholding of deportation if she
determined that it was necessary to do so to ensure compliance with the
1967 Protocol Relating to the Status of Refugees. In new section
241(b)(3)(B) of the Act, the only change Congress made to the existing
bars to withholding of deportation was to require, in the case of an
alien convicted of an aggravated felony (or felonies), that the alien
receive an aggregate term of imprisonment of at least 5 years before
such crime or crimes are automatically considered to be particularly
serious. We understand this change to reflect Congress' conclusion that
the bars to withholding of deportation or removal are consistent with
the United States' obligations under the 1967 Protocol Relating to the
Status of Refugees, except potentially in the case of an aggravated
felon who receives less than a 5-year aggregate sentence. The
Department proposes a regulatory interpretation of section 243(h)(3)
that is consistent with this most recently expressed view of the
Congress. Thus, the rule provides that an alien may attempt to obtain
relief under section 243(h)(3) of the Act only if he or she is an
aggravated felon who received an aggregate sentence of less than 5
years and can establish that the crime or crimes of which he or she has
been convicted are not particularly serious. This will require a case-
by-case determination whether the crime or crimes committed by the
alien are particularly serious. Only if the crime is determined not to
be particularly serious will the alien be entitled to have his or her
withholding of deportation claim considered. Because section 243(h)(3)
of the Act was eliminated by IIRIRA, this rule applies only to
applications for withholding made in proceedings commenced prior to
April 1, 1997, so long as a final action on any such withholding
request was not taken prior to April 24, 1996, the date of AEDPA's
passage.
Establishment of a Fee for Filing an Application for Asylum
This rulemaking does not propose to establish a fee for filing an
application for asylum or to expand the situations under which fees may
be charged for asylum-based applications for work authorization,
despite the statutory permission to do so contained in section
208(d)(3) of the Act. Should the Department decide to do so at a later
date, that action would be part of a separate rulemaking.
Employment Authorization for Asylum Applicants
The proposed regulations will continue to allow asylum applicants
to apply for an employment authorization document (EAD) once the asylum
application has been pending for 150 days, which is 30 days before the
new statutorily-mandated time for granting such authorization contained
in section 208(d)(2) of the Act.
Rules of Procedure for Executive Office for Immigration Review
Implementation of IIRIRA will impact the rules of procedure for
proceedings before the Executive Office for Immigration Review. These
proposed rules amend the regulations to expand the scope of the rules
of procedure to include new removal proceedings in provisions regarding
motions to reopen and reconsider, jurisdiction and commencement of
proceedings, stipulated requests for orders, in absentia hearings,
public access to hearings, and additional charges. The proposed rules
also add provisions regarding the scheduling of removal cases, custody
and bond in removal proceedings, and contents of the Notice of Appear
form.
Subpoenas by Immigration Judges
Section 304 of IIRIRA bestows upon immigration judges the
statutory authority to issue subpoenas for the attendance of witnesses
and presentation of evidence in removal proceedings. This subpoena
power had previously been granted to immigration judges by regulation
only and the immigration judges had to enlist the district director to
invoke the aid of the district court for failure to comply with the
subpoena. The proposed rule amends the subpoena provisions to provide
that an immigration judge directly invokes the aid of the district
court for an order requiring the compliance with a subpoena instead of
requiring the district director to take such action.
New Removal Proceedings
Section 240 of the Act as amended by section 304(a) of IIRIRA
merges the separate proceedings of exclusion and deportation into one
removal proceeding. In this single proceeding, the immigration judge
will determine whether an alien is inadmissible under section 212 of
the Act or deportable under section 237 (formerly section 241) of the
Act. In light of these statutory changes, individuals in removal
proceedings are referred to in the proposed rule as determined to be
removable or ordered removed after being found to be either
inadmissible or deportable (but no longer will be referred to as
excludable or excluded). Removal proceedings will in nearly all
respects resemble present day deportation or exclusion proceedings,
with some minor differences outlined below and implemented by this
proposed rule.
Although not as a result of any provision of IIRIRA, the Department
is soliciting public comments on whether these regulations should
include a provision for appointment of a guardian ad litem in a case
where a minor or incompetent respondent in removal proceedings is
otherwise unrepresented.
Applicability of New Removal Provisions
The IIRIRA provides that the newly created removal procedures and
the new amended forms of relief available in removal proceedings which
appear in title III-A of IIRIRA will apply to all individuals placed
into removal proceedings on or after April 1, 1997, and will not affect
individuals who
[[Page 449]]
were in deportation or exclusion proceedings prior to April 1, 1997.
See Section 309(a) of IIRIRA. For this reason, the proposed rule
preserves the former regulations relating to deportation and exclusion
proceedings for those individuals who will continue on in such
proceedings after April 1, 1997. The proposed rule preserves such
provisions by retaining current regulatory provisions previously
contained in 8 CFR parts 236, 242, and 244 within separate new subparts
of part 240. In addition, sections formerly contained in parts 237 and
243 have been retained in new subparts of part 241. A more detailed
description of the entire reorganization of effected parts of title 8
is contained later in this supplementary information.
The Notice to Appear (Form I-862)
The charging document which commences removal proceedings under
section 240 of the Act will be referred to as the Notice to Appear,
Form I-862, replacing the Order to Show Cause, Form I-221, that was
used to commence deportation proceedings and the Notice to Detained
Applicant of Hearing Before an Immigration Judge, Form I-110. The
Notice to Appear must contain nearly all of the information that was
required to be in the Form I-221. The regulations reflect the fact that
section 304 of IIRIRA did not retain the requirement that the Notice to
Appear be provided in Spanish; that the mandatory period between
service of a Notice to Appear and the date of an individual's first
hearing is 10 days rather than the 14 days required for the Order to
Show Cause; that service of the Notice to Appear by ordinary mail,
rather than certified mail, is sufficient if there is proof of
attempted delivery to the last address provided by the alien and noted
in the Central Address File; and that no written notice need be
provided if the alien has failed to provide his or her address as
required under the amended Act.
In addition, the proposed rule implements the language of the
amended Act indicating that the time and place of the hearing must be
on the Notice to Appear. The Department will attempt to implement this
requirement as fully as possible by April 1, 1997. Language has been
used in this part of the proposed rule recognizing that such automated
scheduling will not be possible in every situation (e.g., power
outages, computer crashes/downtime.)
Burdens of Proof in Removal Proceedings
The proposed regulation restates the burden of proof language in
section 240(c) of the Act as revised by section 304(a) of IIRIRA. In
removal proceedings in which an alien is charged with deportability,
the Service must establish deportability by clear and convincing
evidence. This replaces the clear, convincing, and unequivocal standard
set forth in Woodby v. INS, 385 U.S. 276 (1966). An applicant for
admission to the United States must establish that he or she is clearly
and beyond a doubt entitled to be admitted and is not inadmissible. In
the case of an alien present in the United States without being
admitted or paroled, once the Service establishes alienage, the alien
must prove that he or she is clearly and beyond a doubt entitled to be
admitted and is not inadmissible, unless the alien proves by clear and
convincing evidence that he or she is lawfully present pursuant to a
prior admission.
Cancellation of Removal
The proposed rule provides for the application by qualified
individuals in removal proceedings for the new form of relief created
by section 304(a) of IIRIRA: cancellation of removal. Cancellation of
removal comes in two forms. The first form, available to lawful
permanent residents, is similar to relief under section 212(c) of the
pre-IIRIRA Act, except that only 5 years of the required 7 years of
residence to statutorily qualify for this form of cancellation of
removal need be fulfilled as a lawful permanent resident. This means
that up to 2 years of the 7 years can be satisfied with temporary
residence. This provision codifies the interpretation by a number of
Federal circuit courts that a period of temporary residence counts
toward the 7-year residency requirement for relief under section 212(c)
of the pre-IIRIRA Act.
The second form of cancellation of removal resembles suspension of
deportation under section 244 of the pre-IIRIRA Act, except that an
applicant for the second form of cancellation of removal must
demonstrate continuous physical presence for 10 years instead of 7
years, and must show ``exceptional and extremely unusual hardship''
instead of ``extreme hardship.'' Further, unlike suspension of
deportation, this form of cancellation of removal is not available for
aliens who can only show hardship to themselves. The proposed rule also
implements the availability of this second form of cancellation of
removal to a battered spouse or child who can demonstrate 3 years of
continuous physical presence in the United States and who shows that
removal would result in ``extreme hardship'' to the battered spouse,
his or her child, or the battered child's parent.
Administrative Motions To Reopen and Reconsider Removal Proceedings
Section 304(a) of IIRIRA added a number of motions procedures to
the Act regarding the reopening or reconsideration of a final order of
removal. For the most part, these new statutory provisions encompass
the new procedures implemented by EOIR's new motions and appeals
regulation, which took effect on July 1, 1996. However, the statute
does place the time and number restrictions for motions specifically on
the alien. The proposed rule implements this change by adding a
provision to indicate that in removal proceedings, the restrictions
only apply to the alien and not to the Service. In addition, unlike the
pre-IIRIRA regulations excepting motions to reopen exclusion or
deportation orders rendered in absentia from both the 90-day and 1-
motion restrictions, the statute only excepts motions to reopen removal
orders rendered in absentia from the 90-day time period and not the
numerical restriction. The proposed rule implements this change as
well.
Proceedings To Review Asylum Claims by Certain Aliens Not Eligible
for Section 240 Proceedings
This rule established a new Notice of Referral to Immigration
Judge, Form I-863, to be used to institute limited proceedings before
an immigration judge. This referral form will be used by immigration
officers to initiate review by an immigration judge for asylum or
withholding of removal claims by Visa Waiver Pilot Program (VWPP)
refusal cases and VWPP status violators, crew members, aliens ordered
removed pursuant to section 235(c) of the Act, aliens present pursuant
to section 101(a)(15)(S) of the Act, and alien stowaways found to have
a credible fear of persecution. This proceeding is limited solely to
the asylum or withholding claim and no other forms of relief may be
presented by the alien or considered by the immigration judge.
Asylum officers will also use the Notice of Referral for expedited
removal cases where the alien seeks review of a ``no credible fear''
finding by the asylum officer in section 235(b)(1) proceedings or for
stowaways, prior to the execution of the expedited removal order or
removal of the stowaway.
In addition, the Notice of Referral will be used to institute an
immigration judge review of expedited removal orders issued against
aliens claiming to be lawful permanent residents, refugees or asylees.
In such cases, the immigration judge will review the
[[Page 450]]
expedited removal order, which may either be affirmed or canceled.
Existing regulations regarding deportable VWPP aliens who claim
asylum state that the alien will be referred for a determination of
deportability. The current regulations for VWPP applicants arriving at
ports-of-entry are vague, stating only that the alien will be referred
to an immigration judge for further inquiry. The proposed change will
clarify that VWPP applicants and status violators are to be provided a
hearing and appeal on the asylum and withholding claim only.
Existing regulations provide that a crewman, stowaway, or alien
temporarily excluded under section 235(c) of the Act file an
application for asylum with the district director and that the district
director forward it to an asylum officer for adjudication. The Attorney
General has determined that these claims should be adjudicated by an
immigration judge. This determination to adjudicate the asylum claims
for these classes of aliens in a proceeding before an immigration judge
is in response to recent case law holding that stowaway asylum
applicants must be afforded the same asylum procedures deemed necessary
for other aliens. In Marincas v. Lewis, 92 F.3d 195, 200-201 (3rd Cir.
1996), the court held that the plain language of the Refugee Act left
no room to construe the statue to permit differing asylum procedures
for stowaways. Although the Department with that holding, the Attorney
General has found that providing a proceeding before an immigration
judge to hear the asylum claim will address the concerns raised in
Mirancas, while remaining consistent with the statutory directives to
limit due process for these classes of aliens. As required by IIRIRA, a
stowaway will receive a credible fear determination by an asylum
officer prior to the referral to an immigration judge.
Reorganization of Certain Regulatory Sections
The IIRIRA substantially revised sections of the Act relating to
the arrest of aliens suspected of inadmissibility to or unlawful
presence in the United States, detention of such aliens prior to and
during removal proceedings, the conduct of removal proceedings, and
ancillary issues such as voluntary departure and available forms of
relief. The Service and EOIR have jointly undertaken a complete
revision of the affected parts of title 8, to bring the relevant
regulatory parts into alignment with the new sections of the Act. The
newly revised sections are organized in the following manner: 8 CFR
part 236, Subpart A--Detention of aliens prior to order of removal,
Subpart B--Family Unity Program; 8 CFR part 238--Expeditious removal of
aggravated felons; 8 CFR part 239--Initiation of removal proceedings; 8
CFR part 240, Subpart A--Removal proceedings, Subpart B--Cancellation
of removal, Subpart C--Voluntary departure, Subpart D--Exclusion of
aliens (for proceedings commenced prior to April 1, 1997); Subpart E--
Proceedings to determine deportability of aliens in the United States:
Hearing and Appeal (commenced prior to April 1, 1997); Subpart F--
Suspension of deportation and voluntary departure (for proceedings
commenced prior to April 1, 1997); Subpart G--Civil penalties for
failure to depart; 8 CFR part 241, Subpart A--Post-hearing detention
and removal, Subpart B--Deportation of Excluded Aliens (for hearings
commenced prior to April 1, 1997), Subpart C--Deportation of Aliens in
the United States (for hearings commenced prior to April 1, 1997); 8
CFR parts 237, 242, and 243 have been removed and reserved; 8 CFR part
244 will now contain regulations pertaining to the Temporary Protected
Status program.
Sections of the old regulations which are still applicable to
proceedings commenced prior to April 1, 1997, have been retained, but
moved to new parts of the regulations as separate subparts according to
topic. For example, the regulations relating to the conduct of
proceedings, formerly contained in 8 CFR part 242, have been moved to 8
CFR part 240, which contains regulations for the conduct of removal
proceedings.
Most sections of the regulations have not been retained in this
manner. They have been totally revised, in conformity with the new
statute. In some instances, these regulations distinguish between
situations involving aliens ``grandfathered'' under former statutory
authority and those encompassed by the provisions of IIRIRA. For
example, new Sec. 252.2(b) contains separate provisions for alien
crewmen who arrived prior to April 1, 1997, and those who arrive after
that date.
Because the Service and EOIR have concerns about the serious
restructuring of these regulations, the public is invited to comment on
the approach taken by this rulemaking. In particular, the Service
wishes to solicit comments concerning any possible unintended
consequences of the restructuring, such as the inclusion of new
sections which encompass aliens entitled to consideration under ``old''
provisions.
Apprehension, Custody, and Detention of Aliens
This rule incorporates the changes made to section 242 of the Act
by section 440(c) of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Public Law 104-132 as well as section 303(a) of the
IIRIRA. By enactment of AEDPA, Congress altered the provisions created
by section 504 of the Immigration Act of 1990 (IMMACT), Public Law 101-
649, enacted November 29, 1990, relating to release of lawfully
admitted aliens who had been convicted of aggravated felonies. The
AEDPA directed the Attorney General to detain aliens convicted of
aggravated felonies without bond and extended the mandatory detention
provisions to aliens deportable for conviction of certain other
felonies. The IIRIRA extended the mandatory detention provisions to
additional classes of inadmissible and deportable aliens but provided
an exception for certain witnesses. It also allowed the Attorney
General the option of a transition period for implementation of
mandatory detention. The INS exercised this discretion and implemented
the transition period custody rules on October 9, 1996, effective for 1
year. The Act is very clear as to which aliens may be released. This
rule proposes to amend the Service's regulations to comply with the
amended Act by removing the release from custody provisions for aliens
who may no longer be released. These amendments to the regulations will
take effect upon the termination of the transition period. As for non-
criminal aliens, the rule reflects the new $1,500 minimum bond amount
specified by IIRIRA. Otherwise, the proposed rule essentially preserves
the status quo for bond determination by the Service and bond
redetermination proceedings before immigration judges. Despite being
applicants for admission, aliens who are present without having been
admitted (formerly referred to as aliens entering without inspection)
will be eligible for bond and bond redetermination.
Expedited Deportation Procedures for Aliens Convicted of Aggravated
Felonies Who Are Not Lawful Permanent Residents
This rule incorporates the changes made to section 242A(b) of the
Act by section 442 of the AEDPA and section 304(c) of the IIRIRA. By
enactment of the AEDPA, Congress made several changes to the expedited
administrative deportation procedure authorized under section 130004 of
the Violent Crime Control and Law Enforcement Act of
[[Page 451]]
1994, Public Law 103-322. Some of these changes were modified by the
IIRIRA and one was eliminated. This rule proposes to amend the
Service's regulations to comply with the amended Act as follows: aliens
who have lawful permanent residence on a conditional basis under
section 216 of the Act are subject to expedited administrative
deportation procedures and have been included in the regulation. Since
section 238(b)(5) of the Act states that an alien subject to these
proceedings is ineligible for any relief from removal, all references
to prima facie eligibility for relief and to relief from deportation
have been removed. This revision also eliminates references to release
from custody, since aliens subject to these proceedings are now
statutorily ineligible for release as a result of changes to other
sections of the Act.
Voluntary Departure
The proposed rule outlines how voluntary departure will be handled
at various stages of proceedings. Prior to the initiation of
proceedings, the Service has sole jurisdiction to grant voluntary
departure for a period not to exceed 120 days. The Service may impose
any conditions it deems necessary to ensure the alien's timely
departure from the Untied States, including the posting of a bond,
continued detention pending departure and removal under safeguards.
After proceedings have been commenced and at any time up to 30 days
subsequent to the master calendar, the immigration judge may grant
voluntary departure for a period not to exceed 120 days. In each
instance, the alien will be required to present to the Service travel
documents sufficient to assure lawful entry into the country to which
the alien is departing, unless such document is not necessary for the
alien's return.
An alien may be granted voluntary departure at the conclusion of
proceedings if the immigration judge finds that the alien meets the
conditions of section 240B(b) of the Act. The judge may impose such
conditions as he or she deems necessary to ensure the alien's timely
departure from the United States, but in all cases, the alien shall be
required, within 5 days of the order, to post a voluntary departure
bond of no less than $500. In order for the bond to be canceled, the
alien must provide proof of departure to the district director. If the
alien fails to depart, or to meet any of the conditions attached to the
grant of voluntary departure, such order will vacate and the alternate
order of deportation will stand.
Section 304(a) of IIRIRA makes significant changes to both the
nature and duration of voluntary departure. Under the new law,
voluntary departure is clearly meant to be granted to aliens illegally
in the United States who are able and willing to depart in a relatively
short period of time. It will no longer be available to those who are
seeking to significantly extend their time in the United States for
other reasons. If fact, the time periods which will be allowed for
voluntary departure are such that they meet or exceed the normal
processing time for applications for employment authorization. In light
of these changes, the Department is eliminating the provisions
currently contained in 8 CFR parts 242 and 274a which permit the
granting of work authorization to aliens who have been given voluntary
departure.
New section 240B of the Act and the corresponding regulations
represent a significant departure from the predecessor provisions for
voluntary departure. Public comments regarding the Department's
approach to implementation of this provision will be particularly
welcome.
Reinstatement of Removal Orders Against Aliens Illegally Reentering
Section 241(b)(5) of the Act requires the Attorney General to
reinstate the removal order for an alien who illegally reenters the
United States after having been removed or after having departed
voluntarily under a removal order. Removal would be accomplished under
the proposed rule without referral to an Immigration Court. Although
the Act previously contained a provision for reinstatement of a final
order of deportation, the accompanying regulation required the issuance
of an order to show cause and a hearing before an immigration judge.
This resulted in limited use of the provision. The proposed rule
provides a procedure for a district director to reinstate a final order
upon establishing identity and unlawful reentry of a previously
deported or removed alien found in the United States. Once identity is
affirmed, the original order will be executed.
Detention and Removal of Aliens Ordered Removed
This rule incorporates the changes made to section 241 of the Act
by section 305(a) of IIRIRA. Section 241 of the Act now relates to the
period for removal of aliens, post-order detention and removal of
aliens, reinstatement of final orders, and detention and removal of
stowaways.
This rule provides for the assumption of custody during the removal
period, allows detention beyond the period, and provides condition for
discretionary release and supervision of aliens who cannot be removed
during the period. A district director may issue a warrant of removal
based on a final administrative order of removal. The warrant of
removal will authorize the Service to take an alien in the United
States into custody during the removal period. The Service is required
to assume custody of any alien within the United States once the 90-day
removal period begins, as defined in section 241 of the Act, and detain
the alien until removal or expiration of the removal period. At the
expiration of the removal period, the Service has the discretion to
release an alien. If the alien shows to the satisfaction of the
district director that the alien is not a threat to the community and
is likely to report for removal, the district director may release the
alien on an order of supervision. As a condition or release, an
authorized officer may require the posting of a bond, impose
restrictions on conduct, and require periodic reporting to a designated
officer. The district director may grant employment authorization as
specified in the Act. The district director retains the authority to
grant humanitarian stays of removal.
This rule restates the principle, previously found at Sec. 243.5,
that an alien who departs the United States while a final order is
outstanding has executed the order.
Detention and Removal of Stowaways
The arrival of stowaways in the United States, particularly aboard
cargo vessels, has long been a problem for both the transportation
companies and the Service. Section 308(e) of IIRIRA has stricken former
section 273(d) of the Act, which governed stowaways and section 305 of
IIRIRA has clearly defined the responsibilities for stowaways and costs
of detention in the new section 241 of the Act. All stowaways are
deemed to be inadmissible under the Act and are not entitled to a
hearing on admissibility. Those with a credible fear of persecution may
seek asylum in accordance with 8 CFR part 208 in proceedings before an
immigration judge.
Under the provisions of section 241 of the Act, the carrier (which
includes the owner, agent, master, commanding officer, person in
charge, purser, or consignee) is responsible for detaining the
stowaways on board the vessel or aircraft (or at another approved
location) until completion of the inspection, and may not permit the
alien to leave the vessel or aircraft, unless authorized by the Service
for either medical treatment,
[[Page 452]]
detention by the Service, or removal of the stowaways. The Service may
order that the stowaway be removed on the vessel or aircraft of arrival
when that is the most practical manner of removal. With the mutual goal
of removing stowaways by the most expeditious and secure means, the
Service will generally favor any reasonable request to remove the
stowaway on other than the vessel or aircraft of arrival. The carrier
must make all travel arrangements, including obtaining any necessary
travel documents.
Since asylum-seeking stowaways may not be removed pending a final
decision on their asylum claim, which may sometimes extend for a
lengthy period, the statute limits the detention liability of the owner
of the vessel or aircraft. The owner is now responsible for a period of
time needed to determine whether the stowaway has a credible fear of
persecution, and a reasonable period, beginning when a credible fear is
found to exist, during which the asylum application may be considered.
The statute and regulations allow for up to 72 hours to arrange and
conduct the credible fear interview, although the Service anticipates
that this will occur as expeditiously as possible, depending on the
location and circumstances of the stowaway's arrival. If the stowaway
is allowed to pursue his or her asylum application, the statute
provides 15 working days, excluding Saturdays, Sundays, and holidays,
for the asylum claim to be heard, at the expense of the owner of the
vessel or aircraft. Any detention required beyond that time period will
be at the expense of the Service. The carrier remains liable for
removal, including removal expenses, if the alien is denied asylum.
Adjustment of Status
Adjustment of status is granted in the discretion of the Attorney
General. Consistent with Congress' intent that arriving aliens, as that
term is defined in Sec. 1.1(g), be removed in an expedited manner
through the procedures provided in section 235(b)(1) of the Act, the
Attorney General has determined that she will not favorably exercise
her discretion to adjust the status of arriving aliens who are ordered
removed pursuant to section 235(b)(1) of the Act or who are placed in
removal proceedings under section 240 of the Act. Of course, any such
alien who has been persecuted or has a reasonable fear of persecution
may request asylum in expedited removal. Arriving aliens who are
granted asylum may then adjust their status outside of the removal
proceeding context. In all other instances, those apprehended after
arriving illegally in the United States should have no other benefit
available to them, and should not be permitted to delay their removal
through an application for adjustment of status. Any other arriving
alien who is eligible to receive an immigrant visa will be required to
return to his or her country of residence and request it through the
consular process available to all aliens outside of the United States.
If the Service decides as a matter of prosecutorial discretion, not to
initiate removal proceedings but to parole the arriving alien, the
alien will be able to apply for adjustment of status before the
district director.
Disposition of Cases of Aliens Arrested in the United States
The regulation proposes to amend Sec. 287.3 to differentiate the
actions that must be taken when an alien is apprehended entering or
attempting to enter the United States in violation of the immigration
laws, or is otherwise found in the United States in violation of those
laws. Disposition of the case will vary depending on the circumstances
of entry or attempted entry, or the specific violation with which the
alien is charged. This section is amended to include those cases that
may now be processed under the expedited removal provisions of section
235(b)(1) of the Act, if such provisions are invoked by the
Commissioner.
Elimination of Mexican Border Visitor's Permit
The Mexican Border Visitor's Permit, Form I-444, is a record of
entry issued by the Service at land border ports-of-entry along the
United States/Mexico border to holders of Nonresident Alien Border
Crossing Cards, Forms I-186 and I-586. The Nonresident Alien Border
Crossing Card is issued in place of a nonimmigrant visa. Currently,
Form I-444 is issued when the requested visit to the United States will
be for more than 72 hours but less than 30 days in duration or when
requested travel is more than 25 miles from the United States/Mexico
border but within the five states of Arizona, California, Nevada, New
Mexico, or Texas. The Service also issues Form I-444 to Mexican
nationals who are in possession of valid Mexican passports and
multiple-entry nonimmigrant visas requesting admission to the United
States under the limitations described above.
The current Form I-444 has been in use since 1983 and the Service
now issues over 200,000 of these forms per month. Due largely to its
lack of security features and the absence of standardization between
ports, Form I-444 is widely counterfeited. The Service has been unable
to demonstrate that there is a connection between the limits on travel
by persons issued Forms I-444 and immigration violations. These
restrictions should be lifted and applicants for admission should be
admitted as any other person in possession of a B-1 or B-2 visa is
admitted.
This regulation proposes to remove references to the issuance of
the form and the section requiring a fee for issuance of Form I-444. A
provision is added requiring the issuance of Form I-94, and collection
of the fee, for Mexican nationals seeking to enter for more than 72
hours and/or to travel further than 25 miles from the United States/
Mexico border. The Form I-94 issued to a B-2 visitor for pleasure is
normally valid for 6 months. The proposed rule provides in
Sec. 235.1(f) that a Form I-94 issued at a land border port-of-entry is
valid for multiple entries unless otherwise indicated.
Streamlining and Updating of Regulations
The President has directed each agency to undertake a review of its
regulations for the purpose of reducing the regulations or, when
possible, rendering them more readable and comprehensible. See E.O.
12866, 58 FR 51,735 (1993). The Service is engaging in a thorough line-
by-line review of all regulations in Title 8 of the Code of Federal
Regulations.
Updated Sections
References to the former section 212(a)(17) of the Act dealing with
the Attorney General's consent to apply for readmission have been
removed from Sec. 217.2(b) and replaced with the current citation.
References throughout 8 CFR part 235 to special inquiry officers have
been replaced with the title ``immigration judge.'' References to
regional commissioners have been replaced with references to regional
directors. The regulatory language contained in Secs. 238.1, 238.2,
238.3, and 238.5 has been moved to 8 CFR part 233, to conform with
redesignation of those statutory sections by the IIRIRA. Lists of
carriers signatory to agreements with the Service for carriage to
transit passengers and preinspection have been removed form the
regulations and will be maintained by the Headquarters Office of
Inspections.
Terminated Programs
References to initial (not replacement) application procedures in
Sec. 235.12 for Form I-777, Northern Mariana Card, have been removed as
the application
[[Page 453]]
period for that form expired in July 1990. Section 235.9, dealing with
refugee admissions, has been removed as that procedure is no longer
followed and its subject is now governed by section 207 of the Act.
Provisions in Sec. 211.2 dealing with waivers of passport requirements
for third-preference immigrants have been removed as that category of
immigrant no longer exists. Terms which were appropriate in referring
to exclusion and deportation procedures have been changed to reflect
the single removal process.
Removal of Purely Procedural Matters Involving Only Internal
Service Processes
The discussion of internal Service procedures regarding the
admission of immigrant children formerly found in Sec. 211.4 has been
removed. Language in Sec. 211.5 relating to admission procedures for
alien commuters has been removed in favor of placing such information
into Service Field Manuals. Examples dealing with alien crewmen, as
well as Canadian nationals, have been removed from Sec. 235.1. Part 232
of 8 CFR dealing with the procedures for notification of the master or
agent of an arriving vessel when arriving aliens were placed in
detention for mental or physical examination has been removed since it
is addressed in Service manuals. Language dealing with procedures for
completion of entry documents for nonimmigrant aliens, Mexican border
crossers, bearers of Mexican diplomatic passports, and paroled aliens
in 8 CFR part 235 has been removed. Language in Sec. 235.2 relating to
deferred inspection procedures for incapacitated or incompetent aliens
has also been removed. Section 235.4 dealing solely with Service
procedures for endorsing documents evidencing admission has been
revised to address the withdrawal of an application for admission. The
former Sec. 251.1(d), dealing with the notations to be made on Service
forms when inspecting crewmen, has been incorporated into Service
manuals.
Elimination of Duplication
Duplicative references have been removed. Language in Sec. 217.2,
relating to eligibility for the Visa Waiver Pilot Program, has been
removed as it merely restates the eligibility requirements contained in
the Act. Language in Sec. 217.3 and throughout relating to Visa Waiver
Pilot Program participants' eligibility for other immigration benefits
and readmission after departure to contiguous territory has been
removed as it merely restates the Act and is covered by other
regulations in this part.
Streamlining
Section 211.1. has been restructured in its entirety to make it
easier to comprehend. The provisions relating to admission of children
of lawful permanent residents formerly contained in Sec. 211.2 have
been consolidated into the general waiver provisions of section
Sec. 211.1. Language formerly in Sec. 211.2(b) which referred to other
code sections by description has been replaced by a simple citation.
Sections 211.3, 211.4, and 235.9 have been removed and reserved as
their contents are addressed in other sections of this part. The 8 CFR
part 251, relating to alien crewmen, longshore work, and vessels has
been restructured and clarified.
Unnecessary recitals of the law have been removed in the following:
Sec. 211.5(b), relating to forfeiture of an I-551 upon loss of resident
status by a commuter alien; and Sec. 217.1, which merely restates
statutory language regarding eligibility for admission under the Visa
Waiver Pilot Program. The 8 CFR part 217 has been streamlined by
consolidating various definitions throughout that part into one
section. Confusing language in Sec. 217.3 has been streamlined with
regard to readmission under the Visa Waiver Pilot Program of an alien
who has departed to contiguous territory or an adjacent island has been
streamlined.
Other Changes
In addition, conforming and purely editorial or grammatical
revisions have been made, as appropriate.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that the rule will not have a significant adverse
economic impact on a substantial number of small entities because of
the following factors. This rule affects only Federal government
operations by codifying statutory amendments to the Immigration and
Nationality Act primarily regarding the examination, detention, and
removal of aliens from the United States. It affects only individuals
and does not impose any reporting or compliance requirements on small
entities.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), because it will have a significant economic impact on the Federal
government in excess of $100,000,000. No economic impact is anticipated
for state and local governments. The Service projects significant
increases in detention-related costs due to the provisions of IIRIRA
which mandate the custody of criminal aliens who have committed two or
more crimes involving moral turpitude, aliens convicted of firearms
offenses, and aliens who have been convicted of an aggravated felony.
The type of crime that will qualify as an ``aggravated felony'' has
been greatly expanded under IIRIRA. In addition, all aliens, even non-
criminal aliens, who are subject to a final administrative order of
removal must be held in custody until the alien can be removed from the
United States. If the person is not removed within 90 days he or she
may be released from custody.
The Commissioner has notified Congress pursuant to section 303(b)
of IIRIRA that the Service lacks sufficient space to immediately
implement the mandatory custody provisions. This notification will
delay for 1 year full implementation of the new mandatory custody
provisions. Section 303(b) also provides for an additional 1-year delay
in implementation of the mandatory custody provisions upon a second
certification that space and personnel are inadequate to comply with
the requirement. The Service estimates that the cost to enforce the
requirement to detain all criminal aliens will be at least
$205,000,000. Of that total, personnel costs account for $65,284,000
which include detention and deportation officers ($32,873,000),
investigators ($25,501,000), legal proceedings personnel ($4,968,000),
and administrative support ($1,942,000). Non-personnel requirements are
projected to be at least $139,732,000 which includes increases in
bedspace and related alien custody requirements ($82,782,000--funds
3,600 beds @ $63.00 per day), increases in alien travel expenses
($36,000,000-3,600 removals @ $1,000 each), and detention vehicle
expenses ($20,950,000). The Service is currently in the process of
projecting the cost of the IIRIRA requirements that we detain all
aliens with administratively final orders of deportation pending their
removal.
In addition to these detention related costs, the Service estimates
that the expenses for training employees on the provisions of the new
law and the regulations will be $2,977,500. The cost to the Service
related to additional forms or changes needed to current forms is
estimated to be $2,000,000 (until the final list of form requirements
is completed it is not possible to more accurately assess this cost).
Finally, the Department believes there may be some
[[Page 454]]
increases needed for immigration judges to review credible fear
determinations made under section 235(b) of the INA.
The EOIR estimates increases in its costs related to IIRIRA-
mandated immigration judge review of credible fear determinations
(which must be made under stringent time frames) and the prompt
immigration judge review which IIRIRA requires of certain expedited
removal orders entered against aliens claiming to be lawful permanent
residents, asylees or refugees. Further, EOIR projects costs associated
with the need for an Immigration Court presence in nearly ever port-of-
entry, which will result from the above-mentioned credible fear review
and expedited removal review process. Also, there will be costs related
to the overall need for an increased Immigration Court presence at
existing Service detention centers to support the processing of the
additional detainees that will result from the implementation of this
rule. Similarly, EOIR anticipates a need for construction of new
Immigration Courts at new detention facilities the Service may open as
a result of this rule's implementation.
Although there are still a number of unknown variables which could
affect the total costs to EOIR to implement its part of the new
expedited removal process and to respond to the increased number of
detained individuals in proceedings under this rule, EOIR estimates
that the total annual cost for EOIR could be as high as $25,000,000. Of
that total, the cost for hiring new immigration judges and legal
support staff is projected to be $21,300,000. The cost for new video
and audio teleconfering equipment is estimated at $3,000,000. Training
costs are expected to be approximately $400,000. Finally, forms and
other support requirements are estimated to cost $300,000.
Small Business Regulatory Enforcement Act of 1996
At this time the Department considers this rule a ``major rule'' as
defined in 5 U.S.C. Sec. 804(2).
Executive Order 12612
The regulations proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988
This proposed rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been forwarded to the Office of Management and Budget under the Paper
Reduction Act. The OMB control numbers for these collections are
contained in 8 CFR 299.5, Display of control numbers.
List of Subjects
8 CFR Part 1
Administrative practice and procedure, Immigration.
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and recordkeeping requirements.
8 CFR Part 204
Administrative practice and procedure, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 207
Administrative practice and procedure, Refugees, Reporting and
recordkeeping requirements.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 209
Aliens, Immigration, Refugees.
8 CFR Part 211
Immigration, Passports and visas, Reporting and recordkeeping
requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 213
Immigration, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens.
8 CFR Part 216
Administrative practice and procedure, Aliens.
8 CFR Part 217
Air carriers, Aliens, Maritime carriers, Passports and visas.
8 CFR Part 221
Aliens, Surety bonds.
8 CFR Part 223
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 232
Aliens, Public health.
8 CFR Part 233
Administrative practice and procedure, Air carriers, Government
contracts, Travel.
8 CFR Part 234
Air carriers, Aircraft, Airports, Aliens.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 237
Aliens.
8 CFR Part 238
Administrative practice and procedure, Aliens.
8 CFR Part 239
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 243
Administrative practice and procedure, Aliens.
8 CFR Part 244
Administrative practice and procedure, Aliens.
[[Page 455]]
8 CFR Part 245
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 246
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 248
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 249
Aliens, Immigration, Reporting and recordkeeping requirements.
8 CFR Part 251
Air carriers, Aliens, Maritime carriers, Reporting and
recordkeeping requirements, Crewmen.
8 CFR Part 252
Air carriers, Airmen, Aliens, Maritime carriers, Reporting and
recordkeeping requirements, Crewmen.
8 CFR Part 253
Air carriers, Airmen, Aliens, Maritime carriers, Reporting and
recordkeeping requirements, Seamen.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 286
Air carriers, Immigration, Reporting and recordkeeping
requirements.
8 CFR Part 287
Immigration, Law enforcement officers.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
8 CFR Part 316
Citizenship and naturalization, Reporting and recordkeeping
requirements.
8 CFR Part 318
Citizenship and naturalization.
8 CFR Part 329
Citizenship and naturalization, Military personnel, Veterans.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 1--DEFINITIONS
1. The authority citation for part 1 is revised to read as follows:
Authority: 8 U.S.C. 1101.
2. Section 1.1 is amended by revising paragraph (l), and by adding
new paragraphs (q) and (r) to read as follows:
Sec. 1.1 Definitions.
* * * * *
(l) The term immigration judge means an attorney whom the Attorney
General appoints as an administrative judge within the Executive Office
for Immigration Review, qualified to conduct specified classes of
proceedings, including a hearing under section 240 of the Act. An
immigration judge shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe, but shall
not be employed by the Immigration and Naturalization Service.
* * * * *
(q) The term arriving alien means an alien who seeks admission to
or transit through the United States, as provided in 8 CFR part 235, at
a port-of-entry, or an alien who is interdicted in international or
United States waters and brought into the United States by any means,
whether or not to a designated port-of-entry, and regardless of the
means of transport. An arriving alien remains such even if paroled
pursuant to section 212(d)(5) of the Act.
(r) the term respondent means a person named in a Notice to Appear
issued in accordance with section 239(a) of the Act, or in an Order to
Show Cause issued in accordance with Sec. 242.1 of this chapter as it
existed prior to April 1, 1997.
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
3. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3
CFR, 1949-1953 Comp., p. 1002.
4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),
(b)(3), (b)(7), (b)(9), and (b)(10) to read as follows:
Sec. 3.1 General authorities.
* * * * *
(b) * * *
(1) Decisions of Immigration Judges in exclusion cases, as provided
in 8 CFR part 236, Subpart D.
(2) Decisions of Immigration Judges in deportation cases, as
provided in 8 CFR part 240, Subpart E, except that no appeal shall lie
from an order of an Immigration Judge under 8 CFR part 240, Subpart F,
granting voluntary departure within a period of at least 30 days, if
the sole ground of appeal is that a greater period of departure time
should have been fixed.
(3) Decisions of Immigration Judges in removal proceedings, as
provided in 8 CFR part 240.
* * * * *
(7) Determinations relating to bond, parole, or detention of an
alien as provided in 8 CFR part 236, Subpart A and 8 CFR part 240,
Subpart E.
* * * * *
(9) Decisions of Immigration Judges in asylum proceedings pursuant
to Sec. 208.2(b) of this chapter.
(10) Decisions of Immigration Judges relating to Temporary
Protected Status as provided in 8 CFR part 244.
* * * * *
5. Section 3.2 is amended by:
a. Revising the section heading;
b. Revising paragraph (b)(2);
c. Revising paragraph (c)(2) and (c)(3), and by
d. Revising paragraphs (d) through (f), to read as follows:
Sec. 3.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(b) * * *
(2) A motion to reconsider a decision must be filed with the Board
within 30 days after the mailing of the Board decision or on or before
July 31, 1996, whichever is later. A party may file only one motion to
reconsider any given decision and may not seek reconsideration of a
decision denying a previous motion to reconsider. In removal
proceedings pursuant to section 240 of the Act, an alien may file only
one motion to reconsider a decision that the alien is removable from
the United States.
(c) * * *
(2) Except as provided in paragraph (c)(3) of this section, a party
may file only one motion to reopen deportation or exclusion proceedings
(whether before the Board or the Immigration Judge) and that motion
must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be
reopened. Except as provided in paragraph (c)(3) of this section, an
alien may file only one motion to reopen removal proceedings (whether
before the Board or the Immigration Judge) and that motion must be
filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be
reopened.
(3) In removal proceedings pursuant to section 240 of the Act, the
time limitation set forth in paragraph (c)(2) of this section shall not
apply to a motion to reopen filed pursuant to the
[[Page 456]]
provisions of Sec. 3.23(b)(4)(ii). The time and numerical limitations
set forth in paragraph (c)(2) of this section shall not apply to a
motion to reopen proceedings:
(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1)
or Sec. 3.23(b)(4)(iii)(A)(2);
(ii) To apply or reapply for asylum or withholding of deportation
based on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered, if such evidence
is material and was not available and could not have been discovered or
presented at the previous hearing;
(iii) Agreed upon by all parties and jointly filed. Notwithstanding
such agreement, the parties may contest the issues in a reopened
proceeding; or
(iv) Filed by the Service in exclusion or deportation proceedings
when the basis of the motion is fraud in the original proceeding or a
crime that would support termination of asylum in accordance with
Sec. 208.22(f) of this chapter.
* * * * *
(d) Departure, deportation, or removal. A motion to reopen or a
motion to reconsider shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or removal proceedings
subsequent to his or her departure from the United States.
(e) Judicial proceedings. Motions to reopen or reconsider shall
state whether the validity of the exclusion, deportation, or removal
order has been or is the subject of any judicial proceeding and, if so,
the nature and date thereof, the court in which such proceeding took
place or is pending, and its result or status. In any case in which an
exclusion, deportation, or removal order is in effect, any motion to
reopen or reconsider such order shall include a statement by or on
behalf of the moving party declaring whether the subject of the order
is also the subject of any pending criminal proceeding under the Act,
and, if so, the current status of the proceeding. If a motion to reopen
or reconsider seeks discretionary relief, the motion shall include a
statement by or on behalf of the moving party declaring whether the
alien for whose relief the motion is being filed is subject to any
pending criminal prosecution and, if so, the nature and current status
of that prosecution.
(f) Stay of deportation. Except where a motion is filed pursuant to
the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the
filing of a motion to reopen or a motion to reconsider shall not stay
the execution of any decision made in the case. Execution of such
decision shall proceed unless a stay of execution is specifically
granted by the Board, the Immigration Judge, or an authorized officer
of the Service.
* * * * *
Subpart B--Immigration Court
b. In Part 3, the heading of Subpart B is revised as set forth
above.
7. Section 3.9 is revised to read as follows:
Sec. 3.9 Chief Immigration Judge.
The Chief Immigration Judge shall be responsible for the general
supervision, direction, and scheduling of the Immigration Judges in the
conduct of the various programs assigned to them. The Chief Immigration
Judge shall be assisted by Deputy Chief Immigration Judges and
Assistant Chief Immigration Judges in the performance of his or her
duties. These shall include, but are not limited to:
(a) Establishment of operational policies; and
(b) Evaluation of the performance of Immigration Courts, making
appropriate reports and inspections, and taking corrective action where
indicated.
8. Section 3.10 is revised to read as follows:
Sec. 3.10 Immigration Judges.
Immigration Judges, as defined in 8 CFR part 1, shall exercise the
powers and duties in this chapter regarding the conduct of exclusion,
deportation, removal, and asylum proceedings and such other proceedings
which the Attorney General may assign them to conduct.
9. Section 3.11 is revised to read as follows:
Sec. 3.11 Administrative control Immigration Courts.
An administrative control Immigration Court is one that creates and
maintains Records of Proceedings for Immigration Courts within an
assigned geographical area. All documents and correspondence pertaining
to a Record of Proceeding shall be filed with the Immigration Court
having administrative control over that Record of Proceeding and shall
not be filed with any other Immigration Court. A list of the
administrative control Immigration Courts with their assigned
geographical areas will be made available to the public at any
Immigration Court.
Subpart C--Immigration Court--Rules of Procedure
10. In part 3, the heading of Subpart C is revised as set forth
above.
11. Section 3.12 is amended by revising the last sentence, and
adding a new sentence at the end of the section, to read as follows:
Sec. 3.12 Scope of rules.
* * * Except where specifically stated, these rules apply to
matters before Immigration Judges, including, but not limited to,
deportation, exclusion, removal, bond, rescission, departure control,
and asylum proceedings. The sole procedures for review of credible fear
determinations by Immigration Judges are provided for in Sec. 3.42.
12. Section 3.13 is revised to read as follows:
Sec. 3.13 Definitions.
As used in this subpart:
Administrative control means custodial responsibility for the
Record of Proceeding as specified in Sec. 3.11.
Charging document means the written instrument which initiates a
proceeding before an Immigration Judge. For proceedings initiated prior
to April 1, 1997, these documents include an Order to Show Cause, a
Notice to Applicant for Admission Detained for Hearing before
Immigration Judge, and a Notice of Intention to Rescind and Request for
Hearing by Alien. For proceedings initiated after April 1, 1997, these
documents include a Notice to Appear, a Notice of Referral to
Immigration Judge, and a Notice of Intention to Rescind and Request for
Hearing by Alien.
Filing means the actual receipt of a document by the appropriate
Immigration Court.
Service means physically presenting or mailing a document to the
appropriate party or parties; except that an Order to Show Cause or
Notice of Deportation Hearing shall be served in person to the alien,
or by certified mail to the alien or the alien's attorney and a Notice
to Appear or Notice of Removal Hearing shall be served to the alien in
person, or if personal service is not practicable, shall be served by
regular mail to the alien or the alien's attorney of record.
13. Section Sec. 3.14 is amended by:
a. Revising paragraph (a), and by
b. Adding a new paragraph (c) to read as follows:
Sec. 3.14 Jurisdiction and commencement of proceedings.
(a) Jurisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration Court
by the Service. The charging document must include a certificate
showing service on the
[[Page 457]]
opposing party pursuant to Sec. 3.32 which indicates the Immigration
Court in which the charging document is filed. However, no charging
document is required to be filed with the Immigration Court to commence
bond proceedings pursuant to Secs. 3.19, 236.1(d) and 240.2(b) of this
chapter or credible fear determinations pursuant to Sec. 208.30 of this
chapter.
* * * * *
(c) Immigration Judges have jurisdiction to administer the oath of
allegiance in administrative naturalization ceremonies conducted by the
Service in accordance with Sec. 337.2(b) of this chapter.
14. Section 3.15 is amended by:
a. Revising the section heading;
b. Amending paragraph (b) introductory text and paragraph (b)(6),
by adding the phrase ``and Notice to Appear'' immediately after the
phrase ``Order to Show Cause'';
c. Redesignating paragraph (c) as (d);
d. Adding a new paragraph (c); and by
e. Revising newly redesignated paragraph (d), to read as follows:
Sec. 3.15 Contents of the order to show cause and notice to appear and
notification of change of address.
* * * * *
(c) Contents of the Notice to Appear for Removal Proceedings. In
the Notice to Appear for removal proceedings, the Service shall provide
the following administrative information to the Immigration Court.
Failure to provide any of these items shall not be construed as
affording the alien any substantive or procedural rights.
(1) The alien's names and any known aliases;
(2) The alien's address;
(3) The alien's registration number, with any lead alien
registration number with which the alien is associated;
(4) The alien's alleged nationality and citizenship; and
(5) The language that the alien understands.
(d) Address and telephone number. (1) If the alien's address is not
provided on the Order to Show Cause or Notice to Appear, of if the
address on the Order to Show Cause or Notice to Appear is incorrect,
the alien must provide to the Immigration Court where the charging
document has been filed, within five days of service of that document,
a written notice of an address and telephone number at which the alien
can be contacted. The alien may satisfy this requirement by completing
and filing Form EOIR-33.
(2) Within five days of any change of address, the alien must
provide written notice of the change of address on Form EOIR-33 to the
Immigration Court where the charging document has been filed, or if
venue has been changed, to the Immigration Court to which venue has
been changed.
Sec. 3.16 [Amended]
15. Section 3.16(b) is amended by revising the term ``respondent/
applicant'' to read ``alien''.
Sec. 3.17 [Amended]
16. Section 3.17(a) is amended in the first sentence by revising
the term ``respondent/applicant'' to read ``alien'', and by revising
the phrase ``the appropriate EOIR form'' to read ``Form EOIR-28''.
17. Section 3.18 is revised to read as follows:
Sec. 3.18 Scheduling of cases.
(a) The Immigration Court shall be responsible for scheduling cases
and providing notice to the government and the alien of the time,
place, and date of hearings.
(b) In removal proceedings pursuant to section 240 of the Act, the
Service shall provide in the Notice to Appear, the time, place and date
of the initial removal hearing, where practicable. If that information
is not contained in the Notice to Appear, the Immigration Court shall
be responsible for scheduling the initial removal hearing and providing
notice to the government and the alien of the time, place, and date of
hearing. In the case of any change or postponement in the time and
place of such proceeding, the Immigration Court shall provide written
notice to the alien specifying the new time and place of the proceeding
and the consequences under section 240(b)(5) of the Act of failing,
except under exceptional circumstances as defined in section 240(e)(1)
of the Act, to attend such proceeding. No such notice shall be required
for an alien not in detention if the alien has failed to provide the
address required in section 239(a)(1)(F) of the Act.
Sec. 3.19 [Amended]
18. Section 3.19(a) is amended by revising the reference to ``part
242 of this chapter'' to read ``8 CFR part 236'' wherever it appears in
the paragraph.
19. Section 3.19(d) is amended in the first sentence by adding the
term ``or removal'' immediately after the word ``deportation''.
20. Section 3.19 is amended by removing paragraph (h).
21. In Sec. 3.20, paragraph (a) is revised to read as follows:
Sec. 3.20 Change of venue.
(a) Venue shall lie at the Immigration Court where jurisdiction
vests pursuant to Sec. 3.14.
* * * * *
22. Section 3.23 is amended by revising the section heading and
paragraph (b) to read as follows:
Sec. 3.23 Reopening or Reconsideration before the Immigration Court.
* * * * *
(b) Before the Immigration Court. (1) In general. An Immigration
Judge may upon his or her own motion at any time, or upon motion of the
Service or the alien, reopen or reconsider any case in which he or she
has made a decision, unless jurisdiction is vested with the Board of
Immigration Appeals. Subject to the exceptions in this paragraph and
paragraph (b)(4) of this section, a party may file only one motion to
reconsider and one motion to reopen proceedings. A motion to reconsider
must be filed within 30 days of the date of entry of a final
administrative order of removal, deportation, or exclusion. A motion to
reopen must be filed within 90 days of the date of entry of a final
administrative order of removal, deportation, or exclusion. A motion to
reopen or to reconsider shall not be made by or on behalf of a person
who is the subject of removal, deportation, or exclusion proceedings
subsequent to his or her departure from the United States. The time and
numerical limitations set forth in this paragraph do not apply to
motions by the Service in removal proceedings pursuant to section 240
of the Act, or to motions by the Service in exclusion or deportation
proceedings, when the basis of the motion is fraud in the original
proceeding or a crime that would support termination of asylum in
accordance with Sec. 208.22(f) of this chapter.
(i) Form and contents of the motion. The motion shall be in writing
and signed by the affected party or the attorney or representative of
record, if any. The motion and any submission made in conjunction with
it must be in English or accompanied by a certified English
translation. Motions to reopen or reconsider shall state whether the
validity of the exclusion, deportation, or removal order has been or is
the subject of any judicial proceeding and, if so, the nature and date
thereof, the court in which such proceeding took place or is pending,
and its result or status. In any case in which an exclusion,
deportation, or removal order is in effect, any motion to reopen or
reconsider such order shall include a statement by or on behalf of the
moving party declaring whether the subject of the order is also the
subject
[[Page 458]]
of any pending criminal proceeding under the Act, and, if so, the
current status of that proceeding.
(ii) Filing. Motions to reopen or reconsider a decision of an
Immigration Judge must be filed with the Immigration Court having
administrative control over the Record of Proceeding. A motion to
reopen or a motion to reconsider shall include a certificate showing
service on the opposing party of the motion and all attachments. If the
moving party, other than the Service, is represented, a Form EOIR-28,
Notice of Appearance as Attorney or Representative Before an
Immigration Judge must be filed with the motion. The motion must be
filed in duplicate with the Immigration Court, accompanied by a fee
receipt.
(iii) Assignment to an Immigration Judge. If the Immigration Judge
is unavailable or unable to adjudicate the motion to reopen or
reconsider, the Chief Immigration Judge or his or her delegate shall
reassign such motion to another Immigration Judge.
(iv) Replies to motions; decision. The Immigration Judge may set
and extend time limits for replies to motions to reopen or reconsider.
A motion shall be deemed unopposed unless timely response is made. The
decision to grant or deny a motion to reopen or a motion to reconsider
is within the discretion of the Immigration Judge.
(v) Stays. Except in cases involving in absentia orders, the filing
of a motion to reopen or a motion to reconsider shall not stay the
execution of any decision made in the case. Execution of such decision
shall proceed unless a stay of execution is specifically granted by the
Immigration Judge, the Board, or an authorized officer of the Service.
(2) Motion to reconsider. A motion to reconsider shall state the
reasons for the motion by specifying the errors of fact or law in the
Immigration Judge's prior decision and shall be supported by pertinent
authority. Such motion may not seek reconsideration of a decision
denying previous motion to reconsider.
(3) Motion to reopen. A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits and other evidentiary
material. Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents. A motion to reopen
will not be granted unless the Immigration Judge is satisfied that
evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing. A
motion to reopen for the purpose of providing the alien an opportunity
to apply for any form of discretionary relief will not be granted if it
appears that the alien's right to apply for such relief was fully
explained to him or her by the Immigration Judge and an opportunity to
apply therefore was afforded at the hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the
hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen
proceedings for consideration or further consideration of an
application for relief under section 240A(a) (cancellation of removal
for certain permanent residents) or 240A(b) (cancellation of removal
and adjustment of status for certain nonpermanent residents) may be
granted only if the alien demonstrates that he or she was statutorily
eligible for such relief prior to the service of a notice top appear,
or prior to the commission of an offense referred to in section
212(a)(2) of the Act that renders the alien inadmissible or removable
under sections 237(a)(2) of the Act or (a)(4), whichever is earliest.
The Immigration Judge has discretion to deny a motion to reopen even if
the moving party has established a prima facie case for relief.
(4) Exceptions to filing deadlines.
(i) Asylum. The time and numerical limitations set forth in
paragraph (b)(1) of this section shall not apply if the basis of the
motion is to apply for relief under section 208 or 241(b)(3) of the Act
and is based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such
evidence is material and was not available and would not have been
discovered or presented at the previous proceeding. The filing of a
motion to reopen under this section shall not automatically stay the
removal of the alien. However, the alien many request a stay and, if
granted by the Immigration Judge, the alien shall not be removed
pending disposition of the motion by the Immigration Judge. If the
original asylum application was denied based upon a finding that it was
frivolous, then the alien is ineligible to file either a motion to
reopen or reconsider, or for a stay of removal.
(ii) Order entered in absentia in removal proceedings. An order of
removal entered in absentia pursuant to section 240(b)(5) of the Act
may be rescinded only upon a motion to reopen filed within 180 days
after the date of the order of removal, if the alien demonstrates that
the failure to appear was because of ``exceptional circumstances'' as
defined in section 240(e)(1) of the Act. An order entered in absentia
pursuant to section 240(b)(5) may be rescinded upon a motion to reopen
filed at any time if the alien demonstrates that he or she did not
receive notice in accordance with sections 239(a) (1) or (2) of the
Act, or the alien demonstrates that he or she was in Federal or state
custody and the failure to appear was through no fault of the alien.
However, in accordance with section 240(b)(5)(B) of the Act, no written
notice of a change in time or place of proceeding small be required if
the alien has failed to provide the address required under section
239(a)(1)(F) of the Act. The filing of a motion to reopen under this
section shall stay the removal of the alien pending disposition of the
motion by the Immigration Judge. An alien may file only one motion
pursuant to this paragraph.
(iii) Order entered in absentia in deportation or exclusion
proceedings. (A) An order entered in absentia in deportation
proceedings may be rescinded only a motion to reopen filed:
(1) Within 180 days after the date of the order of deportation if
the alien demonstrates that the failure to appear was because of
``exceptional circumstances'' beyond the control of the alien (e.g.,
serious illness of the alien or serious illness or death of an
immediate relative of the alien, but not including less compelling
circumstances); or
(2) At any time if the alien demonstrates that he or she did not
receive notice or if the alien demonstrates that he or she was in
federal or state custody and the failure to appear was through no fault
of the alien.
(B) A motion to reopen exclusion hearings on the basis that the
Immigration Judge improperly entered an order of exclusion in absentia
must be supported by evidence that the alien had reasonable cause for
his failure to appear.
(C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A)
of this section shall stay the deportation of the alien pending
decision on the motion and the adjudication of any properly filed
administrative appeal.
(D) The time and numerical limitations set forth in paragraph
(b)(1) of this section shall not apply to a motion to reopen filed
pursuant to the provisions of paragraphs (b)(4)(iii)(A)(1) of this
section.
(iv) Jointly filed motions. The time and numerical limitations set
forth in subsection (b)(1) of this section shall not apply to a motion
to reopen agreed upon by all parties and jointly filed.
[[Page 459]]
23. Section 3.25 is revised to read as follows:
Sec. 3.25 Form of the proceeding.
(a) Waiver of presence of the parties. The Immigration Judge may,
for good cause, and consistent with section 240(b) of the Act, waive
the presence of the alien at a hearing when the alien is represented or
when the alien is a minor child at least one of whose parents or whose
legal guardian is present. When it is impracticable by reason of an
alien's mental incompetency for the alien to be present, the presence
of the alien may be waived provided that the alien is represented at
the hearing by an attorney or legal representative, a near relative,
legal guardian, or friend.
(b) Stipulated request for order, wavier of hearing. An Immigration
Judge may enter an order of deportation, exclusion or removal
stipulated to by the alien (or the alien's representative) and the
Service. The Immigration Judge may enter such an order without a
hearing and in the absence of the parties based on a review of the
charging document, the written stipulation, and supporting documents,
if any. If the alien is unrepresented, the Immigration Judge must
determine that the alien's waiver is voluntary, knowing, and
intelligent. The stipulated request and required waivers shall be
signed on behalf of the government and by the alien and his or her
attorney or representative, if any. The attorney or representative
shall file a Notice of Appearance in accordance with Sec. 3.16(b). A
stipulated order shall constitute a conclusive determination of the
alien's deportability or removability from the United States. The
stipulation shall include:
(1) An admission that all factual allegations contained in the
charging document are true and correct as written;
(2) A concession of deportability or inadmissibility as charged;
(3) A statement that the alien makes no application for relief
under the Act;
(4) A designation of a country for deportation or removal under
section 241(b)(2)(A)(i) of the Act;
(5) A concession to the introduction of the written stipulation of
the alien as an exhibit to the Record of Proceeding;
(6) A statement that the alien understands the consequences of the
stipulated request and that the alien enters the request voluntarily,
knowingly, and intelligently;
(7) A statement that the alien will accept a written order for his
or her deportation, exclusion or removal as a final disposition of the
proceedings; and
(8) A waiver of appeal of the written order of deportation or
removal.
(c) Telephonic or video hearings. An Immigration Judge may conduct
hearings through video conference to the same extent as he or she may
conduct hearings in person. An Immigration Judge may also conduct a
hearing through a telephone conference, but an evidentiary hearing on
the merits may only be conducted through a telephone conference with
the consent of the alien involved after the alien has been advised of
the right to proceed in person or, where available, through a video
conference, except that credible fear determinations may be reviewed by
the Immigration Judge through a telephone conference without the
consent of the alien.
24. Section 3.26 is amended by revising paragraph (c) and adding a
new paragraph (d) to read as follows:
Sec. 3.26 In absentia hearings.
* * * * *
(c) In any removal proceeding before an Immigration Judge in which
the alien fails to appear, the Immigration Judge shall order the alien
removed in absentia if:
(1) The Service establishes by clear, unequivocal, and convincing
evidence that the alien is removable; and
(2) The Service establishes by clear, unequivocal, and convincing
evidence that written notice of the time and place of proceedings and
written notice of the consequences of failure to appear were provided
to the alien.
(d) Written notice to the alien shall be considered sufficient for
purposes of this section if it was provided at the most recent address
provided by the alien. If the respondent fails to provide his or her
address as required under Sec. 3.15(d), no written notice shall be
required for an Immigration Judge to proceed with an in absentia
hearing. This paragraph shall not apply in the event that the
Immigration Judge waives the appearance of an alien under Sec. 3.25.
25. Section 3.27 is amended by revising paragraph (c) to read as
follows:
Sec. 3.27 Public access to hearings.
* * * * *
(c) In any proceeding before an Immigration Judge concerning an
abused alien spouse, the hearing and the Record of Proceeding shall be
closed to the public unless the abused spouse agrees that the hearing
and the Record of Proceeding shall be open to the public. In any
proceeding before an Immigration Judge concerning an abused alien
child, the hearing and the Record of Proceeding shall be closed to the
public.
26. Section 3.30 is revised to read as follows:
Sec. 3.30 Additional charges in deportation or removal hearings.
At any time during deportation or removal proceedings, additional
or substituted charges of deportability and/or factual allegations may
be lodged by the Service in writing. The alien shall be served with a
copy of these additional charges and/or allegations and the Immigration
Judge shall read them to the alien. The Immigration Judge shall advise
the alien, if he or she is not represented by counsel, that the alien
may be so represented. The alien may be given a reasonable continuance
to respond to the additional factual allegations and charges.
Thereafter, the provision of Sec. 240.10(b) of this chapter relating to
pleading shall apply to the additional factual allegations and charges.
27. Section 3.35 is revised to read as follows:
Sec. 3.35 Depositions and Subpoenas.
(a) Depositions. If an Immigration Judge is satisfied that a
witness is not reasonably available at the place of hearing and that
said witness' testimony or other evidence is essential, the Immigration
Judge may order the taking of deposition either at his or her own
instance or upon application of a party. Such order shall designate the
official by whom the deposition shall be taken, may prescribe and limit
the content, scope, or manner of taking the deposition, and may direct
the production of documentary evidence.
(b) Subpoenas issued subsequent to commencement of proceedings. (1)
General. In any proceeding before an Immigration Judge, other than
under 8 CFR part 335, the Immigration Judge shall have exclusive
jurisdiction to issue subpoenas requiring the attendance of witnesses
or for the production of books, papers and other documentary evidence,
or both. An Immigration Judge may issue a subpoena upon his or her own
volition or upon application of the Service or the alien.
(2) Application for subpoena. A party applying for a subpoena shall
be required, as a condition precedent to its issuance, to state in
writing or at the proceeding, what he or she expects to prove by such
witnesses or documentary evidence, and to show affirmatively that he or
she has made diligent effort, without success, to produce the same.
(3) Issuance of subpoena. Upon being satisfied that a witness will
not appear and testify or produce documentary evidence and that the
witness' evidence
[[Page 460]]
is essential, the Immigration Judge shall issue a subpoena. The
subpoena shall state the title of the proceeding and shall command the
person to whom it is directed to attend and to give testimony at a time
and place specified. The subpoena may also command the person to whom
it is directed to produce the books, papers, or documents specified in
the subpoena.
(4) Appearance of witness. If the witness is at a distance of more
than 100 miles from the place of the proceeding, the subpoena shall
provide for the witness' appearance at the Immigration Court nearest to
the witness to respond to oral or written interrogatories, unless there
is no objection by any party to the witness' appearance at the
proceeding.
(5) Service. A subpoena issued under this section may be served by
any person over 18 years of age not a party to the case.
(6) Invoking aid of court. If a witness neglects or refuses to
appear and testify as directed by the subpoena served upon him or her
in accordance with the provisions of this section, the Immigration
Judge issuing the subpoena shall request the United States Attorney for
the district in which the subpoena was issued to report such neglect or
refusal to the United States District Court and to request such court
to issue an order requiring the witness to appear and testify and to
produce the books, papers or documents designated in the subpoena.
28. In Subpart C, a new Sec. 3.42 is added to read as follows:
Sec. 3.42 Review of credible fear determination.
(a) Referral. Jurisdiction for an Immigration Judge to review an
adverse credible fear finding by an asylum officer pursuant to section
235(b)(1)(B) of the Act shall commence with the filing by the Service
to Form I-863, Notice of Referral to Immigration Judge. The Service
shall also file with the notice of referral a copy of the written
record of determination as defined in section 235(b)(1)(B)(iii)(II) of
the Act, including a copy of the alien's written request for review, if
any.
(b) Record of proceeding. The Immigration Court shall create a
Record of Proceeding for a review of an adverse credible fear
determination. This record shall be merged with any later proceeding
pursuant to section 240 of the Act involving the same alien.
(c) Procedures and evidence. The Immigration Judge may receive into
evidence any oral or written statement which is material and relevant
to any issue in the review. The testimony of the alien shall be under
oath or affirmation administered by the Immigration Judge. If an
interpreter is necessary, one will be provided by the Immigration
Court. The Immigration Judge shall determine whether the review shall
be in person, or through telephonic or video connection (where
available). The alien may consult with a person or persons of the
alien's choosing prior to the review.
(d) Standard of review. The Immigration Judge shall make a de novo
determination as to whether there is a significant possibility, taking
into account the credibility of the statements made by the alien in
support of the alien's claim and such other facts as are known to the
Immigration Judge, that the alien could establish eligibility for
asylum under section 208 of the Act.
(e) Timing. The Immigration Judge shall conclude the review to the
maximum extent practicable within 24 hours, but in no case later than 7
days after the determination of the asylum officer.
(f) Decision. If an Immigration Judge determines that an alien has
a credible fear of persecution, the Immigration Judge shall vacate the
order entered pursuant to section 235(b)(1)(B)(iii)(I) of the Act.
Subsequent to the order being vacated, the Service shall issue and file
Form I-862, Notice to Appear, with the Immigration Court to commence
removal proceedings. The alien shall have the opportunity to apply for
asylum in the course of removal proceedings pursuant to section 240 of
the Act. If an Immigration Judge determines that an alien does not have
a credible fear of persecution, the Immigration Judge shall affirm the
asylum officer's determination and remand the case to the Service for
execution of the removal order entered pursuant to section
235(b)(1)(B)(iii)(I) of the Act. No appeal shall lie from a review of
an adverse credible fear determination made by an Immigration Judge.
(g) Custody. An Immigration Judge shall have no authority to review
an alien's custody status in the course of a review of an adverse
credible fear determination made by the Service.
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
29. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR. 14874,
15557; 3 CFR, 1982 Comp. p. 166; 8 CFR part 2.
30. In Sec. 1301, paragraph (g)(3)(ii) is revised to read as
follows:
Sec. 103.1 Delegations of authority.
* * * * *
(g) * * *
(3) * * *
(ii) Asylum Officers. Asylum officers constitute a professional
corps of officers who serve under the supervision and direction of the
Director of International Affairs and shall be specially trained as
required in Sec. 208.1(b) of this chapter. Asylum officers are
delegated the authority to hear and adjudicate credible fear of
persecution determinations under section 235(b)(1)(B) of the Act and
applications for asylum and for withholding of removal, as provided
under 8 CFR part 208.
* * * * *
Sec. 103.5 [Amended]
31. Section 103.5 is amended by:
a. Removing paragraphs (a)(1)(iii)(B);
b. Redesignating paragraphs (a)(1)(iii) (C) through (F) as
paragraphs (a)(1)(iii) (B) through (E), respectively; and
c. Removing paragraph (a)(5)(iii).
32. In Sec. 103.5a, paragraph (c)(1) is revised to read as follows:
Sec. 103.5a Service of notification, decisions, and other papers by
the Service.
* * * * *
(c) * * *
(1) Generally. In any proceeding which is initiated by the Service,
with proposed adverse effect, service of the initiating notice and of
notice of any decision by a Service officer shall be accomplished by
personal service, except as provided in section 239 of the Act.
* * * * *
33. In Sec. 103.6, paragraph (a) is revised to read as follows:
Sec. 103.6 Surety bonds.
(a) Posting of surety bonds.--(1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, Immigration Bond, a copy of
which, and any rider attached thereto, shall be furnished the obligor.
A district director is authorized to approve a bond, a formal agreement
to extension of liability of surety, a request for delivery of
collateral security to a duly appointed and undischarged administrator
or executor of the estate of a deceased depositor, and a power of
attorney executed on Form I-312, Designation of Attorney in Fact. All
other matters relating to bonds, including a power of attorney not
[[Page 461]]
executed on Form I-312 and a request for delivery of collateral
security to other than the depositor or his or her approved attorney in
fact, shall be forwarded to the regional director for approval.
(2) Bond riders.--(i) General. Bond riders shall be prepared on
Form I-351, Bond Riders, and attached to Form I-352. If a condition to
be included in a bond is not on Form I-351, a rider containing the
condition shall be executed.
* * * * *
Sec. 103.7 [Amended]
34. Section 103.7(b)(1) is amended by removing the entry to ``Form
I-444''.
PART 204--IMMIGRANT PETITIONS
35. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
36. Section 204.2 is amended by:
a. Revising paragraph (a)(1)(iii) introductory text;
b. Removing paragraphs (a)(1)(iii) (A) through (C); and
c. Redesignating paragraphs (a)(1)(iii) (D) through (I) as
paragraphs (a)(1)(iii) (A) through (F) respectively, to read as
follows:
Sec. 204.2 Petitions for relatives, widows, and widowers, and abused
spouses and children.
* * * * *
(a) * * *
(1) * * *
(iii) Marriage during proceedings--general prohibition against
approval of visa petition. A visa petition filed on behalf of an alien
by a United States citizen or a lawful permanent resident spouse shall
not be approved if the marriage creating the relationship occurred on
or after November 10, 1986, and while the alien was in exclusion,
deportation, or removal proceedings, or judicial proceedings relating
thereto. Determination of commencement and termination of proceedings
and exemptions shall be in accordance with Sec. 245.1(c)(8) of this
chapter.
* * * * *
PART 207--ADMISSION OF REFUGEES
37. The authority citation for part 207 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1157, 1159, 1182; 8 CFR
part 2.
38. Section 207.1 is amended by removing paragraph (e), and by
revising paragraph (a) to read as follows:
Sec. 207.1 Eligibility.
(a) Filing jurisdiction. Any alien who believes he or she is a
refugee as defined in section 101(a)(42) of the Act, and is included in
a refugee group identified in section 207(a) of the Act, may apply for
admission to the United States by filing an application in accordance
with Sec. 207.2 with the Service office having jurisdiction over the
area where the applicant is located. In those areas too distant from a
Service office, the application may be filed at a designated United
States consular office.
* * * * *
39. Section 207.3 is revised to read as follows:
Sec. 207.3 Waivers of inadmissibility.
(a) Authority. Section 207(c)(3) of the Act sets forth grounds of
inadmissibility under section 212(a) of the Act which are not
applicable and those which may be waived in the case of an otherwise
qualified refugee and the conditions under which such waivers may be
approved. Officers in charge of overseas offices are delegated
authority to initiate the necessary investigations to establish the
facts in each waiver application pending before them and to approve or
deny such waivers.
(b) Filing requirements. The applicant for a waiver must submit
Form I-602, Application by Refugee for Waiver of Grounds of
Inadmissibility, with the Service office processing his or her case.
The burden is on the applicant to show that the waiver should be
granted based upon humanitarian grounds, family unity, or the public
interest. The applicant shall be notified in writing of the decision,
including the reasons for denial, if the application is denied. There
is no appeal from such decision.
Sec. 207.8 [Amended]
40. Section 207.8 is amended in the last sentence by revising the
reference to ``sections 235, 236, and 237'' to read ``sections 235,
240, and 241''.
41. Part 208 is revised to read as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
Subpart A--Asylum and Withholding of Removal
Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Procedure for interview before an asylum officer.
208.10 Failure to appear at an interview before an asylum officer.
208.11 Comments from the Department of State.
208.12 Reliance on information compiled by other sources.
208.13 Establishing asylum eligibility.
208.14 Approval, denial, or referral of application.
208.15 Definition of ``firm resettlement.''
208.16 Withholding of removal.
208.17 Decisions.
208.18 Determining if an asylum application is frivolous.
208.19 [Reserved]
208.20 Effect on exclusion, deportation, and removal proceedings.
208.21 Restoration of status.
208.22 Termination of asylum or withholding or removal or
deportation.
208.23-29 [Reserved]
Subpart B--Credible Fear of Persecution
208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
Subpart A--Asylum and Withholding of Removal
Sec. 208.1 General.
(a) Applicability. Unless otherwise provided herein, this subpart
shall apply to all applications for asylum under section 208 of the Act
or for withholding of deportation or withholding of removal under
section 241(b)(3) of the Act, whether before an asylum officer or an
immigration judge, regardless of the date of filing. For purposes of
this chapter, withholding of removal shall also mean withholding of
deportation under section 243(h) of the Act, as it appeared prior to
April 1, 1997, except as provided in Sec. 208.16(c) of this chapter.
Such applications are hereinafter referred to generically as asylum
applications. The provisions of this part shall not affect the finality
or validity of any decision made by a district director, an immigration
judge, or the Board of Immigration Appeals in any such case prior to
April 1, 1997. No asylum application that was filed with a district
director, asylum officer or immigration judge prior to April 1, 1997,
may be reopened or otherwise reconsidered under the provisions of this
part except by motion granted in the exercise of discretion by the
Board of Immigration Appeals, an immigration judge, or an asylum
officer for proper cause shown. Motions to reopen or reconsider must
meet the requirements of sections 240(c)(5) and (c)(6) of the Act, and
8 CFR parts 3 and 103, where
[[Page 462]]
applicable. The provisions of this part relating to a person convicted
of an aggravated felony, as defined in section 101(a)(43) of the Act,
shall apply to asylum applications that are filed on or after November
29, 1990.
(b) Training of asylum officers. The Director of International
Affairs shall ensure that asylum officers receive special training in
international human rights law, nonadversarial interview techniques,
and other relevant national and international refugee laws and
principles. The Director of International Affairs shall also, in
cooperation with the Department of State and other appropriate sources,
compile and disseminate to asylum officers information concerning the
persecution of persons in other countries on account of race, religion,
nationality, membership in a particular social group, or political
opinion, as well as other information relevant to asylum
determinations, and shall maintain a documentation center with
information on human rights conditions.
Sec. 208.2 Jurisdiction.
(a) Office of International Affairs. Except as provided in
paragraph (b) of this section, the Office of International Affairs
shall have initial jurisdiction over an asylum application filed by, or
a credible fear determination pertaining to, an alien physically
present in the United States or seeking admission at a port-of-entry.
An application that is complete within the meaning of Sec. 208.3(c)(3)
shall be either adjudicated or referred by asylum officers under this
part in accordance with Sec. 208.14. An application that is incomplete
within the meaning of Sec. 208.3(c)(3) shall be returned to the
applicant. Except as provided in Sec. 208.16(a), an asylum officer
shall not decide whether an alien is entitled to withholding of removal
under section 241(b)(3) of the Act.
(b) Immigration Court. (1) Certain aliens not entitled to
proceedings under section 240 of the Act. After Form I-863, Notice of
Referral to Immigration Judge, has been filed with the Immigration
Court, an immigration judge shall have exclusive jurisdiction over any
asylum application filed on or after April 1, 1997, by:
(i) An alien crewman who:
(A) Is an applicant for a landing permit;
(B) Has been refused permission to land under section 252 of the
Act; or
(C) Has been granted permission to land under section 252 of the
Act, regardless of whether the alien has remained in the United States
longer than authorized;
(ii) An alien stowaway who has been found to have a credible fear
of persecution pursuant to the procedure set forth in Subpart B of this
part;
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver Pilot Program under section 217 of the Act;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Pilot Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status;
(v) An alien who has been ordered removed under section 235(c) of
the Act; or
(vi) An alien who is an applicant for admission, or has been
admitted, as an alien classified under section 101(a)(15)(S) of the
Act.
(2) Rules of procedure. Proceeding falling under the jurisdiction
of the immigration judge pursuant to paragraph (b)(1) of this section
shall be conducted in accordance with the same rules of procedure as
proceedings conducted under 8 CFR part 240, except the scope of review
shall be limited to a determination of whether the alien is eligible
for asylum or withholding of removal and whether asylum shall be
granted in the exercise of discretion. During such proceeding all
parties are prohibited from raising or considering any other issues,
including but not limited to issues of admissibility, removability,
eligibility for waivers, and eligibility for any form of relief other
than asylum or withholding of removal.
(3) other aliens. Immigration judges shall have exclusive
jurisdiction over asylum applications filed by an alien who has been
served Form I-221, Order to Show Cause; Form I-122, Notice to Applicant
for Admission Detained for a Hearing before an Immigration Judge; or
Form I-862, Notice to Appear, after a copy of the charging document has
been filed with the Immigration Court. Immigration judges shall also
have jurisdiction over any asylum applications filed prior to April 1,
1997, by alien crew members who have remained in the United States
longer than authorized, by applicants for admission under the Visa
Waiver Pilot Program, and by aliens who have been admitted to the
United States under the Visa Waiver Pilot Program.
Sec. 208.3 Form of application.
(a) An asylum applicant must file, in triplicate, Form I-589
together with any additional supporting material. The applicant's
spouse and children shall be listed on the application and may be
included in the request for asylum if they are in the United States.
One additional copy of the principal applicant's Form I-589 must be
submitted for each dependent included in the principal's application.
An application shall be accompanied by one completed fingerprint card,
Form FD-258, for every individual included in the application who is 14
years of age or older. The application also shall be accompanied by two
photographs of the applicant and of each dependent included in the
application.
(b) An asylum application shall be deemed to constitute at the same
time an application for withholding of removal, unless adjudicated in
deportation or exclusion proceedings commenced prior to April 1, 1997.
In such instances, the asylum application shall be deemed to constitute
an application for withholding of deportation under section 243(h) of
the Act, as that section existed prior to its amendment by Pub. L. 104-
208.
(c) Form I-589 shall be filed under the following conditions and
shall have the following consequences:
(1) Information provided on the application may be used as a basis
for the institution of or as evidence in removal proceedings, and in
deportation and exclusion proceedings where the application has been
filed on or after January 4, 1995, as well as to satisfy the Service's
burden of proof in such proceedings;
(2) The applicant and anyone other than a spouse, parent, son, or
daughter of the applicant who assists the applicant in preparing the
application must sign the application under penalty of perjury. The
applicant's signature is evidence that the applicant is a aware of the
contents of the application. A person other than a relative specified
in this paragraph who assists the applicant in preparing the
application also must provide his or her full mailing address;
(3) An asylum application that does not include a response to each
of the questions contained in the Form I-589, is unsigned, or is
unaccompanied by the required materials specified in paragraph (a) of
this section is incomplete. The filling of an incomplete application
shall not commence the 150-day period after which the applicant may
file an application for employment authorization in accordance with
Sec. 208.7. An application that is incomplete shall be retuned by mail
to the applicant within 30 days of the receipt of the application by
the Service. If the Service has not mailed the incomplete application
back to the applicant within 30 days, it shall be deemed complete;
(4) Knowing placement of false information on the application may
[[Page 463]]
subject the person placing that information on the application to
criminal penalties under title 18 of the United States Code and to
civil penalties under section 274C of the Act; and
(5) Knowing filing of a frivolous application on or after April 1,
1997, so long as the applicant has received the notice required by
section 208(d)(4) of the Act, shall render the applicant permanently
ineligible for any benefits under the Act pursuant to Sec. 208.18.
Sec. 208.4 Filing the application.
Except as prohibited in paragraph (a) of this section, asylum
applications shall be filed in accordance with paragraph (b) of this
section.
(a) Prohibitions on filing. Section 208(a)(2) of the Act prohibits
certain aliens from filing for asylum on or after April 1, 1997, unless
the alien can demonstrate that the exceptions in section 208(a)(2)(D)
of the Act apply. For the purpose of making determinations under
section 208(a)(2) of the Act, the following rules shall apply:
(1) For the purpose of section 208(a)(2)(C) of the Act, an asylum
application has not been denied unless denied by an immigration judge
or the Board of Immigration Appeals;
(2) The term ``changed circumstances'' in section 208(a)(2)(D) of
the Act shall refer to circumstances materially affecting the
applicant's eligibility for asylum that have arisen:
(i) For the purpose of section 208(a)(2)(C) of the Act, since the
denial of the last asylum application by the alien. Changed
circumstances arising after the denial of the application but before
the alien's departure or removal from the United States shall only be
considered as part of a motion to reopen under section 240(c)(6) of the
Act and Secs. 3.2, 3.23 and 103.5 of this chapter; or
(ii) For the purpose of section 208(a)(2)(B) of the Act, since the
1-year period has expired; and
(3) The term ``extraordinary circumstances'' in section
208(a)(2)(D) of the Act shall refer to events or factors beyond the
alien's control that caused the failure to meet the 1-year deadline.
Such circumstances shall excuse the failure to file within the 1-year
period so long as the alien filed the application as soon after the
deadline as practicable given those circumstances.
(b) Filing location. (1) With the service center by mail. Except as
provided in paragraphs (b)(2), (b)(3), (b)(4) and (b)(5) of this
section, asylum applications shall be filed directly by mail with the
service center servicing the asylum office with jurisdiction over the
place of the applicant's residence or, in the case of an alien without
a United States residence, the applicant's current lodging or the land
border port-of-entry through which the alien seeks admission to the
United States.
(2) With the asylum office. Asylum applications shall be filed
directly with the asylum office having jurisdiction over the matter in
the case of an alien who has received the express consent of the
Director of Asylum to do so.
(3) With the immigration judge. Aslyum applications shall be filed
directly with the Immigration Court having jurisdiction over the case
in the following circumstances:
(i) During exclusion, deportation, or removal proceedings, with the
Immigration Court having jurisdiction over the port, district office,
or sector after service and filing of the appropriate charging
document.
(ii) After completion of exclusion, deportation, or removal
proceedings, and in conjunction with a motion to reopen pursuant to 8
CFR part 3 where applicable, with the Immigration Court having
jurisdiction over the prior proceeding. Any such motion must reasonably
explain the failure to request asylum prior to the completion of the
proceedings
(iii) In asylum proceedings pursuant to Sec. 208.2(b)(1) and after
the Notice of Referral to Immigration Judge has been served on the
alien and filed with the Immigration Court having jurisdiction over the
case.
(4) With the Board of Immigration Appeals. In conjunction with a
motion to remand or reopen pursuant to Secs. 3.2 and 3.8 of this
chapter where applicable, an initial asylum application shall be filed
with the Board of Immigration Appeals if jurisdiction over the
proceedings is vested in the Board of Immigration Appeals under 8 CFR
part 3. Any such motion must reasonably explain the failure to request
asylum prior to the completion of the proceedings.
(5) With the district director. In the case of any alien described
in Sec. 208.2(b)(1) and prior to the service on the alien of Form I-
863, any asylum application shall be submitted to the district director
having jurisdiction pursuant to 8 CFR part 103. The district director
shall forward such asylum application to the appropriate Immigration
Court with the Form I-863 being filed with that Immigration Court.
(c) Amending an application after filing. Upon request of the alien
and as a matter of discretion, the asylum officer or immigration judge
having jurisdiction may permit an asylum applicant to amend or
supplement the application, but any delay caused by such request shall
extend the period within which the application may not apply for
employment authorization in accordance with Sec. 208.7(a).
Sec. 208.5 Special duties toward aliens in custody of the Service.
(a) General. When an alien in the custody of the Service requests
asylum or withholding of removal or expresses a fear of persecution or
harm upon return to his or her country of origin or to agents thereof,
the Service shall make available the appropriate application forms and
shall provide the applicant with the information required by section
208(d)(4) of the Act, except in the case of an alien who is in custody
pending a credible fear of persecution determination under section
235(b)(1)(B) of the Act. Where possible, expedited consideration shall
be given to applications of detained aliens. Except as provided in
paragraph (c) of this section, such alien shall not be excluded,
deported, or removed before a decision is rendered on his or her asylum
application.
(b) Certain aliens aboard vessels. (1) If an alien crewman or alien
stowaway on board a vessel or other conveyance alleges, claims, or
otherwise makes known to an immigration inspector or other official
making an examination on the conveyance that he or she is unable or
unwilling to return to his or her country of nationality or last
habitual residence (if not a national of any country) because of
persecution or a fear of persecution in that country on account of
race, religion, nationality, membership in a particular social group,
or political opinion, the alien shall be promptly removed from the
conveyance. If the alien makes such fear known to an official while off
such conveyance, the alien shall not be returned to the conveyance but
shall be retained in or transferred to the custody of the Service.
(i) An alien stowaway will be referred to an asylum officer for a
credible fear determination under Sec. 208.30.
(ii) An alien crewman shall be provided the appropriate
applications forms and information required by section 208(d)(4) of the
Act and may then have 10 days within which to submit an asylum
application to the district director having jurisdiction over the port
of entry. The district director, pursuant to Sec. 208.4(b), shall serve
Form I-863 on the alien and immediately forward any such application to
the appropriate Immigration Court with a copy of the Form I-863 being
filed with that court.
(2) Pending adjudication of the application, and, in the case of a
[[Page 464]]
stowaway the credible fear determination and any review thereof, the
alien may be detained by the Service or otherwise paroled in accordance
with Sec. 212.5 of this chapter. However, pending the credible fear
determination, parole of an alien stowaway may be permitted only when
the Attorney General determines, in the exercise of discretion, that
parole is required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.
(c) Exception to prohibition on removal. A motion to reopen or an
order to remand accompanied by an asylum application pursuant to
Sec. 208.4(b)(3)(iii) shall not stay execution of a final exclusion,
deportation, or removal order unless such stay is specifically granted
by the Board of Immigration Appeals or the immigration judge having
jurisdiction over the motion.
Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any asylum
application shall not be disclosed without the written consent of the
applicant, except as permitted by this section or at the discretion of
the Attorney General.
(b) The confidentiality of other records kept by the Service that
indicate that a specific alien has applied for asylum shall also be
protected from disclosure. The Service will coordinate with the
Department of State to ensure that the confidentially of these records
is maintained if they are transmitted to Department of State offices in
other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a
need to examine information in connection with:
(i) The adjudication of asylum applications;
(ii) The defense of any legal action arising from the adjudication
of or failure to adjudicate the asylum application;
(iii) The defense of any legal action of which the asylum
application is a part; or
(iv) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, state, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of or failure to adjudicate the
asylum application; or
(ii) Arising from the proceedings of which the asylum application
is a part.
Sec. 208.7 Employment authorization.
(a) Application and approval. (1) Subject to the restrictions
contained in sections 236(a) and 208(d) of the Act, an applicant for
asylum who is not an aggravated felon shall be eligible pursuant to
Secs. 274a.12(c)(8) and 274a.13(a) of this chapter to submit a Form I-
765, Application for Employment Authorization. The application shall be
submitted no earlier than 150 days after the date on which a complete
asylum application submitted in accordance with Secs. 208.3 and 208.4
has been received. If an asylum application has been returned as
incomplete in accordance with Sec. 208.3(c)(3), the 150-day period will
commence upon receipt by the Service of a complete asylum application.
An applicant whose asylum application has been denied by an asylum
officer or by an immigration judge within the 150-day period shall not
be eligible to apply for employment authorization. If an asylum
application is denied prior to a decision on the application for
employment authorization, the application for employment authorization
shall be denied. If the asylum application is not so denied, the
Service shall have 30 days from the date of filing of the Form I-765 to
grant or deny that application, except that no employment authorization
shall be issued to an asylum applicant prior to the expiration of the
180-day period following the filing of the asylum application filed on
or after April 1, 1997.
(2) Employment authorization pursuant to Sec. 274a.12(c)(8) of this
chapter may not be granted to an alien who fails to appear for a
scheduled interview before an asylum officer or a hearing before an
immigration judge, unless the applicant demonstrates that the failure
to appear was the result of exceptional circumstances.
(3) The time periods within which the alien may not apply for
employment authorization and within which the Service must respond to
any such application and within which the asylum application must be
adjudicated pursuant to section 208(d)(5)(A)(iii) of the Act shall
begin when the alien has filed a complete asylum application in
accordance with Secs. 208.3 and 208.4. Any delay requested or caused by
the applicant shall not be counted as part of these time periods. Such
time periods also shall be extended by the equivalent of the time
between issuance of a request for evidence under Sec. 103.2(b)(8) of
this chapter and the receipt of the applicant's response to such
request.
(4) The provisions of paragraphs (a) (1) through (3) of this
section apply to applications for asylum filed on or after January 4,
1995.
(b) Renewal and termination. Employment authorization shall be
renewable, in increments to be determined by the Commissioner, for the
continuous period of time necessary for the asylum officer or
immigration judge to decide the asylum application and, if necessary,
for completion of any administrative or judicial review.
(1) If the asylum application is denied by the asylum officer, the
employment authorization shall terminate at the expiration of the
employment authorization document or 60 days after the denial of
asylum, whichever is longer.
(2) If the application is denied by the immigration judge, the
Board of Immigration Appeals, or a Federal court, the employment
authorization terminates upon the expiration of the employment
authorization document, unless the applicant has filed an appropriate
request for administrative or judicial review.
(c) Supporting evidence for renewal of employment authorization. In
order for employment authorization to be renewed under this section,
the alien must provide the Service (in accordance with the instructions
on or attached to the employment authorization application) with a Form
I-765, the required fee (unless waived in accordance with Sec. 103.7(c)
of this chapter), and (if applicable) proof that he or she has
continued to pursue his or her asylum application before an immigration
judge or sought administrative or judicial review. For purposes of
employment authorization, pursuit of an asylum application is
established by presenting to the Service one of the following,
depending on the stage of the alien's immigration proceedings:
(1) If the alien's case is pending in proceedings before the
immigration judge, and the alien wishes to continue to pursue his or
her asylum application, a copy of any asylum denial, referral notice,
or charging document placing the alien in such proceedings;
(2) If the immigration judge has denied asylum, a copy of the
document issued by the Board of Immigration Appeals to show that a
timely appeal has been filed from a denial of the asylum application by
the immigration judge; or
(3) If the Board of Immigration Appeals has dismissed the alien's
appeal of a denial of asylum, or sustained an appeal by the Service of
a grant of asylum, a copy of the petition for judicial review or for
habeas corpus
[[Page 465]]
pursuant to section 242 of the Act, date stamped by the appropriate
court.
(d) In order for employment authorization to be renewed before its
expiration, the application for renewal must be received by the Service
90 days prior to expiration of the employment authorization.
Sec. 208.8 Limitations on travel outside the United States.
(a) An applicant who leaves the United States without first
obtaining advance parole under Sec. 212.5(e) of this chapter shall be
presumed to have abandoned his or her application under this section.
(b) An applicant who leaves the United States pursuant to advance
parole under Sec. 212.5(e) of this chapter and returns to the country
of claimed persecution shall be presumed to have abandoned his or her
application, unless the applicant is able to establish compelling
reasons for such return.
Sec. 208.9 Procedure for interview before an asylum officer.
(a) The Service shall adjudicate the claim of each asylum applicant
whose application is complete within the meaning of Sec. 208.3(c)(3)
and is within the jurisdiction of the Service.
(b) The asylum officer shall conduct the interview in a
nonadversarial manner and, except at the request of the applicant,
separate and apart from the general public. The purpose of the
interview shall be to elicit all relevant and useful information
bearing on the applicant's eligibility for asylum. At the time of the
interview, the applicant must provide complete information regarding
his or her identity, including name, date and place of birth, and
nationality, and may be required to register this identity
electronically or through any other means designated by the Attorney
General. The applicant may have counsel or a representative present,
may present witnesses, and may submit affidavits of witnesses and other
evidence.
(c) The asylum officer shall have authority to administer oaths,
verify the identity of the applicant (including through the use of
electronic means), verify the identity of any interpreter, present and
receive evidence, and question the applicant and any witnesses.
(d) Upon completion of the interview, the applicant or the
applicant's representative shall have an opportunity to make a
statement or comment on the evidence presented. The asylum officer may,
in his or her discretion, limit the length of such statement or comment
and may require their submission in writing. Upon completion of the
interview, the applicant shall be informed that he or she must appear
in person to receive and to acknowledge receipt of the decision of the
asylum officer and any other accompanying material at a time and place
designated by the asylum officer, except as otherwise provided by the
asylum officer. An applicant's failure to appear to receive and
acknowledge receipt of the decision shall be treated as delay caused by
the applicant for purposes of Sec. 208.7(a)(3) and shall extend the
period within which the applicant may not apply for employment
authorization by the number of days until the applicant does appear to
receive and acknowledge receipt of the decision or until the applicant
appears before an immigration judge in response to the issuance of a
charging document under Sec. 208.14(b).
(e) The asylum officer shall consider evidence submitted by the
applicant together with his or her asylum application, as well as any
evidence submitted by the applicant before or at the interview. As a
matter of discretion, the asylum officer may grant the applicant a
brief extension of time following an interview during which the
applicant may submit additional evidence. Any such extension shall
extend by an equivalent time the periods specified by Sec. 208.7 for
the filing and adjudication of any employment authorization
application.
(f) The asylum application, all supporting information provided by
the applicant, any comments submitted by the Department of State or by
the Service, and any other information specific to the applicant's case
and considered by the asylum officer shall comprise the record.
(g) An applicant unable to proceed with the interview in English
must provide, at no expense to the Service, a competent interpreter
fluent in both English and the applicant's native language. The
interpreter must be at least 18 years of age. Neither the applicant's
attorney or representative of record, a witness testifying on the
applicant's behalf, nor a representative or employee of the applicant's
country of nationality, or if stateless, country of last habitual
residence, may serve as the applicant's interpreter. Failure without
good cause to comply with this paragraph may be considered a failure
without good cause to appear for the interview for purposes of
Sec. 208.10.
Sec. 208.10 Failure to appear at an interview before an asylum
officer.
Failure to appear for a scheduled interview without prior
authorization may result in dismissal of the application, waiver of the
right to an interview, or denial of any application for an employment
authorization document. Failure to appear shall be excused if the
notice of the interview was not mailed to the applicant's current
address and such address had been provided to the Office of
International Affairs by the applicant prior to the date of mailing in
accordance with section 265 of the Act and regulations promulgated
thereunder, unless the asylum officer determines that the applicant
received reasonable notice of the interview. Failure to appear will be
excused if the applicant demonstrates that such failure was the result
of exceptional circumstances.
Sec. 208.11 Comments from the Department of State.
(a) The Service shall forward to the Department of State a copy of
each completed application it receives. At its option, the Department
of State may provide detailed country conditions information relevant
to eligibility for asylum or withholding of removal.
(b) At its option, the Department of State may also provide:
(1) An assessment of the accuracy of the applicant's assertions
about conditions in his or her country of nationality or habitual
residence and his or her particular situation;
(2) Information about whether persons who are similarly situated to
the applicant are persecuted in his or her country of nationality or
habitual residence and the frequency of such persecution; or
(3) Such other information as it deems relevant.
(c) Asylum officers and immigration judges may request specific
comments from the Department of State regarding individual cases or
types of claims under consideration, or such other information as they
deem appropriate.
(d) Any such comments received pursuant to paragraphs (b) and (c)
of this section shall be made part of the record. Unless the comments
are classified under the applicable Executive Order, the applicant
shall be provided an opportunity to review and respond to such comments
prior to the issuance of any decision to deny the application.
Sec. 208.12 Reliance on information compiled by other sources.
(a) In deciding an asylum application, or whether the alien has a
credible fear of persecution pursuant to section 235(b)(1)(B) of the
Act, the asylum officer may rely on material provided by the Department
of State, the Office of
[[Page 466]]
International Affairs, other Service offices, or other credible
sources, such as international organizations, private voluntary
agencies, news organizations, or academic institutions.
(b) Nothing in this part shall be construed to entitle the
applicant to conduct discovery directed toward the records, officers,
agents, or employees of the Service, the Department of Justice, or the
Department of State.
Sec. 208.13 Establishing asylum eligibility.
(a) Burden of proof. The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section
101(a)(42) of the Act. The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without corroboration. The
fact that the applicant previously established a credible fear of
persecution for purposes of section 235(b)(1)(B) of the Act does not
relieve the alien of the additional burden of establishing eligibility
for asylum.
(b) Persecution. The applicant may qualify as a refugee either
because he or she has suffered actual past persecution or because he or
she has a well-founded fear of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee
on the basis of past persecution if he or she can establish that he or
she has suffered persecution in the past in his or her country of
nationality or last habitual residence on account of race, religion,
nationality, membership in a particular social group, or political
opinion, and that he or she is unable or unwilling to return to or
avail himself or herself of the protection of that country owing to
such persecution.
(i) If it is determined that the applicant has established past
persecution, he or she shall be presumed also to have a well-founded
fear of persecution unless a preponderance of the evidence establishes
that since the time the persecution occurred conditions in the
applicant's country of nationality or last habitual residence have
changed to such an extent that the applicant no longer has a well-
founded fear of being persecuted if he or she were to return.
(ii) An application for asylum shall be denied if the applicant
establishes past persecution under this paragraph but it is also
determined that he or she does not have a well-founded fear of future
persecution under paragraph (b)(2) of this section, unless it is
determined that the applicant has demonstrated compelling reasons for
being unwilling to return to his or her country of nationality or last
habitual residence arising out of the severity of the past persecution.
If the applicant demonstrates such compelling reasons, he or she may be
granted asylum unless such a grant is barred by paragraph (c) of this
section.
(2) Well-founded fear of persecution. An applicant shall be found
to have a well-founded fear of persecution if he or she can establish
first, that he or she has a fear of persecution in his or her country
of nationality or last habitual residence on account of race, religion,
nationality, membership in a particular social group, or political
opinion; second, that there is a reasonable possibility of actually
suffering such persecution if he or she were to return to that country;
and third, that he or she is unable or unwilling to return to or avail
himself or herself of the protection of that country because of such
fear. In evaluating whether the applicant has sustained his or her
burden of proving that he or she has a well-founded fear of
persecution, the asylum officer or immigration judge shall not require
the applicant to provide evidence that he or she would be singled out
individually for persecution if:
(i) The applicant establishes that there is a pattern or practice
in his or her country of nationality or last habitual residence of
persecution of a group of persons similarly situated to the applicant
on account of race, religion, nationality, membership in a particular
social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that his or her fear of
persecution upon return is reasonable.
(c) Mandatory denials. (1) Applications filed on or after April 1,
1997. For applications filed on or after April 1, 1997, an applicant
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the
Act applies to the applicant. If the evidence indicates that the
applicant may be ineligible under section 208(a)(2) of the Act to apply
for asylum, or under section 208(b)(2) of the Act to be granted asylum,
the applicant shall have the burden of proving by a preponderance of
the evidence, or in the case of an alien described in section
208(a)(2)(B) of the Act by clear and convincing evidence, that he or
she is eligible.
(2) Applications filed before April 1, 1997. An immigration judge
or asylum officer shall not grant asylum to any applicant who filed his
or her application before April 1, 1997, if the alien:
(i) Having been convicted by a final judgment of a particularly
serious crime in the United States, constitutes a danger to the
community;
(ii) Has been firmly resettled within the meaning of Sec. 208.15;
(iii) Can reasonably be regarded as a danger to the security of the
United States;
(iv) Has been convicted of an aggravated felony, as defined in
section 101(a)(43) of the Act; or
(v) Ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion. If the
evidence indicates that one of the above grounds apply to the
applicant, he or she shall have the burden of proving by a
preponderance of the evidence that he or she did not so act.
(d) Discretionary denial. An asylum application may be denied in
the discretion of the Attorney General if the alien can be removed to a
third country which has offered resettlement and in which the alien
would not face harm or persecution.
Sec. 208.14 Approval, denial, or referral of application.
(a) By an immigration judge. Unless otherwise prohibited in
Sec. 208.13(c), an immigration judge may grant or deny asylum in the
exercise of discretion to an applicant who qualifies as a refugee under
section 101(a)(42) of the Act.
(b) By an asylum officer. Unless otherwise prohibited in
Sec. 208.13(c):
(1) An asylum officer may grant asylum in the exercise of
discretion to an applicant who qualifies as a refugee under section
101(a)(42) of the Act.
(2) If the alien appears to be deportable, excludable or removable
under section 240 of the Act, the asylum officer shall either grant
asylum or refer the application to an immigration judge for
adjudication in deportation, exclusion, or removal proceedings. An
asylum officer may refer such an application after an interview
conducted in accordance with Sec. 208.9 or if, in accordance with
Sec. 208.10, the applicant is deemed to have waived his or her right to
an interview.
(3) If the applicant is maintaining valid nonimmigrant status at
the time the application is decided, the asylum officer may grant or
deny asylum, except in the case of an applicant described in
Sec. 208.2(b)(1).
(c) Applicability of Sec. 103.2(b) of this chapter. No application
for asylum or withholding of deportation shall be subject to denial
pursuant to Sec. 103.2(b) of this chapter.
(d) Duration. If the alien's asylum application is granted, the
grant will be effective for an indefinite period, subject to
termination as provided in Sec. 208.22.
[[Page 467]]
Sec. 208.15 Definition of ``firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival
in the United States, he entered into another nation with, or while in
that nation received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement unless he
establishes:
(a) That his entry into that nation was a necessary consequence of
his flight from persecution, that he remained in that nation only as
long as was necessary to arrange onward travel, and that he did not
establish significant ties in that nation; or
(b) That the conditions of his residence in that nation were so
substantially and consciously restricted by the authority of the
country of refuge that he was not in fact resettled. In making his
determination, the Asylum Officer or Immigration Judge shall consider
the conditions under which other residents of the country live, the
type of housing made available to the refugee, whether permanent or
temporary, the types and extent of employment available to the refugee,
and the extent to which the refugee received permission to hold
property and to enjoy other rights and privileges, such as travel
documentation including a right of entry or reentry, education, public
relief, or naturalization, ordinarily available to others resident in
the country.
Sec. 208.16 Withholding of removal.
(a) Consideration of application for withholding of removal. An
asylum officer shall not decide whether the exclusion, deportation, or
removal of an alien to a country where the alien's life or freedom
would be threatened must be withheld, except in the case of an alien
who is otherwise eligible for asylum but is precluded from being
granted such status due solely to section 207(a)(5) of the Act. In
exclusion, deportation, or removal proceedings, an immigration judge
may adjudicate both an asylum claim and a request for withholding of
removal whether or not asylum is granted.
(b) Eligibility for withholding of removal; burden of proof. The
burden of proof is on the applicant for withholding of removal to
establish that his or her life or freedom would be threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion. The
testimony of the applicant, if credible, may be sufficient to sustain
the burden of proof without corroboration. The evidence shall be
evaluated as follows:
(1) The applicant's life or freedom shall be found to be threatened
if it is more likely than not that he or she would be persecuted on
account of race, religion, nationality, membership in a particular
social group, or political opinion.
(2) If the applicant is determined to have suffered persecution in
the past such that his or her life or freedom was threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion, it shall
be presumed that his or her life or freedom would be threatened on
return to that country unless a preponderance of the evidence
establishes that conditions in the country have changed to such an
extent that it is no longer more likely than not that the applicant
would be so persecuted there.
(3) In evaluating whether the applicant has sustained the burden of
proving that his or her life or freedom would be threatened in a
particular country on account of race, religion, nationality,
membership in a particular social group, or political opinion, the
asylum officer or immigration judge shall not require the applicant to
provide evidence that he or she would be singled out individually for
such persecution if:
(i) The applicant establishes that there is a pattern or practice
in the country of proposed removal of persecution of a group of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion; and
(ii) The applicant establishes his or her own inclusion in and
identification with such group of persons such that it is more likely
than not that his or her life or freedom would be threatened upon
return.
(c) Approval or denial of application. (1) General. Subject to
paragraphs (c)(2) and (c)(3) of this section, an application for
withholding of deportation or removal to a country of proposed removal
shall be granted if the applicant's eligibility for withholding is
established pursuant to paragraph (b) of this section.
(2) Mandatory denials. Except as provided in paragraph (c)(3) of
this section, an application for withholding of removal shall be denied
if the applicant falls within section 241(b)(3)(B) of the Act or, for
applications for withholding of deportation adjudicated in proceedings
commenced prior to April 1, 1997, within section 243(h)(2) of the Act
as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger
to the community. If the evidence indicates the applicability of one or
more of the grounds for denial enumerated in the Act, the applicant
shall have the burden of proving by a preponderance of the evidence
that such grounds do not apply.
(3) Exception to the prohibition on withholding of deportation in
certain cases. Section 243(h)(3) of the Act, as added by section 413 of
Pub. L. 104-132, shall apply only to applications adjudicated in
proceedings commenced before April 1, 1997, and in which final action
had not been taken before April 24, 1996. The discretion permitted by
that section to override section 243(h)(2) shall be exercised only in
the case of an applicant convicted of an aggravated felony (or
felonies) where he or she was sentenced to an aggregate term of
imprisonment of less than 5 years and the immigration judge determines
on an individual basis that the crime (or crimes) of which the
applicant was convicted does not constitute a particularly serious
crime. Except in the cases specified in this paragraph, the grounds for
denial of withholding of deportation in section 243(h)(2) of the Act as
it appeared prior to April 1, 1997, shall be deemed to comply with the
1967 Protocol Relating to the Status of Refugees.
(d) Reconsideration of discretionary denial of asylum. In the event
that an applicant is denied asylum solely in the exercise of
discretion, and the applicant is subsequently granted withholding of
deportation or removal under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him or her, the denial of asylum shall be
reconsidered. Factors to be considered will include the reasons for the
denial and reasonable alternatives available to the applicant such as
reunification with his or her spouse or minor children in a third
country.
Sec. 208.17 Decisions.
The decision of an asylum officer to grant or to deny asylum or
withholding of removal, or to refer an asylum application in accordance
with Sec. 208.14(b), shall be communicated in writing to the applicant.
Notices of decisions to grant or deny asylum by asylum officers shall
generally be served in person unless, in the discretion of the asylum
office director, routine service by mail is appropriate. A letter
communicating denial of the
[[Page 468]]
application shall state the basis for denial of the asylum application.
The letter also shall contain an assessment of the applicant's
credibility, unless the denial is the result of the applicant's
conviction of an aggravated felony. Pursuant to Sec. 208.9(d), an
applicant must appear in person to receive and to acknowledge receipt
of the decision.
Sec. 208.18 Determining if an asylum application is frivolous.
For applications filed on or after April 1, 1997, an applicant is
subject to the provisions of section 208(d)(6) of the Act only if a
final order by an immigration judge or the Board of Immigration Appeals
specifically finds that the alien knowingly filed a frivolous asylum
application. An asylum application is frivolous if it is fabricated or
is brought for an improper purpose. Such finding shall only be made if
the immigration judge or the Board is satisfied that the applicant,
during the course of the proceedings, has had sufficient opportunity to
account for any discrepancies or implausible aspects of the claim.
Sec. 208.19 [Reserved]
Sec. 208.20 Effect on exclusion, deportation and removal proceedings.
(a) An alien who has been granted asylum may not be deported or
removed unless his or her asylum status is terminated pursuant to
Sec. 208.22. An alien in exclusion, deportation, or removal proceedings
who is granted withholding of removal or deportation may not be
deported or removed to the country to which his or her deportation or
removal is ordered withheld unless the withholding order is terminated
pursuant to Sec. 208.22.
(b) When an alien's asylum status or withholding of removal or
deportation is terminated under this chapter, the Service shall
initiate removal proceedings under section 235 or 240 of the Act, as
appropriate, if the alien is not already in exclusion, deportation, or
removal proceedings. Removal proceedings may also be in conjunction
with a termination hearing scheduled under Sec. 208.22(e).
Sec. 208.21 Restoration of status.
An alien who was maintaining his or her nonimmigrant status at the
time of filing an asylum application and has such application denied
may continue in or be restored to that status, if it has not expired.
Sec. 208.22 Termination of asylum or withholding of removal or
deportation.
(a) Termination of asylum by the Service. Except as provided in
paragraph (e) of this section, an asylum officer may terminate a grant
of asylum made under the jurisdiction of an asylum officer or a
district director if following an interview, the asylum officer
determines that:
(1) There is a showing of fraud in the alien's application such
that he or she was not eligible for asylum at the time it was granted;
(2) As to the applications filed on or after April 1, 1997, one or
more of the conditions described in section 208(c)(2) of the Act exist;
or
(3) As to applications filed before April 1, 1997, the alien no
longer has a well-founded fear of persecution upon return due to a
change of country conditions in the alien's country of nationality or
habitual residence or the alien has committed any act that would have
been grounds for denial of asylum under Sec. 208.14(e)(2).
(b) Termination of withholding of deportation or removal by the
Service. Except as provided in paragraph (e) of this section, an asylum
officer may terminate a grant of withholding of deportation or removal
made under the jurisdiction of an asylum officer or a district director
if the asylum officer determines, following an interview, that:
(1) The alien is no longer entitled to withholding of deportation
or removal due to a change of conditions in the country to which
removal was withheld;
(2) There is a showing of fraud in the alien's application such
that the alien was not eligible for withholding of removal at the time
it was granted;
(3) The alien has committed any other act that would have been
grounds for denial of withholding of removal under section 241(b)(3)(B)
of the Act had it occurred prior to the grant of withholding of
removal; or
(4) For applications filed in proceedings commenced before April 1,
1997, the alien has committed any act that would have been grounds for
denial of withholding of deportation under section 243(h)(2) of the
Act.
(c) Procedure. Prior to the termination of a grant of asylum or
withholding of deportation or removal, the alien shall be given notice
of intent to terminate, with the reasons therefor, at least 30 days
prior to the interview specified in paragraph (a) of this section
before an asylum officer. The alien shall be provided the opportunity
to present evidence showing that he or she is still eligible for asylum
or withholding of deportation or removal. If the asylum officer
determines that the alien is no longer eligible for asylum or
withholding of deportation or removal, the alien shall be given written
notice that asylum status or withholding of deportation or removal and
any employment authorization issued pursuant thereto, are terminated.
(d) Termination of derivative status. The termination of asylum
status for a person who was the principal applicant shall result in
termination of the asylum status of a spouse or child whose status was
based on the asylum application of the principal. Such termination
shall not preclude the spouse or child of such alien from separately
asserting an asylum or withholding of deportation or removal claim.
(e) Termination of asylum or withholding of deportation or removal
by the Executive Office for Immigration Review. An immigration judge or
the Board of Immigration Appeals may reopen a case pursuant to Sec. 3.2
or Sec. 3.23 of this chapter for the purpose of terminating a grant of
asylum or withholding of deportation or removal made under the
jurisdiction of an immigration judge. In such a reopened proceeding,
the Service must establish, by a preponderance of evidence, one or more
of the grounds set forth in paragraphs (a) or (b) of this section. In
addition, an immigration judge may terminate a grant of asylum or
withholding of deportation or removal made under the jurisdiction of
the Service at any time after the alien has been provided a notice of
intent to terminate by the Service. Any termination under this
paragraph may occur in conjunction with an exclusion, deportation or
removal proceeding.
(f) Termination of asylum for arriving aliens. If the Service
determines that an applicant for admission who had previously been
granted asylum in the United States falls within conditions set forth
in section 208(c)(2) of the Act and is inadmissible, the Service shall
issue a notice of intent to terminate asylum and initiate removal
proceedings under section 240 of the Act. The alien shall present his
or her response to the intent to terminate during proceedings before
the immigration judge.
Secs. 208.23-208.29 [Reserved]
Subpart B--Credible Fear of Persecution
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, the Service has exclusive jurisdiction
to make credible fear determinations, and the Executive
[[Page 469]]
Office for Immigration Review has exclusive jurisdiction to review such
determinations. Except as otherwise provided in this subpart,
paragraphs (b) through (e) of this section are the exclusive procedures
applicable to credible fear interviews, determinations, and review
under section 235(b)(1)(B) of the Act.
(b) Interview and procedure. The asylum officer, as defined in
section 235(b)(1)(E) of the Act, will conduct the interview in a
nonadversarial manner and separate and apart from the general public.
At the time of the interview, the alien may be required to register his
or her identity electronically or through any other means designated by
the Attorney General. The alien may consult with a person or persons of
the alien's choosing prior to the interview or any review thereof, and
may present other evidence when available. Such consultation shall be
at no expense to the Government and shall not unreasonably delay the
process. Any person or persons with whom the alien chooses to consult
may be present at the interview and may be permitted, in the discretion
of the asylum officer, to present a brief statement at the end of the
interview. The asylum officer, in his or her discretion, may place
reasonable limits on the number of such persons who may be present at
the interview and on the length of statement or statements made. If the
alien is unable to proceed in English, and if the asylum officer is
unable to proceed competently in a language chosen by the alien, the
asylum officer shall arrange for the assistance of an interpreter in
conducting the interview. The interpreter may not be a representative
or employee of the applicant's country of nationality or, if the
applicant is stateless, the applicant's country of last habitual
residence.
(c) Authority. Asylum officers conducting credible fear interviews
shall have the authorities described in Sec. 208.9(c).
(d) Referral for an asylum hearing. If an alien, other than an
alien stowaway, is found to have a credible fear of persecution, the
asylum officer will so inform the alien, arrange for his or her
detention, and issue a Form I-862, Notice to Appear, for full
consideration of the asylum claim in proceedings under section 240 of
the Act. Parole of the alien may only be considered in accordance with
section 212(d)(5) of the Act and Sec. 212.5 of this chapter. If an
alien stowaway is found to have a credible fear of persecution, the
asylum officer will so inform the alien, arrange for his or her
detention, and issue a Form I-863, Notice to Referral to Immigration
Judge, for full consideration of the asylum claim in proceedings under
Sec. 208.2(b)(1).
(e) Removal of aliens with no credible fear of persecution. If an
alien, other than an alien stowaway, is found not to have a credible
fear of persecution, the asylum officer shall order the alien removed
and issue a Form I-860, Notice and Order of Expedited Removal. If an
alien stowaway is found not to have a credible fear of persecution, the
asylum officer shall order the alien removed from the United States in
accordance with section 235(a)(2) of the Act. The asylum officer shall
also advise the alien of his or her right to request that an
immigration judge review the negative decision.
(f) Review by immigration judge. The asylum officer's negative
decision regarding credible fear shall be subject to review by an
immigration judge upon the applicant's verbal or written request, in
accordance with section 235(b)(1)(B)(iii)(III) of the Act. If the alien
requests such review, the asylum officer shall arrange for the
detention of the alien and serve him or her with a Form I-863, Notice
of Referral to Immigration Judge. Copies of the Form I-863, the asylum
officer's notes, and other materials upon which the determination was
based shall be provided to the immigration judge with the negative
determination. Upon review of the asylum officer's negative credible
fear determination:
(1) If the immigration judge concurs with the determination of the
asylum officer that the alien does not have a credible fear of
persecution, the case shall be returned to the Service for removal of
the alien.
(2) If the immigration judge finds that the alien, other than an
alien stowaway, possesses a credible fear of persecution, the
immigration judge shall vacate the order of the asylum officer issued
on Form I-860 and the Service may commence removal proceedings under
section 240 of the Act, during which time the alien may file an asylum
application in accordance with Sec. 208.4(b)(3)(i).
(3) If the immigration judge finds that an alien stowaway possesses
a credible fear of persecution, the alien shall be allowed to file an
asylum application before the immigration judge in accordance with
Sec. 208.4(b)(3)(iii). The immigration judge shall decide the asylum
application as provided in that section. Such decision may be appealed
by either the stowaway or the Service to the Board of Immigration
Appeals. If and when a denial of the asylum application becomes final,
the alien shall be removed from the United States in accordance with
section 235(a)(2) of the Act. If and when an approval of the asylum
application becomes final, the Service shall terminate removal
proceedings under section 235(a)(2) of the Act.
PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED
ASYLUM
42. The authority citation for part 209 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252,
1282; 8 CFR part 2.
Sec. 209.1 [Amended]
43. In Sec. 209.1, paragraph (a)(1) is amended in the first
sentence by revising the reference to ``, 236, and 237'' to read ``and
240''.
44. In Sec. 209.2, the last sentence of paragraph (c) is revised to
read as follows:
Sec. 209.2 Adjustment of status of alien granted asylum.
* * * * *
(c) Application. * * * If an alien has been placed in deportation,
exclusion, or removal proceedings under any section of this Act (as
effective on the date such proceedings commenced), the application can
be filed and considered only in those proceedings.
* * * * *
PART 211--DOCUMENTARY REQUIREMENTS; IMMIGRANTS; WAIVERS
45. The authority citation for part 211 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.
46. Part 211 is revised to read as follows:
Sec.
211.1 Visas.
211.2 Passports.
211.3 Expiration of immigrant visas, reentry permits, refugee
travel documents, and Forms I-551.
211.4 Waiver of documents for returning residents.
211.5 Alien commuters.
Sec. 211.1 Visas.
(a) General. Except as provided in paragraph (b) of this section,
each arriving alien applying for admission (or boarding the vessel or
aircraft on which he or she arrives) into the United States for lawful
permanent residence, or as a returning lawful permanent resident, shall
present one of the following:
(1) A valid, unexpired immigrant visa;
(2) A valid, unexpired Form I-551, Alien Registration Receipt Card,
if seeking readmission after a temporary
[[Page 470]]
absence of less than one year, or in the case of a crewmember regularly
serving on board a vessel or aircraft of United States registry seeking
readmission after any job-connected absence;
(3) A valid, unexpired Form I-327, Permit to Reenter the United
States;
(4) A valid, unexpired Form I-571, Refugee Travel Document,
properly endorsed to reflect admission as a lawful permanent resident;
(5) An expired Form I-551, Alien Registration Receipt Card,
accompanied by a filing receipt issued within the previous six months
for either a Form I-751, Petition to Remove the Conditions on
Residence, or Form I-829, Petition by Entrepreneur to Remove
Conditions, if seeking admission or readmission after a temporary
absence of less than one year;
(6) A Form I-551, whether or not expired, presented by a civilian
or military employee of the United States Government, who was outside
the United States pursuant to official orders, or the spouse or child
of such employee who is preceding, accompanying or following to join
within four months the employee, returning to the United States; or
(7) Form I-551, whether or not expired, or a transportation letter
issued by an American consular officer, presented by an employee of the
American University of Beirut, returning temporarily to the United
States before resuming employment with the American University of
Beirut, or resuming permanent residence in the United States.
(b) Waivers. (1) A waiver of the visa required in paragraph (a) of
this section shall be granted without fee by the district director,
upon presentation of the child's birth certificate, to a child born
subsequent to the issuance of an immigrant visa to his or her
accompanying parent who applies for admission during the validity of
such a visa; or a child born during the temporary visit abroad of a
mother who is a lawful permanent resident alien, or a national, of the
United States, provided that the child's application for admission to
the United States is made within two years of birth, the child is
accompanied by the parent who is applying for readmission as a
permanent resident upon the first return of the parent to the United
States after the birth of the child, and the accompanying parent is
found to be admissible to the United States.
(2) For an alien described in paragraph (b)(1) of this section,
recordation of the child's entry shall be on Form I-181, Memorandum of
Creation of Record of Admission for Lawful Permanent Residence. The
carrier of such alien shall not be liable for a fine pursuant to
section 273 of the Act.
(3) If an immigrant alien returning to an unrelinquished lawful
permanent residence in the United States after a temporary absence
abroad believes that good cause exists for his or her failure to
present an immigrant visa, Form I-551, or reentry permit, the alien may
file an application for a waiver of this requirement with the district
director in charge of the port-of-entry. To apply for this waiver, the
alien must file Form I-193, Application for Waiver of Passport and/or
Visa, with the fee prescribed in Sec. 103.7(b)(1) of this chapter,
except that if the alien's Form I-551 was lost or stolen, the alien
shall instead file Form I-90, Application to Replace Alien Registration
Receipt Card, with the fee prescribed in Sec. 103.7(b)(1) of this
chapter. In the exercise of discretion, the district director in charge
of the port-of-entry may waive the alien's lack of an immigrant visa,
Form I-551, or reentry permit and admit the alien as a returning
resident, if the district director is satisfied that the alien has
established good cause for the alien's failure to present an immigrant
visa, Form I-551, or reentry permit.
(c) Immigrants having occupational status defined in section
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry
permit, or Form I-551 shall be invalid when presented by an alien who
has an occupational status under section 101(a)(15) (A), (E), or (G) of
the Act, unless he or she has previously submitted, or submits at the
time he or she applies for admission to the United States, the written
waiver required by section 247(b) of the Act and 8 CFR part 247.
(d) Returning temporary residents. (1) Form I-688, Temporary
Resident Card, may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 210.1 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within one year after a temporary absence abroad.
(2) Form I-688 may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of Sec. 245a.2 of this chapter, such status not
having changed, and who is returning to an unrelinquished residence
within 30 days after a temporary absence abroad, provided that the
aggregate of all such absences abroad during the temporary residence
period has not exceeded 90 days.
Sec. 211.2 Passports.
(a) A passport valid for the bearer's entry into a foreign country
at least 60 days beyond the expiration date of his or her immigrant
visa shall be presented by each immigrant except an immigrant who:
(1) Is the parent, spouse, or unmarried son or daughter of a United
States citizen or of an alien lawful permanent resident of the United
States,
(2) Is entering under the provisions of Sec. 211.1(a)(2) through
(a)(7), or Sec. 211.1(b)(1),
(3) Is a stateless person or a person who because of his or her
opposition to Communism is unwilling or unable to obtain a passport
from the country of his or her nationality, or is the accompanying
spouse or unmarried son or daughter of such immigrant,
(4) Is a member of the Armed Forces of the United States,
(b) If an alien seeking admission as an immigrant with an immigrant
visa believes that good cause exists for his or her failure to present
a passport, the alien may file an application for a waiver of this
requirement with the district director in charge of the port-of-entry.
To apply for this waiver, the alien must file Form I-193, Application
for Waiver of Passport and/or Visa, with the fee prescribed in
Sec. 103.7(b)(1) of this chapter. In the exercise of discretion, the
district director in charge of the port-of-entry may waive the alien's
lack of passport and admit the alien as an immigrant, if the district
director is satisfied that the alien has established good cause for the
alien's failure to present a passport.
Sec. 211.3 Expiration of immigrant visas, reentry permits, refugee
travel document, and Form I-551.
An immigrant visa, reentry permit, refugee travel document, or Form
I-551 shall be regarded as unexpired if the rightful holder embarked or
enplaned before the expiration of his immigrant visa, reentry permit,
or refugee travel document, or, with respect to Form I-551, before the
first anniversary of the date on which he departed from the United
States: provided, that the vessel or aircraft on which he so embarked
or enplaned arrives in the United States or foreign contiguous
territory on a continuous voyage. The continuity of the voyage shall
not be deemed to have been interrupted by scheduled or emergency stops
of the vessel or aircraft en route to the United States or foreign
contiguous territory, or by a layover in foreign contiguous territory
necessitated solely for the purpose of effecting a transportation
connection to the United States.
[[Page 471]]
Sec. 211.4 Waiver of documents for returning residents.
(a) Pursuant to the authority contained in section 211(b) of the
Act, an alien previously lawfully admitted to the United States for
permanent residence who, upon return from a temporary absence was
inadmissible because of failure to have or to present a valid passport,
immigrant visa, reentry permit, border crossing card, or other document
required at the time of entry, may be granted a waiver of such
requirement in the discretion of the district director if the district
director determines that such alien:
(1) Was not otherwise inadmissible at the time of entry, or
(2) Having been otherwise inadmissible at the time of entry is with
respect thereto qualified for an exemption from deportability under
section 237(a)(1)(H) of the Act, and
(3) Is not otherwise subject to removal.
(b) Denial of a waiver by the district director is not appealable
but shall be without prejudice to renewal of an application and
reconsideration in proceedings before the immigration judge.
Sec. 211.5 Alien commuters.
(a) General. An alien lawfully admitted for permanent residence or
a special agricultural worker lawfully admitted for temporary residence
under section 210 of the Act may commence or continue to reside in
foreign contiguous territory and commute as a special immigrant defined
in section 101(a)(27)(A) of the Act to his or her place of employment
in the United States. An alien commuter engaged in seasonal work will
be presumed to have taken up residence in the United States if he or
she is present in this country for more than six months, in the
aggregate, during any continuous 12-month period. An alien commuter's
address report under section 265 of the Act must show his or her actual
residence address even though it is not in the United States.
(b) Loss of residence status. An alien commuter who has been out of
regular employment in the United States for a continuous period of six
months shall be deemed to have lost residence status, notwithstanding
temporary entries in the interim for other than employment purposes. An
exception applies when employment in the United States was interrupted
for reasons beyond the individual's control other than lack of a job
opportunity or the commuter can demonstrate that he or she has worked
90 days in the United States in the aggregate during the 12-month
period preceding the application for admission into the United States.
(c) Eligibility for benefits under the immigration and nationality
laws. Until he or she has taken up residence in the United States, an
alien commuter cannot satisfy the residence requirements of the
naturalization laws and cannot qualify for any benefits under the
immigration laws on his or her own behalf or on behalf or his or her
relatives other than as specified in paragraph (a) of this section.
When an alien commuter takes up residence in the United States, he or
she shall no longer be regarded as a commuter. He or she may facilitate
proof of having taken up such residence by notifying the Service as
soon as possible, preferably at the time of his or her first reentry
for that purpose. Application for issuance of a new alien registration
receipt card to show that he or she has taken up residence in the
United States shall be made on Form I-90.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
47. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
48. Section 212.5 is amended by:
a. Revising paragraph (a) and (b);
b. Revising introductory text in paragraph (c);
c. Revising paragraph (c)(1); and by
d. Revising paragraph (d)(2)(i), to read as follows:
Sec. 212.5 Parole of aliens into the United States.
(a) The parole of aliens within the following groups who have been
or are detained in accordance with Sec. 235.3 (b) or (c) of this
chapter would generally be justified for ``urgent humanitarian
reasons'' or ``significant public benefit,'' provided the aliens
present neither a security risk nor a risk of absconding:
(1) Aliens who have serious medical conditions in which continued
detention would not be appropriate;
(2) Women who have been medically certified as pregnant;
(3) Aliens who are defined as juveniles in Sec. 236.3(a) of this
chapter. The district director or chief patrol agent shall follow the
guidelines set forth in Sec. 236.3(a) of this chapter in determining
under what conditions a juvenile should be paroled from detention;
(i) Juveniles may be released to a relative (brother, sister, aunt,
uncle) not in Service detention who is willing to sponsor a minor and
the minor may be released to that relative notwithstanding that the
juvenile has a relative who is in detention.
(ii) If a relative who is not in detention cannot be located to
sponsor the minor, the minor may be released with an accompany relative
who is in detention.
(iii) If the Service cannot locate a relative in or out of
detention to sponsor the minor, but the minor has identified a
nonrelative in detention who accompanied him on arrival, the question
of releasing the minor and the accompanying nonrelative adult shall be
addressed on a case-by-case basis.
(4) Aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the
United States; or
(5) Aliens whose continued detention is not in the public interest
as determined by the district director or chief patrol agent.
(b) In the case of all other arriving aliens, except those detained
under Sec. 235.3 (b) or (c) of this chapter and paragraph (a) of this
section, the district director or chief patrol agent may, after review
of the individual case, parole into the United States temporarily in
accordance with section 212(d)(5)(A) of the Act, any alien applicant
for admission, under such terms and conditions, including those set
forth in paragraph (c) of this section, as he or she may deem
appropriate. An alien who arrives at a port-of-entry and applies for
parole into the United States for the sole purpose of seeking
adjustment of status under section 245A of the Act, without benefit of
advance authorization as described in paragraph (e) of this section
shall be denied parole and detained for removal in accordance with the
provisions of Sec. 235.3 (b) or (c) of this chapter. An alien seeking
to enter the United States for the sole purpose of applying for
adjustment of status under section 210 of the Act shall be denied
parole and detained for removal under Sec. 235.3 (b) or (c) of this
chapter, unless the alien has been recommended for approval of such
application for adjustment by a consular officer at an Overseas
Processing Office.
(c) Conditions. In any case where an alien is paroled under
paragraph (a) or (b) of this section, the district director or chief
patrol agent may require reasonable assurances that the alien will
appear at all hearings and/or depart the United States when required to
do so. Not all factors listed need be present for parole to be
exercised. The district director or chief patrol agent should apply
reasonable discretion. The
[[Page 472]]
consideration of all relevant factors includes:
(1) The giving of an undertaking by the applicant, counsel, or a
sponsor to ensure appearances or departure, and a bond may be required
on Form I-352 in such amount as the district director or chief patrol
agent may deem appropriate;
* * * * *
(d) * * *
(2)(i) On notice. In cases not covered by paragraph (d)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of the district director or chief
patrol agent in charge of the area in which the alien is located,
neither humanitarian reasons nor public benefit warrants the continued
presence of the alien in the United States, parole shall be terminated
upon written notice to the alien and he or she shall be restored to the
status that he or she had at the time of parole. When a charging
document is served on the alien, the charging document will constitute
written notice of termination of parole, unless otherwise specified.
Any further inspection or hearing shall be conducted under section 235
or 250 of the Act and this chapter, or any order of exclusion,
deportation, or removal previously entered shall be executed. If the
exclusion, deportation, or removal order cannot be executed by removal
within a reasonable time, the alien shall again be released on parole
unless in the opinion of the district director or the chief patrol
agent the public interest requires that the alien be continued in
custody.
* * * * *
49. In Sec. 212.6 paragraph (a)(2) is revised to read as follows:
Sec. 212.6 Nonresident alien border crossing cards.
(a) * * *
(2) Mexican border crossing card, Form I-186 or I-586. The rightful
holder of a nonresident alien Mexican border crossing card, Form I-186
or I-586, may be admitted under Sec. 235.1(f) of this chapter if found
otherwise admissible. However, any alien seeking entry as a visitor for
business or pleasure must also present a valid passport and shall be
issued Form I-94 if the alien is applying for admission from:
(i) A country other than Mexico or Canada, or
(ii) Canada if the alien has been in a country other than the
United States or Canada since leaving Mexico.
* * * * *
PART 213--ADMISSION OF ALIENS ON GIVING BOND OR CASH DEPOSIT
50. The authority citation for part 213 is revised to read as
follows:
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Sec. 213.1 [Amended]
51. Section 213.1 is amended in the last sentence by revising the
term ``part 103'' to read ``Sec. 103.6''.
PART 214--NONIMMIGRANT CLASSES
52. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
53. Section 214.1 is amended by revising paragraph (c)(4)(iv) to
read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(c) * * *
(4) * * *
(iv) The alien is not the subject of deportation proceedings under
section 242 of the Act (prior to April 1, 1997) or removal proceedings
under section 240 of the Act.
* * * * *
PART 215--[REMOVED]
54. Part 215 is removed.
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
55. The authority citation for part 216 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
Section 216.3 is revised to read as follows:
Sec. 216.3 Termination of conditional resident status.
(a) During the two-year conditional period. The director shall send
a formal written notice to the conditional permanent resident of the
termination of the alien's conditional permanent resident status if the
director determines that any of the conditions set forth in section
216(b)(1) or 216A(b)(1) of the Act, whichever is applicable, are true,
or it becomes known to the government that an alien entrepreneur who
was admitted pursuant to section 203(b)(5) of the Act obtained his or
her investment capital through other than legal means (such as through
the sale of illegal drugs). If the Service issues a notice of intent to
terminate an alien's conditional resident status, the director shall
not adjudicate Form I-751 or Form I-829 until it has been determined
that the alien's status will not be terminated. During this time, the
alien shall continue to be a lawful conditional permanent resident with
all the rights, privileges, and responsibilities provided to persons
possessing such status. Prior to issuing the notice of termination, the
director shall provide the alien with an opportunity to review and
rebut the evidence upon which the decision is to be based, in
accordance with Sec. 103.2(b)(2) of this chapter. The termination of
status, and all of the rights and privileges concomitant thereto
(including authorization to accept or continue in employment in this
country), shall take effect as of the date of such determination by the
director, although the alien may request a review of such determination
in removal proceedings. In addition to the notice of termination, the
director shall issue a notice to appear in accordance with 8 CFR part
239. During the ensuing removal proceedings, the alien may submit
evidence to rebut the determination of the director. The burden of
proof shall be on the Service to establish, by a preponderance of the
evidence, that one or more of the conditions in section 216(b)(1) or
216A(b)(1) of the Act, whichever is applicable, are true, or that an
alien entrepreneur who was admitted pursuant to section 203(b)(5) of
the Act obtained his or her investment capital through other than legal
means (such as through the sale of illegal drugs).
(b) Determination of fraud after two years. If, subsequent to the
removal of the conditional basis of an alien's permanent resident
status, the director determines that an alien spouse obtained permanent
resident status through a marriage which was entered into for the
purpose of evading the immigration laws or an alien entrepreneur
obtained permanent resident status through a commercial enterprise
which was improper under section 216A(b)(1) of the Act, the director
may institute rescission proceedings pursuant to section 246 of the Act
(if otherwise appropriate) or removal proceedings under section 240 of
the Act.
57. Section 216.4 is amended by:
a. Revising paragraphs (a)(6) and (b)(3);
b. Revising paragraph (c)(4);
c. Removing the unnumbered paragraph immediately after paragraph
(c)(4); and by
d. Revising paragraph (d)(2) to read as follows:
[[Page 473]]
Sec. 216.4 Joint petition to remove conditional basis of lawful
permanent resident status for alien spouse.
(a) * * *
(6) Termination of status for failure to file petition. Failure to
properly file Form I-751 within the 90-day period immediately preceding
the second anniversary of the date on which the alien obtained lawful
permanent residence on a conditional basis shall result in the
automatic termination of the alien's permanent residence status and the
initiation of proceedings to remove the alien from the United States.
In such proceedings the burden shall be on the alien to establish that
he or she complied with the requirement to file the joint petition
within the designated period. Form I-751 may be filed after the
expiration of the 90-day period only if the alien establishes to the
satisfaction of the director, in writing, that there was good cause for
the failure to file Form I-751 within the required time period. If the
joint petition is filed prior to the jurisdiction vesting with the
immigration judge in removal proceedings and the director excuses the
late filing and approves the petition, he or she shall restore the
alien's permanent residence status, remove the conditional basis of
such status and cancel any outstanding notice to appear in accordance
with Sec. 239.2 of this chapter. If the joint petition is not filed
until after jurisdiction vests with the immigration judge, the
immigration judge may terminate the matter upon joint motion by the
alien and the service.
(b) * * *
(3) Termination of status for failure to appear for interview. If
the conditional resident alien and/or the petitioning spouse fail to
appear for an interview in connection with the joint petition required
by section 216(c) of the Act, the alien's permanent residence status
will be automatically terminated as of the second anniversary of the
date on which the alien obtained permanent residence. The alien shall
be provided with written notification of the termination and the
reasons therefor, and a notice to appear shall be issued placing the
alien under removal proceedings. The alien may seek review of the
decision to terminate his or her status in such proceedings, but the
burden shall be on the alien to establish compliance with the interview
requirements. If the alien submits a written request that the interview
be rescheduled or that the interview be waived, and the director
determines that there is good cause for granting the request, the
interview may be rescheduled or waived, as appropriate. If the
interview is rescheduled at the request of the petitioners, the Service
shall not be required to conduct the interview within the 90-day period
following the filing of the petition.
(c) * * *
(4) A fee or other consideration was given (other than a fee or
other consideration to an attorney for assistance in preparation of a
lawful petition) in connection with the filing of the petition through
which the alien obtained conditional permanent residence. If derogatory
information is determined regarding any of these issues, the director
shall offer the petitioners the opportunity to rebut such information.
If the petitioners fail to overcome such derogatory information the
director may deny the joint petition, terminate the alien's permanent
residence, and issue a notice to appear to initiate removal
proceedings. If derogatory information not relating to any of these
issues is determined during the course of the interview, such
information shall be forwarded to the investigations unit for
appropriate action. If no unresolved derogatory information is
determined relating to these issues, the petition shall be approved and
the conditional basis of the alien's permanent residence status
removed, regardless of any action taken or contemplated regarding other
possible grounds for removal.
(d) * * *
(2) Denial. If the director denies the joint petition, he or she
shall provide written notice to the alien of the decision and the
reason(s) therefor and shall issue a notice to appear under section 239
of the Act and 8 CFR part 239. The alien's lawful permanent residence
status shall be terminated as of the date of the director's written
decision. The alien shall also be instructed to surrender any Alien
Registration Receipt Card previously issued by the Service. No appeal
shall lie from the decision of the director; however, the alien may
seek review of the decision in removal proceedings. In such proceedings
the burden of proof shall be on the Service to establish, by a
preponderance of the evidence, that the facts and information set forth
by the petitioners are not true or that the petition was properly
denied.
58. Section 216.5 is amended by revising paragraphs (a)(1), (d),
(e)(1), (e)(3)(ii), and (f) to read as follows:
Sec. 216.5 Waiver of requirement to file joint petition to remove
conditions by alien spouse.
(a) * * *
(1) Removal from the United States would result in extreme
hardship;
* * * * *
(d) Interview. The service center director may refer the
application to the appropriate local office and require that the alien
appear for an interview in connection with the application for a
waiver. The director shall deny the application and initiate removal
proceedings if the alien fails to appear for the interview as required,
unless the alien establishes good cause for such failure and the
interview is rescheduled.
(e) Adjudication of waiver application. (1) Application based on
claim of hardship. In considering an application for a waiver based
upon an alien's claim that extreme hardship would result from the
alien's removal from the United States, the director shall take into
account only those factors that arose subsequent to the alien's entry
as a conditional permanent resident. The director shall bear in mind
that any removal from the United States is likely to result in a
certain degree of hardship, and that only in those cases where the
hardship is extreme should the application for a waiver be granted. The
burden of establishing that extreme hardship exists rests solely with
the applicant.
* * * * *
(3) * * *
(ii) A conditional resident or former conditional resident who has
not departed the United States after termination of resident status may
apply for the waiver. A conditional resident who is in exclusion,
deportation, or removal proceedings may apply for the waiver only until
such time as there is a final order of deportation or removal. The
conditional resident may apply for the waiver regardless of his or her
present marital status. The conditional resident may still be residing
with the citizen or permanent resident spouse, or may be divorced or
separated.
* * * * *
(f) Decision. The director shall provide the alien with written
notice of the decision on the application for waiver. If the decision
is adverse, the director shall advise the alien of the reasons
therefore, notify the alien of the termination of his or her permanent
residence status, instruct the alien to surrender any Alien
Registration Receipt Card issued by the Service and issue a notice to
appear placing the alien in removal proceedings. No appeal shall lie
from the decision of the director, however, the alien may seek review
of such decision in removal proceedings.
[[Page 474]]
PART 217--VISA WAIVER PILOT PROGRAM
59. The authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
60. Section 217.1 is revised to read as follows:
Sec. 217.1 Scope.
The Visa Waiver Pilot Program (VWPP) described in this section is
established pursuant to the provisions of section 217 of the Act.
61. Section 217.2 is revised to read as follows:
Sec. 217.2 Eligibility.
(a) Defintions. As used in this part, the term:
Carrier refers to the owner, charterer, lessee, or authorized agent
of any commercial vessel or commercial aircraft engaged in transporting
passengers to the United States from a foreign place.
Designated country refers to Andorra, Argentina, Australia,
Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Italy,
Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand,
Norway, San Marino, Spain, Sweden, Switzerland, and the United Kingdom.
The United Kingdom refers only to British citizens who have the
unrestricted right of permanent abode in the United Kingdom (England,
Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of
Man); it does not refer to British overseas citizens, British dependent
territories' citizens, or citizens of British Commonwealth countries.
Effective April 1, 1995, until September 30, 1998, or the expiration of
the Visa Waiver Pilot Program, whichever comes first, Ireland has been
designated as a Visa Waiver Pilot Program country with Probationary
Status in accordance with section 217(g) of the Act.
Return trip ticket means any return trip transportation ticket
presented by an arriving Visa Waiver Pilot Program applicant on a
participating carrier valid for at least 1 year, airline employee
passes indicating return passage, individual vouchers for return
passage, group vouchers for return passage for charter flights, and
military travel orders which include military dependents for return to
duty stations outside the United States on U.S. military flights. A
period of validity of 1 year need not be reflected on the ticket
itself, provided that the carrier agrees that it will honor the return
portion of the ticket at any time, as provided in Sec. 217.6(b)(2)(v).
(b) Special program requirements. (1) General. In addition to
meeting all of the requirements for the Visa Waiver Pilot Program
specified in section 217 of the Act, each applicant must posses a
valid, unexpired passport issued by a designated country and present a
completed, signed Form I-94W, Nonimmigrant Visa Waiver Arrival/
Departure Form.
(2) Persons previously removed. Aliens who have been deported or
removed from the United States, after having been determined
deportable, require the consent of the Attorney General to apply for
admission to the United States pursuant to section 212(a)(9)(A)(ii) of
the Act. Such persons may not be admitted to the United States under
the provisions of this part notwithstanding the fact that the required
consent of the Attorney General may have been secured. Such aliens must
secure a visa in order to be admitted to the United States as
nonimmigrants, unless otherwise exempt.
(c) Restrictions on manner of arrival. (1) Applicants arriving by
air and sea. Applicants must arrive on a carrier signatory to an
agreement specified in Sec. 217.6 and at the time of arrival must be in
possession of a return trip ticket that will transport the traveler out
of the United States to any other foreign port or place as long as the
trip does not terminate in contiguous territory or an adjacent island;
except that the return trip ticket may transport the traveler to
contiguous territory or an adjacent island, if the traveler is a
resident of the country of destination.
(2) Applicants arriving at land border ports-of-entry. Any Visa
Waiver Pilot Program applicant arriving at a land border port-of-entry
must provide evidence to the immigration officer of financial solvency
and a domicile abroad to which the applicant intends to return. An
applicant arriving at a land-border port-of-entry will be charged a fee
as prescribed in Sec. 103.7(b)(1) of this chapter for issuance of Form
I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form. A round-trip
transportation ticket is not required of applicants at land border
ports-of-entry.
(d) Aliens in transit. An alien who is in transit through the
United States is eligible to apply for admission under the Visa Waiver
Pilot Program, provided the applicant meets all other program
requirements.
62. Section 217.3 is revised to read as follows:
Sec. 217.3 Maintenance of status.
(a) Satisfactory departure. If an emergency prevents an alien
admitted under this part from departing from the United States within
his or her period of authorized stay, the district director having
jurisdiction over the place of the alien's temporary stay may, in his
or her discretion, grant a period of satisfactory departure not to
exceed 30 days. If departure is accomplished during that period, the
alien is to be regarded as having satisfactorily accomplished the visit
without overstaying the allotted time.
(b) Readmission after departure to contiguous territory or adjacent
island. An alien admitted to the United States under this part may be
readmitted to the United States for the balance of his or her Visa
Waiver Pilot Program admission period if he or she is otherwise
admissible.
63. Section 217.4 is amended by:
a. Revising the section heading:
b. Removing paragraph (a);
c. Redesignating paragraphs (b), (c), and (d) as paragraphs (a),
(b), and (c) respectively;
d. Revising newly redesignated paragraph (a)(1);
e. Adding a new paragraph (a)(3);
f. Revising newly redesignated paragraph (b); and by
g. Revising newly redesignated paragraph (c) to read as follows:
Sec. 217.4 Inadmissibility and deportability.
(a) Determinations of inadmissibility. (1) An alien who applies for
admission under the provisions of section 217 of the Act, who is
determined by an immigration officer not to be eligible for admission
under that section or to be inadmissible to the United States under one
or more of the grounds of inadmissibility listed in section 212 of the
Act (other than for lack of a visa), or who is in possession of and
presents fraudulent or counterfeit travel documents, will be refused
admission into the United States and removed. Such refusal and removal
shall be made at the level of the port director or officer-in-charge,
or an officer acting in that capacity, and shall be effected without
referral of the alien to an immigration judge for further inquiry,
examination, or hearing, except that an alien who presents himself or
herself as an applicant for admission under section 217 of the Act, who
applies for asylum in the United States must be issued a Notice of
Referral to Immigration Judge for a proceeding in accordance with
Sec. 208.2(b)(1) of this chapter.
* * * * *
(3) Refusal under paragraph (a)(1) of this section shall not
constitute removal for purposes of section 212(a)(9)(A) of the Act.
[[Page 475]]
(b) Determination of deportability. (1) An alien who has been
admitted to the United States under the provisions of section 217 of
the Act and of this part who is determined by an immigration officer to
be deportable from the United States under one or more of the grounds
of deportability listed in section 237 of the Act shall be removed from
the United States to his or her country of nationality or last
residence. Such removal shall be determined by the district director
who has jurisdiction over the place where the alien is found, and shall
be effected without referral of the alien to an immigration judge for a
determination of deportability, except that an alien admitted as a Visa
Waiver Pilot Program visitor who applies for asylum in the United
States must be issued a Notice of Referral to Immigration Judge for a
proceeding in accordance with Sec. 208.2(b)(1) of this chapter.
(2) Removal under paragraph (b)(1) is equivalent in all respects
and has the same consequences as removal after proceedings conducted
under section 240 of the Act.
(c)(1) Removal of inadmissible aliens who arrived by air or sea.
Removal of an alien from the United States under this section may be
effected using the return portion of the round trip passage presented
by the alien at the time of entry to the United States as required by
section 217(a)(7) of the Act. Such removal shall be on the first
available means of transportation to the alien's point of embarkation
to the United States. Nothing in this part absolves the carrier of the
responsibility to remove any inadmissible or deportable alien at
carrier expense, as provided in Sec. 217.6(b).
(2) Removal of inadmissible and deportable aliens who arrived at
land border ports-of-entry. Removal under this section will be by the
first available means of transportation deemed appropriate by the
district director.
Sec. 217.5 [Removed and reserved]
64. Section 217.5 is removed and reserved.
65. Section 217.6 is revised to read as follows:
Sec. 217.6 Carrier agreements.
(a) General. The carrier agreements referred to in section 217(e)
of the Act shall be made by the Commissioner on behalf of the Attorney
General and shall be on Form I-775, Visa Waiver Pilot Program
Agreement.
(b) Agreement provisions. (1) To be authorized to transport an
alien to the United States pursuant to section 217 of the Act and this
part, a carrier must enter into an agreement on Form I-775 to transport
as an applicant for admission under section 217 of the Act and this
chapter, only an alien who:
(i) Is a national of and in possession of a valid passport issued
by a country listed in Sec. 217.2;
(ii) Is in possession of a completed and signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form, prior to inspection;
(iii) Seeks admission into the United States for 90 days or less;
(iv) Is in possession of a round trip ticket; and
(v) Appears otherwise admissible.
(2) The carrier further agrees to:
(i) Submit to the Immigration and Naturalization Service the Form
I-94 was required by 8 CFR part 231 and section 217(e)(1)(B) of the
Act;
(ii) Remove from the United States any alien transported by the
carrier to the United States for admission under the Visa Waiver Pilot
Program, in the event that the alien is determined by an immigration
officer at the port-of-entry to be inadmissible or is determined to
have remained unlawfully beyond the 90-day period of admission under
the program;
(iii) Reimburse within 30 days of notice (not pay as a penalty) the
Service for any and all expenses incurred in the transportation (from
the point of arrival in the United States to the place of removal) of
any alien found inadmissible or deportable under this program;
(iv) Retain the responsibilities and obligations enumerated in this
part should the alien under the Visa Waiver Pilot Program depart
temporarily for a visit to foreign contiguous territory during the
period of authorized stay in the United States and be readmitted
pursuant to Sec. 217.3(b);
(v) Transport an alien found inadmissible to the United States or
deportable from the United States after admission under the Visa Waiver
Pilot Program, by accepting as full payment for return passage the
return portion of the transportation ticket as required in paragraph
(b)(1)(iv) of this section from the original port of arrival in the
United States to point of embarkation or to the country of nationality
or last residence.
(c) Termination of agreements. The Commissioner, on behalf of the
Attorney General, may terminate any carrier agreement under this part,
with 5 days notice to a carrier, for the carrier's failure to meet the
terms of such agreement. As a matter of discretion, the Commissioner
may notify a carrier of the existence of a basis for termination of a
carrier agreement under this part and allow the carrier a period not to
exceed 15 days within which the carrier may bring itself into
compliance with the terms of the carrier agreement. The agreement shall
be subject to cancellation by either party for any reason upon 15 days'
written notice to the other party.
PART 221--ADMISSION OF VISITORS OR STUDENTS
66. The authority citation for part 221 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1201; 8 CFR part 2.
Sec. 221.1 [Amended]
67. Section 221.1 is amended in the last sentence by revising the
term ``part 103'' to read ``Sec. 103.6''.
PART 223--REENTRY PERMITS, REFUGEE TRAVEL DOCUMENTS, AND ADVANCE
PAROLE DOCUMENTS
68. The authority citation for part 223 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1186a, 1203, 1225, 1226,
1227, 1251; Protocol Relating to the Status of Refugees, November 1,
1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR part 2.
69. In Sec. 223.1, paragraph (b) is revised to read as follows:
Sec. 223.1 Purpose of documents.
* * * * *
(b) Refugee travel document. A refugee travel document is issued
pursuant to this part and article 28 of the United Nations Convention
of July 29, 1951, for the purpose of travel. Except as provided in
Sec. 223.3(d)(2)(i), a person who holds refugee status pursuant to
section 207 of the Act, or asylum status pursuant to section 208 of the
Act, must have a refugee travel document to return to the United States
after temporary travel abroad unless he or she is in possession of a
valid advance parole document.
70. In Sec. 223.2, paragraph (b)(2) is revised to read as follows:
Sec. 223.2 Processing.
* * * * *
(b) * * *
(2) Refugee travel document. (i) General. Except as otherwise
provided in this section, an application may be approved if filed by a
person who is in the United States at the time of application, and
either holds valid refugee status under section 207 of the Act, valid
asylum status under section 208 of the Act, or is a permanent resident
and received such status as a direct result of his or her asylum or
refugee status.
[[Page 476]]
(ii) Discretionary authority to accept an application from an alien
not within the United States. As a matter of discretion, a district
having jurisdiction over a port-of-entry or a preinspection station
where an alien is an applicant for admission, or an overseas district
director having jurisdiction over the place where an alien is
physically present, may accept and adjudicate an application for a
refugee travel document from an alien who previously had been admitted
to the United States as a refugee, or who previously had been granted
asylum status in the United States, and who had departed from the
United States without having applied for such refugee travel document,
provided:
(A) The alien submits a Form I-131, Application for Travel
Document, with the fee required under Sec. 103.7(b)(1) of this chapter.
(B) The district director is satisfied that the alien did not
intend to abandon his or her refugee status at the time of departure
from the United States;
(C) The alien did not engage in any activities while outside the
United States that would be inconsistent with continued refugee or
asylum status; and
(D) The alien has been outside the United States for less than 1
year since his or her last departure.
* * * * *
71. In Sec. 223.3, paragraph (d)(2) is revised to read as follows:
Sec. 223.3 Validity and effect on admissibility.
* * * * *
(d) * * *
(2) Refugee travel document. (i) Inspection and immigration status.
Upon arrival in the United States, an alien who presents a valid
unexpired refugee travel document, or who has been allowed to file an
application for a refugee travel document and this application has been
approved under the procedure set forth in Sec. 223.2(b)(2)(ii), shall
be examined as to his or her admissibility under the Act. An alien
shall be accorded the immigration status endorsed in his or her refugee
travel document, or (in the case of an alien discussed in
Sec. 223.2(b)(2)(ii)) which will be endorsed in such document, unless
he or she is no longer eligible therefor, or he or she applies for and
is found eligible for some other immigration status.
(ii) Inadmissibility. If an alien who presents a valid unexpired
refugee travel document appears to the examining immigration officer to
be inadmissible, he or she shall be referred for proceedings under
section 240 of the Act. Section 235(c) of the Act shall not be
applicable.
PART 232--DETENTION OF ALIENS FOR PHYSICAL AND MENTAL EXAMINATION
72. The heading for part 232 is revised to read as set forth above.
73. The authority citation for part 232 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1222, 1224, 1252; 8 CFR part 2.
Sec. 232.1 Redesignated as 232.3 and revised]
74. Section 232.1 is redesignated as $232.3, and is revised to read
as follows:
Sec. 232.3 Arriving aliens.
When a district director has reasonable grounds for believing that
persons arriving in the United States should be detained for reasons
specified in section 232 of the Act, he or she shall, after
consultation with the United States Public Health Service at the port-
of-entry, notify the master or agent of the arriving vessel or aircraft
of his or her intention to effect such detention by serving on the
master or agent Form I-259 in accordance with Sec. 235.3(a) of this
chapter.
Sec. 234.1 and Sec. 234.2 [Redesignated as Secs. 232.1 and 232.2
respectively]
75. Sections 234.1 and 234.2 are redesignated as Secs. 232.1 and
232.2 respectively.
PART 234--[REMOVED]
76. Part 234 is removed.
77. The following parts are redesignated as set forth in the table
below:
------------------------------------------------------------------------
Old part New part
------------------------------------------------------------------------
Part 238.................................. Part 233.
Part 239.................................. Part 234.
------------------------------------------------------------------------
PART 233--CONTRACTS WITH TRANSPORTATION LINES
78. The authority citation for newly redesignated part 233
continues to read as follows:
Authority: 8 U.S.C. 1103, 1228; 8 CFR part 2.
79. Newly redesignated Sec. 233.1 is revised to read as follows:
Sec. 233.1 Contracts.
The contracts with transportation lines referred to in section
233(c) of the Act may be entered into by the Executive Associate
Commissioner for Programs, or by an immigration officer designated by
the Executive Associate Commissioner for Programs on behalf of the
government and shall be documented on Form I-420. The contracts with
transportation lines referred to in section 233(a) of the Act shall be
made by the Commissioner on behalf of the government and shall be
documented on Form I-426. The contracts with transportation lines
desiring their passengers to be preinspected at places outside the
United States shall be made by the Commissioner on behalf of the
government and shall be documented on Form I-425; except that contracts
for irregularly operated charter flights may be entered into by the
Associate Commissioner for Examinations or an immigration officer
designated by the Executive Associate Commissioner for Programs and
having jurisdiction over the location where the inspection will take
place.
80. In newly redesignated Sec. 233.3, paragraph (b) is revised to
read as follows:
Sec. 233.3 Aliens in immediate and continuous transit.
* * * * *
(b) Signatory lines. A list of currently effective Form I-426
agreements is maintained by the Service's Headquarters Office of
Inspections and is available upon written request.
81. Newly redesignated Sec. 233.4 is revised to read as follows:
Sec. 233.4 Preinspection outside the United States.
(a) Form I-425 agreements. A transportation line bringing
applicants for admission to the United States through preinspection
sites outside the United States shall enter into an agreement on Form
I-425. Such an agreement shall be negotiated directly by the Service's
Headquarters Office of Inspections and the head office of the
transportation line.
(b) Signatory lines. A list of transportation lines with currently
valid transportation agreements on Form I-425 is maintained by the
Service's Headquarters Office of Inspections and is available upon
written request.
82. Newly redesignated Sec. 233.5 is revised to read as follows:
Sec. 233.5 Aliens entering Guam pursuant to section 14 of Public Law
99-396, ``Omnibus Territories Act.''
A transportation line bringing aliens to Guam under the visa waiver
provisions of Sec. 212.1(e) of this chapter shall enter into an
agreement on Form I-760. Such agreements shall be negotiated directly
by the Service's Headquarters and head offices of the transportation
lines.
[[Page 477]]
PART 234--DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY
CIVIL AIRCRAFT
83. The heading for newly redesignated part 234 is revised as set
forth above.
84. The authority citation for newly redesignated part 234 is
revised to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
Sec. 234.3 [Amended]
85. Newly redesignated Sec. 234.3 is amended by removing the last
sentence.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
86. The authority citation for part 235 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
87. Section 235.1 is revised to read as follows:
Sec. 235.1 Scope of examination.
(a) General. Application to lawfully enter the United States shall
be made in person to an immigration officer at a U.S. port-of-entry
when the port is open for inspection, or as otherwise designated in
this section.
(b) U.S. citizens. A person claiming U.S. citizenship must
establish that fact to the examining officer's satisfaction and must
present a U.S. passport if such passport is required under the
provisions of 22 CFR part 53. If such applicant for admission fails to
satisfy the examining immigration officer that he or she is a U.S.
citizen, he or she shall thereafter be inspected as an alien.
(c) Alien members of United States Armed Forces and members of a
force of a NATO country. Any alien member of the United States Armed
Forces who is in the uniform of, or bears documents identifying him or
her as a member of, such Armed Forces, and who is coming to or
departing from the United States under official orders or permit of
such Armed Forces is not subject to the removal provisions of the Act.
A member of the force of a NATO country signatory to Article III of the
Status of Forces Agreement seeking to enter the United States under
official orders is exempt from the control provision of the Act. Any
alien who is a member of either of the foregoing classes may, upon
request, be inspected and his or her entry as an alien may be recorded.
If the alien does not appear to the examining immigration officer to be
clearly and beyond a doubt entitled to enter the United States under
the provisions of the Act, the alien shall be so informed and his or
her entry shall not be recorded.
(d) Alien applicants for admission. (1) Each alien seeking
admission at a United States port-of-entry shall present whatever
documents are required and shall establish to the satisfaction of the
immigration officer that he or she is not subject to removal under the
immigration laws, Executive Orders, or Presidential Proclamations and
is entitled under all of the applicable provisions of the immigration
laws and this chapter to enter the United States. A person claiming to
have been lawfully admitted for permanent residence must establish that
fact to the satisfaction of the inspecting immigration officer and must
present proper documents in accordance with Sec. 211.1 of this chapter.
(2) An alien present in the United States who has not been admitted
or paroled or an alien who seeks entry at other than an open,
designated port-of-entry, except as otherwise permitted in this
section, is subject to the provisions of section 212(a) of the Act and
to removal under section 235(b) or 240 of the Act.
(3) An alien who is brought to the United States, whether or not to
a designated port-of-entry and regardless of the means of
transportation, after having been interdicted in international or
United States waters, is considered an applicant for admission and
shall be examined under section 235(b) of the Act.
(4) An alien stowaway is not an applicant for admission and may not
be admitted to the United States. A stowaway shall be removed from the
United States under section 235(a)(2) of the Act. The provisions of
section 240 of the Act are not applicable to stowaways, nor is the
stowaway entitled to further hearing or review of the removal, except
that an alien stowaway who indicates an intention to apply for asylum
shall be referred to an asylum officer for a determination of credible
fear of persecution in accordance with section 235(b)(1)(B) of the Act
and Sec. 208.30 of this chapter. An alien stowaway who is determined to
have a credible fear of persecution shall have his or her asylum
application adjudicated in accordance with Sec. 208.2(b)(2) of this
chapter. Nothing in this section shall be construed to require
expedited removal proceedings in accordance with section 235(b)(1) of
the Act. A stowaway who absconds either prior to inspection by an
immigration officer or after being ordered removed as a stowaway
pursuant to section 235(a)(2) of the Act is not entitled to removal
proceedings under section 240 of the Act and shall be removed under
section 235(a)(2) of the Act as if encountered upon arrival. A stowaway
who has been removed pursuant to section 235(a)(2) of the Act and this
section shall be considered to have been formally removed from the
United States for all purposes under the Act.
(e) U.S. citizens, lawful permanent residents of the United States,
Canadian nationals, and other residents of Canada having a common
nationality with Canadians, entering the United States by small craft.
Upon being inspected by an immigration officer and found eligible for
admission as a citizen of the United States, or found eligible for
admission as a lawful permanent resident of the United States, or in
the case of a Canadian national or other resident of Canada having a
common nationality with Canadians being found eligible for admission as
a temporary visitor for pleasure, a person who desires to enter the
United States from Canada in a small pleasure craft of less than 5 net
tons without merchandise may be issued, upon application and payment of
a fee prescribed under Sec. 103.7(b)(1) of this chapter, Form I-68,
Canadian Border Boat Landing Card, and may thereafter enter the United
States along with the immediate shore area of the United States on the
body of water designated on the Form I-68 from time to time for the
duration of that navigation season without further inspection. In the
case of a Canadian national or other resident of Canada having a common
nationality with Canadians, the Form I-68 shall be valid only for the
purpose of visits not to exceed 72 hours and only if the alien will
remain in nearby shopping areas, nearby residential neighborhoods, or
other similar areas adjacent to the immediate shore area of the United
States. If the bearer of Form I-68 seeks to enter the United States by
means other than small craft of less than 5 net tons without
merchandise, or if he or she seeks to enter the United States for other
purposes, or if he or she is an alien, other than a lawful permanent
resident alien of the United States, and intends to proceed beyond an
area adjacent to the immediate shore area of the United States, or
remains in the United States longer than 72 hours, he or she must apply
for admission at a United States port of entry.
(f) Form I-94, Arrival Departure Record. (1) Unless otherwise
exempted, each arriving nonimmigrant who is admitted to the United
States shall be issued, upon payment of a fee prescribed in
Sec. 103.7(b)(1) of this chapter for land border admissions, a Form I-
94 as evidence of the terms of
[[Page 478]]
admission. A Form I-94 issued at a land border port-of-entry shall be
considered issued for multiple entries unless specifically annotated
for a limited number of entries. A Form I-94 issued at other than a
land border port-of-entry, unless issued for multiple entries, must be
surrendered upon departure from the United States in accordance with
the instructions on the form. Form I-94 is not required by:
(i) Any nonimmigrant alien described in Sec. 212.1(a) of this
chapter and 22 CFR 41.33 who is admitted as a visitor for business or
pleasure or admitted to proceed in direct transit through the United
States;
(ii) Any nonimmigrant alien residing in the British Virgin Islands
who was admitted only to the U.S. Virgin Islands as a visitor for
business or pleasure under Sec. 212.1(b) of this chapter;
(iii) Any Mexican national in possession of a valid nonresident
alien Mexican border crossing card, or a valid Mexican passport and a
multiple-entry nonimmigrant visa issued under section 101(a)(15)(B) of
the Act, who is admitted as a nonimmigrant visitor at a Mexican border
port of entry for a period not to exceed 72 hours to visit within 25
miles of the border;
(iv) Bearers of Mexican diplomatic or official passports described
in Sec. 212.1(c-1) of this chapter.
(2) Paroled aliens. Any alien paroled into the United States under
section 212(d)(5) of the Act, including any alien crewmember, shall be
issued a completely executed Form I-94, endorsed with the parole stamp.
88. Section 235.2 is revised to read as follows:
Sec. 235.2 Deferred inspection.
(a) A district director may, in his or her discretion, defer the
inspection of any vessel or aircraft, or of any alien, to another
Service office or port-of-entry. Any alien coming to a United States
port from a foreign port, from an outlying possession of the United
States, from Guam, Puerto Rico, or the Virgin Islands of the United
States, or from another port of the United States at which examination
under this part was deferred, shall be regarded as an applicant for
admission at that onward port.
(b) An examining immigration officer may defer further examination
and refer the alien's case to the district director having jurisdiction
over the place where the alien is seeking admission, or over the place
of the alien's residence or destination in the United States, if the
examining immigration officer has reason to believe that the alien can
overcome a finding of inadmissibility by:
(1) Posting a bond under section 213 of the Act;
(2) Seeking and obtaining a waiver under section 211 or 212(d)(3)
or (4) of the Act; or
(3) Presenting additional evidence of admissibility not available
at the time and place of the initial examination.
(c) Such deferral shall be accomplished pursuant to the provisions
of section 212(d)(5) of the Act for the period of time necessary to
complete the deferred inspection.
(d) Refusal of a district director to authorize admission under
section 213 of the Act, or to grant an application for the benefits of
section 211 or section 212(d)(3) or (4) of the Act, shall be without
prejudice to the renewal of such application or the authorizing of such
admission by the immigration judge without additional fee.
(e) Whenever an alien on arrival is found or believed to be
suffering from a disability that renders it impractical to proceed with
the examination under the Act, the examination of such alien, members
of his or her family concerning whose admissibility it is necessary to
have such alien testify, and any accompanying aliens whose protection
or guardianship will be required should such alien be found
inadmissible shall be deferred for such time and under such conditions
as the district director in whose district the port is located imposes.
89. Section 235.3 is revised to read as follows:
Sec. 235.3 Inadmissible aliens and expedited removal.
(a) Detention prior to inspection. All persons arriving at a port-
of-entry in the United States by vessel or aircraft shall be detained
aboard the vessel or at the airport of arrival by the owner, agent,
master, commanding officer, person in charge, purser, or consignee of
such vessel or aircraft until admitted or otherwise permitted to land
by an officer of the Service. Notice or order to detain shall not be
required. The owner, agent, master, commanding officer, person in
charge, purser, or consignee of such vessel or aircraft shall deliver
every alien requiring examination to an immigration officer for
inspection or to a medical officer for examination. The Service will
not be liable for any expenses related to such detention or
presentation or for any expenses of a passenger who has not been
presented for inspection and for whom a determination has not been made
concerning admissibility by a Service officer.
(b) Expedited removal. (1) Determination of inadmissibility. An
alien who is arriving in the United States or other alien as designated
pursuant to paragraph (b)(2)(ii) of this section who is determined to
be inadmissible under section 212(a)(6)(C) or 212(a)(7) of the Act
(except an alien for whom documentary requirements are waived under
Sec. 211.1(b)(3) or Sec. 212.1 of this chapter), shall be ordered
removed from the United States in accordance with section 235(b)(1) of
the Act. The examining immigration officer shall serve the alien with
Form I-860, Notice and Order of Expedited Removal. Except as otherwise
provided in this section, such alien is not entitled to a hearing
before an immigration judge in proceedings conducted pursuant to
section 240 of the Act, or to an appeal of the expedited removal order
by the Board of Immigration appeals. An alien whose inadmissibility is
being considered under this section or who has been ordered removed
pursuant to this section shall be detained pending determination and
removal, except that parole of such alien, in accordance with section
212(d)(5) of the Act, may be permitted only when the Attorney General
determines, in the exercise of discretion, that parole is required to
meet a medical emergency or is necessary for a legitimate law
enforcement objective.
(2) Applicability. The expedited removal provisions shall apply to
the following classes of aliens who are determined to be inadmissible
under section 212(a)(6)(C) or (7) of the Act:
(i) Arriving aliens, as defined in Sec. 1.1(q) of this chapter,
except for citizens of Cuba arriving at a United States port-of-entry
by aircraft;
(ii) As specifically designated by the Commissioner, aliens who
arrive in, attempt to enter, or have entered the United States without
having been admitted or paroled following inspection by an immigration
officer at a designated port-of-entry, and who have not established to
the satisfaction of the immigration officer that they have been
physically present in the United States continuously for the 2-year
period immediately prior to the date of determination of
inadmissibility. The Commissioner shall have the sole discretion to
apply the provisions of section 235(b)(1) of the Act, at any time, to
any class of aliens described in this section. The Commissioner's
designation shall become effective upon publication of a notice in the
Federal Register. However, if the Commissioner determines, in the
exercise of discretion, that the delay caused by publication would
adversely affect the interests of
[[Page 479]]
the United States or the effective enforcement of the immigration laws,
the Commissioner's designation shall become effective immediately upon
issuance, and shall be published in the Federal Register as soon as
practicable thereafter. When these provisions are in effect for aliens
who enter without inspection, the burden of proof rests with the alien
to affirmatively show that he or she has the required continuous
physical presence in the United States. Any absence from the United
States shall serve to break the period of continuous physical presence.
An alien who was not inspected and admitted or paroled into the United
States but who establishes that he or she has been continuously
physically present in the United States for the 2-year period
immediately prior to the date of determination of inadmissibility shall
be detained in accordance with section 235(b)(2) of the Act for a
proceeding under section 240 of the Act.
(3) Additional charges of inadmissibility. In the expedited removal
process, the Service may not charge an alien with any additional
grounds of inadmissibility other than section 212(a)(6)(C) or 212(a)(7)
of the Act. if an alien appears to be inadmissible under other grounds
contained in section 212(a) of the Act, and if the Service wishes to
pursue such additional grounds of inadmissibility, the alien shall be
detained and referred for a removal hearing before an immigration judge
pursuant to sections 235(b)(2) and 240 of the Act for inquiry into all
charges. Once the alien is in removal proceedings under section 240 of
the Act, the Service is not precluded from lodging additional charges
against the alien. Nothing in this paragraph shall preclude the Service
from pursuing such additional grounds of inadmissibility against the
alien in any subsequent attempt to reenter the United States, provided
the additional grounds of inadmissibility still exist.
(4) Claim of asylum or fear of persecution. If an alien subject to
the expedited removal provisions indicates an intention to apply for
asylum, a fear of persecution, or a fear of return to his or her
country, the inspecting officer shall, before proceeding further with
the case, detain the alien and refer him or her for an interview by an
asylum officer in accordance with Sec. 208.30 of this chapter to
determine if the alien has a credible fear of persecution. The
referring officer shall provide information to the alien concerning the
nature and purpose of the credible fear interview and shall advise the
alien that he or she may, prior to the interview, consult with a person
or person of his or her choosing, at no expense to the Government and
without unreasonably delaying the process. Pending the credible fear
determination, the alien shall be detained. Parole of such alien in
accordance with section 212(d)(5) of the Act may be permitted only when
the Attorney General determines, in the exercise of discretion, that
parole is required to meet a medical emergency or is necessary for a
legitimate law enforcement objective.
(5) Claim to lawful permanent resident, refugee, or asylee status.
(i) Verification of status. If an applicant for admission who is
subject to expedited removal pursuant to section 235(b)(1) of the Act
claims to have been lawfully admitted for permanent residence, admitted
as a refugee under section 207 of the Act, or granted asylum under
section 208 of the Act, the immigration officer shall attempt to verify
the alien's claim. Such verification shall include a check of all
available Service data systems and any other means available to the
officer. An alien whose claim to lawful permanent resident, refugee, or
asylee status cannot be verified will be advised of the penalties for
perjury, and will be placed under oath or allowed to make a declaration
as permitted under 28 U.S.C. 1746, concerning his or her lawful
admission for permanent residence, admission as a refugee under section
207 of the Act, or grant of asylum status under section 208 of the Act.
Whenever practicable, a written statement shall be taken from the
alien. The immigration officer shall issue an expedited order of
removal under section 235(b)(1)(A)(i) of the Act and refer the alien to
the immigration judge for review of the order in accordance with
paragraph (b)(5)(iv) of this section and Sec. 235.6(a)(2)(ii).
(ii) Claimed lawful permanent residents. If the claim to lawful
permanent resident status is verified, and such status has not been
terminated in exclusion, deportation, or removal proceedings, the
examining immigration officer shall not order the alien removed
pursuant to section 235(b)(1) of the Act. The examining immigration
officer will determine in accordance with section 101(a)(13)(C) of the
Act whether the alien is considered to be making an application for
admission. If the alien is determined to be seeking admission and the
alien is otherwise admissible, except that he or she is not in
possession of the required documentation, a discretionary waiver of
documentary requirements may be considered in accordance with section
211(b) of the Act and Sec. 211.1(b)(3) of this chapter or the alien's
inspection may be deferred to an onward office for presentation of the
required documents. If the alien appears to be inadmissible, the
immigration officer may initiate removal proceedings against the alien
under section 240 of the Act.
(iii) Claimed refugees and asylees. If a check of Service records
or other means indicates that the alien has been granted refugee status
or asylee status, and such status has not been terminated in
deportation, exclusion, or removal proceedings, the immigration officer
shall not order the alien removed pursuant to section 235(b)(1) of the
Act. If the alien is not in possession of a valid, unexpired refugee
travel document, the examining immigration officer may accept an
application for a refugee travel document in accordance with
Sec. 223.2(b)(2)(ii) of this chapter. If accepted, the immigration
officer shall readmit the refugee or asylee in accordance with
Sec. 223.3(d)(2)(i) of this chapter. If the alien is determined not to
be eligible to file an application for a refugee travel document the
immigration officer may initiate removal proceedings against the alien
under section 240 of this Act.
(iv) Review of order for claimed lawful permanent residents,
refugees, or asylees. When an alien whose status has not been verified
but who is claiming under oath or under penalty or perjury to be a
lawful permanent resident, refugee, or asylee is ordered removed
pursuant to section 235(b)(1) of the Act, the case will be referred to
an immigration judge for review of the expedited removal order under
section 235(b)(1)(C) of the Act and Sec. 235.6(a)(2)(ii). If the
immigration judge determines that the alien has never been admitted as
a lawful permanent resident or as a refugee, or granted asylum status,
the order issued by the immigration officer will be affirmed and the
Service will remove the alien. There is no appeal from the decision of
the immigration judge. If the immigration judge determines that the
alien was once so admitted as a lawful permanent resident or as a
refugee, or was granted asylum status, and such status has not been
terminated by final administrative action, the immigration judge will
terminate proceedings and vacate the expedited removal order. The
Service may initiate removal proceedings against such an alien in
proceedings under section 240 of the Act. During removal proceedings,
the immigration judge may consider any waivers, exceptions, or requests
for relief for which the alien is eligible.
(6) Opportunity for the alien to establish that he or she was
admitted or paroled into the United States. If the Commissioner
determines that the
[[Page 480]]
expedited removal provisions of section 235(b)(1) of the Act shall
apply to any or all aliens described in paragraph (b)(2)(ii) of this
section, such alien will be given a reasonable opportunity to establish
to the satisfaction of the examining immigration officer that he or she
was admitted or paroled into the United States following inspection at
a port-of-entry. The alien will be allowed to present evidence or
provide sufficient information to support the claim. Such evidence may
consist of documentation in the possession of the alien, the Service,
or a third party. The examining immigration officer will consider all
such evidence and information, make further inquiry if necessary, and
will attempt to verify the alien's status through a check of all
available Service data systems. The burden rests with the alien to
satisfy the examining immigration officer of the claim of lawful
admission or parole. If the alien establishes that he or she was
lawfully admitted or paroled, the case will be examined to determine if
grounds of deportability under section 237(a) of the Act are
applicable, or if paroled, whether such parole has been, or should be,
terminated, and whether the alien is inadmissible under section 212(a)
of the Act. An alien who cannot satisfy the examining officer that he
or she was lawfully admitted or paroled will be ordered removed
pursuant to section 235(b)(1) of the Act.
(7) Review of expedited removal orders. Any removal order entered
by an examining immigration officer pursuant to section 235(b)(1) of
the Act must be reviewed and approved by the appropriate supervisor
before the order is considered final. Such supervisory review shall not
be delegated below the level of the second line supervisor, or a person
acting in that capacity. The supervisory review and approval of an
expedited removal order for an alien described in section
235(b)(1)(A)(iii) of the Act must include a review of any claim of
lawful admission or parole and any evidence or information presented to
support such a claim, prior to approval of the order. In such cases,
the supervisor may request additional information from any source and
may require further interview of the alien.
(8) Removal procedures relating to expedited removal. An alien
ordered removed pursuant to section 235(b)(1) of the Act shall be
removed from the United States in accordance with section 241(c) of the
Act and 8 CFR part 241.
(9) Waivers of documentary requirements. Nothing in this section
limits the discretionary authority of the Attorney General, including
authority under sections 211(b) or 212(d) of the Act, to waive the
documentary requirements for arriving aliens.
(10) Applicant for admission under section 217 of the Act. The
provisions of Sec. 235.3(b) do not apply to an applicant for admission
under section 217 of the Act.
(c) Other inadmissible aliens. Any alien applicant for admission,
as included in sections 101(a)(13) and 235(a)(1) of the Act and
Sec. 235.1(d) of this chapter, who appears to the inspecting officer to
be inadmissible, but who does not fall within paragraph (b) of this
section, may be detained, paroled, or paroled for deferred inspection
by the inspecting officer. In determining whether or not an alien shall
be detained, paroled, or paroled for deferred inspection, the
inspecting officer shall consider the likelihood that the alien will
abscond or pose a security risk.
(d) Service custody. The Service will assume custody of any alien
subject to detention under paragraph (b) or (c) of this section. In its
discretion, the Service may require any alien who appears inadmissible
and who arrives at a land border port-of-entry from Canada or Mexico,
to remain in that country while awaiting a removal hearing. Such alien
shall be considered detained for a proceeding within the meaning of
section 235(b) of the Act and may be ordered removed in absentia by an
immigration judge if the alien fails to appear for the hearing.
(e) Detention in non-Service facility. Whenever an alien is taken
into Service custody and detained at a facility other than at a Service
Processing Center, the public or private entities contracted to perform
such service shall have been approved for such use by the Service's
Jail Inspection Program or shall be performing such service under
contract in compliance with the Standard Statement of Work for Contract
Detention Facilities. Both programs are administered by the Detention
and Deportation section having jurisdiction over the alien's place of
detention. Under no circumstances shall an alien be detained in
facilities not meeting the four mandatory criteria for usage. These
are:
(1) 24-Hour supervision,
(2) Conformance with safety and emergency codes,
(3) Food Service, and
(4) Availability of emergency medical care.
(f) Privilege of communication. The mandatory notification
requirements of consular and diplomatic officers pursuant to
Sec. 236.1(e) of this chapter apply when an inadmissible alien is
detained for removal proceedings.
90. Section 235.4 is revised to read as follows:
Sec. 235.4 Withdrawal of application for admission.
(a) The Attorney General may, in his or her discretion, permit any
alien applicant for admission to withdraw his or her application for
admission in lieu of removal proceedings under section 240 of the Act
or expedited removal under section 235(b)(1) of the Act. The alien's
decision to withdraw his or her application for admission must be made
voluntarily, but nothing in this section shall be construed as to give
an alien the right to withdraw his or her application for admission.
Permission to withdraw an application for admission should not normally
be granted unless the alien intends and is able to depart the United
States immediately. An alien permitted to withdraw his or her
application for admission shall normally remain in carrier or Service
custody pending departure, unless the district director determines that
parole of the alien is warranted in accordance with Sec. 212.5(a) of
this chapter.
(b) An immigration judge may allow only an arriving alien to
withdraw an application for admission. Once the issue of
inadmissibility or deportability has been resolved, permission to
withdraw an application for admission should ordinarily be granted only
with the concurrence of the Service. An immigration judge shall not
allow an alien to withdraw an application for admission unless the
alien, in addition to demonstrating that he or she possesses both the
intent and the means to depart immediately from the United States,
establishes that factors directly relating to the issue of
inadmissibility indicate that the granting of the withdrawal would be
in the interest of justice. In addition, during the pendency of an
appeal from the order of removal, permission to withdraw an application
for admission must be obtained from the immigration judge or the Board.
91. Section 235.5 is revised to read as follows:
Sec. 235.5 Preinspection.
(a) In United States territories and possessions. In the case of
any aircraft proceeding from Guam, Puerto Rico, or the United States
Virgin Islands destined directly and without touching at a foreign port
or place, to any other of such places, or to one of the States of the
United States or the District of Columbia, the examination of the
passengers and crew required by the Act
[[Page 481]]
may be made prior to the departure of the aircraft, and in such event,
final determination of admissibility shall be made immediately prior to
such departure. The examination shall be conducted in accordance with
sections 232, 235, and 240 of the Act and 8 CFR parts 235 and 240. If
it appears to the examining immigration officer that any person in the
United States being examined under this section is prima facie
removable from the United States, further action with respect to his or
her examination shall be deferred and further proceedings regarding
removability conducted as provided in section 240 of the Act and 8 CFR
part 240. When the foregoing inspection procedure is applied to any
aircraft, persons examined and found admissible shall be placed aboard
the aircraft, or kept at the airport separate and apart from the
general public until they are permitted to board the aircraft. No other
person shall be permitted to depart on such aircraft until and unless
he or she is found to be admissible as provided in this section.
(b) In foreign territory. In the case of any aircraft, vessel, or
train proceeding directly, without stopping, from a port or place in
foreign territory to a port-of-entry in the United States, the
examination and inspection of passengers and crew required by the Act
and final determination of admissibility may be made prior to such
departure at the port or place in the foreign territory and shall have
the same effect under the Act as though made at the destined port-of-
entry in the United States.
92. Section 235.6 is revised to read as follows:
Sec. 235.6 Referral to immigration judge.
(a) Notice. (1) Referral by Form I-862, Notice to Appear. An
immigration officer or asylum officer will sign and deliver a Form I-
862 to an alien in the following cases:
(i) If, in accordance with the provisions of section 235(b)(2)(A)
of the Act, the examining immigration officer detains an alien for a
proceeding before an immigration judge under section 240 of the Act; or
(ii) If, in accordance with section 235(b)(1)(B)(ii) of the Act, an
asylum officer determines that an alien is expedited removal
proceedings has a credible fear of persecution and refers the case to
the immigration judge for consideration of the application for asylum.
(iii) If, in accordance with section 235(b)(1)(B)(iii)(III) of the
Act, the immigration judge determines that an alien in expedited
removal proceedings has a credible fear of persecution and vacates the
expedited removal order issued by the asylum officer pursuant to
section 235(b)(1)(B)(iii) of the Act.
(iv) If an immigration officer verifies that an alien subject to
expedited removal under section 235(b)(1) of the Act has been admitted
as a lawful permanent resident refugee, or asylee, or upon review
pursuant to Sec. 235.3(b)(5)(iv) an immigration judge determines that
the alien was once so admitted, provided that such status has not been
terminated by final administrative action, and the Service initiates
removal proceedings against the alien under section 240 of the Act.
(2) Referral by Form I-863, Notice of Referral to Immigration
Judge. An immigration officer will sign and deliver a Form I-863 to an
alien in the following cases:
(i) If, in accordance with section 235(b)(1)(B)(iii)(III) of the
Act, an asylum officer determines that an alien does not have a
credible fear of persecution, and the alien requests a review of that
determination by an immigration judge; or
(ii) If, in accordance with section 235(b)(1)(C) of the Act, an
immigration officer refers an expedited removal order entered on an
alien claiming to be a lawful permanent resident, refugee, or asylee
for whom the officer could not verify such status to an immigration
judge for review of the order.
(iii) If an immigration officer refers an applicant described in
Sec. 208.2(b)(1) of this chapter to an immigration judge for an asylum
hearing under Sec. 208.2(b)(2) of this chapter.
(b) Certification for mental condition; medical appeal. An alien
certified under sections 212(a)(1) and 232(b) of the Act shall be
advised by the examining immigration officer that he or she may appeal
to a board of medical examiners of the United States Public Health
Service pursuant to section 232 of the Act. If such appeal is taken,
the district director shall arrange for the convening of the medical
board.
Sec. 235.7 [Removed]
93. Section 235.7 is removed.
Sec. 235.13 [Redesignated as Sec. 235.7]
94. Section 235.13 is redesignated as Sec. 235.7.
95. Section 235.8 is revised to read as follows:
Sec. 235.8 Inadmissibility on security and related grounds.
(a) Report. When an immigration officer or an immigration judge
suspects that an arriving alien appears to be inadmissible under
section 212(a)(3)(A) (other than clause (ii), (B), or (C) of the Act,
the immigration officer or immigration judge shall order the alien
removed and report the action promptly to the district director who has
administrative jurisdiction over the place where the alien has arrived
or where the hearing is being held. The immigration officer shall, if
possible, take a brief sworn question-and-answer statement from the
alien, and the alien shall be notified by personal service of Form I-
147, Notice of Temporary Inadmissibility, of the action taken and the
right to submit a written statement and additional information for
consideration by the Attorney General. The district director shall
forward the report to the regional director for further action as
provided in paragraph (b) of this section.
(b) Action by regional director. (1) In accordance with section
235(c)(2)(B) of the Act, the regional director may deny any further
inquiry or hearing by an immigration judge and order the alien removed
by personal service of Form I-148, Notice of Permanent Inadmissibility,
or issue any other order disposing of the case that the regional
director considers appropriate.
(2) If the regional director concludes that the case does not meet
the criteria contained in section 235(c)(2)(B) of the Act, the regional
director may direct that:
(i) An immigration officer shall conduct a further examination of
the alien, concerning the alien's admissibility; or,
(ii) The alien's case be referred to an immigration judge for a
hearing, or for the continuation of any prior hearing.
(3) The regional director's decision shall be in writing and shall
be signed by the regional director. Unless the written decision
contains confidential information, the disclosure of which would be
prejudicial to the public interest, safety, or security of the United
States, the written decision shall be served on the alien. If the
written decision contains such confidential information, the alien
shall be served with a separate written order showing the disposition
of the case, but with the confidential information deleted.
(c) Finality of decision. The regional director's decision under
this section is final when it is served upon the alien in accordance
with paragraph (b)(3) of this section. There is no administrative
appeal from the regional director's decision.
(d) Hearing by immigration judge. If the regional director directs
that an alien subject to removal under this section be given a hearing
or further hearing before an immigration judge, the hearing and all
further proceedings in
[[Page 482]]
the matter shall be conducted in accordance with the provisions of
section 240 of the Act and other applicable sections of the Act to the
same extent as though the alien had been referred to an immigration
judge by the examining immigration officer. In a case where the
immigration judge ordered the alien removed pursuant to paragraph (a)
of this section, the Service shall refer the case back to the
immigration judge and proceedings shall be automatically reopened upon
receipt of the notice of referral. If confidential information, not
previously considered in the matter, is presented supporting the
inadmissibility of the alien under section 212(a)(3)(A) (other than
clause (ii)), (B), or (C) of the Act, the disclosure of which, in the
discretion of the immigration judge, may be prejudicial to the public
interest, safety, or security, the immigration judge may again order
the alien removed under the authority of section 235(c) of the Act and
further action shall be taken as provided in this section.
(e) Nonapplicability. The provisions of this section shall apply
only to arriving aliens, as defined in Sec. 1.1(q) of this chapter.
Aliens present in the United States who have not been admitted or
paroled may be subject to proceedings under Title V of the Act.
Sec. 235.9 [Removed]
96. Section 235.9 is removed.
Sec. 235.12 [Redesignated as Sec. 235.9 and revised]
97. Section 235.12 is redesignated as Sec. 235.9 and is revised to
read as follows:
Sec. 235.9 Northern Marianas identification card.
During the two-year period that ended July 1, 1990, the Service
issued Northern Marianas Identification Cards to aliens who acquired
United States citizenship when the Covenant to Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States entered into force on November 3, 1986. These cards remain valid
as evidence of United States citizenship. Although the Service no
longer issues these cards, a United States citizen to whom a card was
issued may file Form I-777, Application for Issuance or Replacement of
Northern Marianas Card, to obtain replacement of a lost, stolen, or
mutilated Northern Marianas Identification Card.
98. Section 235.10 is revised to read as follows:
Sec. 235.10 U.S. Citizen Identification Card.
(a) General. Form I-197, U.S. Citizen Identification Card, is no
longer issued by the Service but valid existing cards will continue to
be acceptable documentation of U.S. citizenship. Possession of the
identification card is not mandatory for any purpose. A U.S. Citizen
Identification Card remains the property of the United States. Because
the identification card is no longer issued, there are no provisions
for replacements cards.
(b) Surrender and voidance. (1) Institution of proceeding under
section 240 or 342 of the Act. A U.S. Citizen Identification Card must
be surrendered provisionally to a Service office upon notification by
the district director that a proceeding under section 240 or 342 of the
Act is being instituted against the person to whom the card was issued.
The card shall be returned to the person if the final order in the
proceeding does not result in voiding the card under this paragraph. A
U.S. Citizen Identification Card is automatically void if the person to
whom it was issued is determined to be an alien in a proceeding
conducted under section 240 of the Act, or if a certificate, document,
or record relating to that person is canceled under section 342 of the
Act.
(2) Investigation of validity of identification card. A U.S.
Citizen Identification Card must be surrendered provisionally upon
notification by a district director that the validity of the card is
being investigated. The card shall be returned to the person who
surrendered it if the investigation does not result in a determination
adverse to his or her claim to be a United States citizen. When an
investigation results in a tentative determination adverse to the
applicant's claim to be a United States citizen, the applicant shall be
notified by certified mail directed to his or her last known address.
The notification shall inform the applicant of the basis for the
determination and of the intention of the district director to declare
the card void unless within 30 days the applicant objects and demands
an opportunity to see and rebut the adverse evidence. Any rebuttal,
explanation, or evidence presented by the applicant must be included in
the record of proceeding. The determination whether the applicant is a
United States citizen must be based on the entire record and the
applicant shall be notified of the determination. If it is determined
that the applicant is not a United States citizen, the applicant shall
be notified of the reasons, and the card deemed void. There is no
appeal from the district director's decision.
(3) Admission of alienage. A U.S. Citizen Identification Card is
void if the person to whom it was issued admits in a statement signed
before an immigration officer that he or she is an alien and consents
to the voidance of the card. Upon signing the statement the card must
be surrendered to the immigration officer.
(4) Surrender of void card. A void U.S. Citizen Identification Card
which has not been returned to the Service must be surrendered without
delay to an immigration officer or to the issuing office of the
Service.
(c) U.S. Citizen Identification Card previously issued on Form I-
179. A valid Form I-179, U.S. Citizen Identification Card, continues to
be valid subject to the provisions of this section.
99. Section 235.11 is revised to read as follows:
Sec. 235.11 Admission of conditional permanent residents.
(a) General. (1) Conditional residence based on family
relationship. An alien seeking admission to the United States with an
immigrant visa as the spouse or son or daughter of a United States
citizen or lawful permanent resident shall be examined to determine
whether the conditions of section 216 of the Act apply. If so, the
alien shall be admitted conditionally for a period of 2 years. At the
time of admission, the alien shall be notified that the alien and his
or her petitioning spouse must file a Form I-751, Petition to Remove
the Conditions on Residence, within the 90-day period immediately
preceding the second anniversary of the alien's admission for permanent
residence.
(2) Conditional residence based on entrepreneurship. An alien
seeking admission to the United States with an immigrant visa as an
alien entrepreneur (as defined in section 216A(f)(1) of the Act) or the
spouse or unmarried minor child of an alien entrepreneur shall be
admitted conditionally for a period of 2 years. At the time of
admission, the alien shall be notified that the principal alien
(entrepreneur) must file a Form I-829, Petition by Entrepreneur to
Remove Conditions, within the 90-day period immediately preceding the
second anniversary of the alien's admission for permanent residence.
(b) Correction of endorsement on immigrant visa. If the alien is
subject to the provisions of section 216 of the Act, but the
classification endorsed on the immigrant visa does not so indicate, the
endorsement shall be corrected and the alien shall be admitted as a
lawful permanent resident on a conditional basis, if otherwise
admissible. Conversely, if the alien is not subject to the provisions
of section 216 of the Act, but the visa classification endorsed on the
immigrant visa indicates that the
[[Page 483]]
alien is subject thereto (e.g., if the second anniversary of the
marriage upon which the immigrant visa is based occurred after the
issuance of the visa and prior to the alien's application for
admission) the endorsement on the visa shall be corrected and the alien
shall be admitted as a lawful permanent resident without conditions, if
otherwise admissible.
(c) Expired conditional permanent resident status. The lawful
permanent resident alien status of a conditional resident automatically
terminates if the conditional basis of such status is not removed by
the Service through approval of a Form I-751, Petition to Remove the
Conditions on Residence or, in the case of an alien entrepreneur (as
defined in section 216A(f)(1) of the Act), Form I-829, Petition by
Entrepreneur to Remove Conditions. Therefore, an alien who is seeking
admission as a returning resident subsequent to the second anniversary
of the date on which conditional residence was obtained (except as
provided in Sec. 211.1(b)(1) of this chapter) and whose conditional
basis of such residence has not been removed pursuant to section 216(c)
or 216A(c) of the Act, whichever is applicable, shall be placed under
removal proceedings. However, in a case where conditional residence was
based on a marriage, removal proceedings may be terminated and the
alien may be admitted as a returning resident if the required Form I-
751 is filed jointly, or by the alien alone (if appropriate), and
approved by the Service. In the case of an alien entrepreneur, removal
proceedings may be terminated and the alien admitted as a returning
resident if the required Form I-829 is filed by the alien entrepreneur
and approved by the Service.
100-101. Part 236 is revised to read as follows:
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
Subpart A--Detention of Aliens Prior to Order of Removal
Sec.
236.1 Apprehension, custody, and detention.
236.2 Confined aliens, incompetents, and minors.
236.3 Detention and release of juveniles.
236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
236.5 Fingerprints and photographs.
Subpart B--Family Unity Program
236.10 Description of program.
236.11 Definitions.
236.12 Eligibility.
236.13 Ineligible aliens.
236.14 Filing.
236.15 Voluntary departure and eligibility for employment.
236.16 Travel outside the United States.
236.17 Eligibility for Federal financial assistance programs.
236.18 Termination of Family Unity Program benefits.
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8
CFR part 2.
Subpart A--Detention of Aliens Prior to Order of Removal
Sec. 236.1 Apprehension, custody, and detention.
(a) Detainers. The issuance of a detainer under this section shall
be governed by the provisions of Sec. 287.7 of this chapter.
(b) Warrant of arrest. (1) In general. At the time of issuance of
the notice to appear, or at any time thereafter and up to the time
removal proceedings are completed, the respondent may be arrested and
taken into custody under the authority of Form I-200, Warrant of
Arrest. A warrant of arrest may be issued only by those immigration
officers listed in Sec. 287.5(e)(2) of this chapter and may be served
only by those immigration officers listed in Sec. 287.5(e)(3) of this
chapter.
(2) If, after the issuance of a warrant of arrest, a determination
is made not to serve it, any officer authorized to issue such warrant
may authorize its cancellation.
(c) Custody issues and release procedures. (1) After the expiration
of the Transition Period Custody Rules under Pub. L. 104-208, no alien
described in section 236(c)(1) of the Act shall be released from
custody during removal proceedings except pursuant to section 236(c)(2)
of the Act.
(2) Any officer authorized to issue a warrant of arrest may, in the
officer's discretion, release an alien not described in section
236(c)(1) of the Act, under the conditions at section 236 (a) (2) and
(3) of the Act; provided that the alien must demonstrate to the
satisfaction of the officer that such release would not pose a danger
to property or persons, and that the alien is likely to appear for any
future proceeding.
(3) When an alien who, having been arrested and taken into custody,
has been released, such release may be revoked at any time in the
discretion of the district director, acting district director, deputy
district director, assistant district director for investigations,
assistant district director for detention and deportation, or officer
in charge (except foreign), in which event the alien may be taken into
physical custody and detained. If detained, unless a breach has
occurred, any outstanding bond shall be revoked and canceled.
(4) The provisions of Sec. 103.6 of this chapter shall apply to any
bonds authorized. Subject to the provisions of this section, the
provisions of Sec. 3.19 of this chapter shall govern availability to
the respondent of recourse to other administrative authority for
release from custody.
(5) An immigration judge may not exercise authority provided in
this section and the review process described in paragraph (d) of this
section shall not apply with respect to:
(i) Inadmissible aliens in removal proceedings,
(ii) Arriving aliens, as described in Sec. 1.1(q) of this chapter,
including aliens paroled pursuant to section 212(d)(5) of the Act, in
removal proceedings,
(iii) Aliens described in section 237(a)(4) of the Act, or
(iv) After the expiration of section 303(b)(3) of Pub. L. 104-208,
aliens described in section 236(c)(1) of the Act.
(d) Appeals from custody decisions. (1) Application to immigration
judge. After an initial custody determination by the district director,
including the setting of a bond, the respondent may at any time before
an order under 8 CFR part 240 becomes final, request amelioration of
the conditions under which he or she may be released. Prior to such
final order, and except as otherwise provided in this chapter, the
immigration judge is authorized to exercise the authority in section
236 of the Act to detain the alien in custody, release the alien, and
determine the amount of bond, if any, under which the respondent may be
released, as provided in Sec. 3.19 of this chapter. If the alien has
been released from custody, an application for amelioration of the
terms of release must be filed within 7 days of release. Once a removal
order becomes administratively final, determinations regarding custody
and bond are made by the district director.
(2) Application to the district director. (i) After expiration of
the 7-day period in paragraph (d)(1) of this section, the respondent
may request review by the district director of the conditions of his or
her release.
(ii) After an order becomes administratively final, the respondent
may request review by the district director of the conditions of his or
her release.
(3) Appeal to the Board of Immigration Appeals. An appeal relating
to bond and custody determinations may be filed within 10 days of the
decision, to the Board of
[[Page 484]]
Immigration Appeals in the following circumstances:
(i) In accordance with Sec. 3.38 of this chapter, the alien or the
Service may appeal the decision of an immigration judge pursuant to
paragraph (d)(1) of this section.
(ii) The alien may appeal from the district director's decision
under paragraph (d)(2)(i) of this section.
(iii) The alien may appeal from the district director's decision
under paragraph (d)(2)(ii) of this section, except that no appeal shall
be allowed when the Service notifies the alien that it is ready to
execute an order of deportation and takes the alien into custody for
that purpose.
(4) Effect of filing an appeal. The filing of an appeal from a
determination of an immigration judge or district director under this
paragraph shall not operate to delay compliance with the order, nor
stay the administrative proceedings or removal.
(e) Privilege of communication. Every detained alien shall be
notified that he or she may communicate with the consular or diplomatic
officers of the country of his or her nationality in the United States.
Existing treaties with the countries listed below require immediate
communication with appropriate consular or diplomatic officers whenever
nationals of the following countries are detained in removal
proceedings, whether or not requested by the alien and even if the
alien requests that no communication be undertaken in his or her
behalf. When notifying consular or diplomatic officials, Service
officers shall not reveal the fact that any detained alien has applied
for asylum or withholding of removal.
Albania \1\
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\1\ Arrangements with these countries provide that U.S.
authorities shall notify responsible representatives within 72 hours
of the arrest or detention of one of their nationals.
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Antigua
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of) \2\
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\2\ When Taiwan nationals (who carry ``Republic of China''
passports) are detained, notification should be made to the nearest
office of the Taiwan Economic and Cultural Representative's Office,
the unofficial entity representing Taiwan's interests in the United
States.
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Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland
Romania
Russian Federation
St. Kitts/Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
South Korea
Tajikistan
Tanzania
Tonga
Trinidad/Tobago
Turkmenistan
Tuvalu
Ukraine
United Kingdom \3\
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\3\ British dependencies are also covered by this agreement.
They are: Anguilla, British Virgin Islands, Hong Kong, Bermuda,
Montserrat, and the Turks and Caicos Islands. Their residents carry
British passports.
---------------------------------------------------------------------------
U.S.S.R.\4\
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\4\ All U.S.S.R. successor states are covered by this agreement.
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan,
Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan.
---------------------------------------------------------------------------
Uzbekistan
Zambia
(f) Notification to Executive Office for Immigration Review of
change in custody status. The Service shall notify the Immigration
Court having administrative control over the Record of Proceeding of
any change in custody location or of release from, or subsequent taking
into, Service custody of a respondent/applicant pursuant to
Sec. 3.19(g) of this chapter.
Sec. 236.2 Confined aliens, incompetents, and minors.
(a) Service. If the respondent is confined, or if he or she is an
incompetent, or a minor under the age of 14, the notice to appear, and
the warrant of arrest, if issued, shall be served in the manner
prescribed in Sec. 239.1 of this chapter upon the person or persons
specified by Sec. 103.5a(c) of this chapter.
(b) Service custody and cost of maintenance. An alien confined
because of physical or mental disability in an institution or hospital
shall not be accepted into physical custody by the Service until an
order of removal has been entered and the Service is ready to remove
the alien. When such an alien is an inmate of a public or private
institution at the time of the commencement of the removal proceedings,
expenses for the maintenance of the alien shall not be incurred by the
Government until he or she is taken into physical custody by the
Service.
Sec. 236.3 Detention and release of juveniles.
(a) Juveniles. A juvenile is defined as an alien under the age of
18 years.
(b) Release. Juveniles for whom bond has been posted, for whom
parole has been authorized, or who have been ordered released on
recognizance, shall be released pursuant to the following guidelines:
(1) Juveniles shall be released, in order of preference, to:
(i) A parent;
(ii) Legal guardian; or
(iii) An adult relative (brother, sister, aunt, uncle, grandparent)
who is not presently in Service detention, unless a determination is
made that the detention of such juvenile is required to secure his or
her timely appearance before the Service or the Immigration Court or to
ensure the juvenile's safety or that of others. In cases where the
parent, legal guardian, or adult relative resides at a location distant
from where the juvenile is detained, he or she may secure release at a
Service office located near the parent, legal guardian, or adult
relative.
(2) If an individual specified in paragraphs (b)(1) (i) through
(iii) of this section cannot be located to accept custody of a
juvenile, and the juvenile has identified a parent, legal guardian, or
adult relative in Service detention, simultaneous release of the
juvenile and the parent, legal guardian, or adult relative shall be
evaluated on a discretionary case-by-case basis.
(3) In cases where the parent or legal guardian is in Service
detention or outside the United States, the juvenile may be released to
such person as is designated by the parent or legal guardian in a sworn
affidavit, executed before an immigration officer or consular officer,
as capable and willing to care for the juvenile's well-being. Such
person must execute an agreement
[[Page 485]]
to care for the juvenile and to ensure the juvenile's presence at all
future proceedings before the Service or an immigration judge.
(4) In unusual and compelling circumstances and in the discretion
of the district director or chief patrol agent, a juvenile may be
released to an adult, other than those identified in paragraphs (b)(1)
(i) through (iii) of this section, who executes an agreement to care
for the juvenile's well-being and to ensure the juvenile's presence at
all future proceedings before the Service or an immigration judge.
(c) Juvenile coordinator. The case of a juvenile for whom detention
is determined to be necessary should be referred to the ``Juvenile
Coordinator,'' whose responsibilities should include, but not be
limited to, finding suitable placement of the juvenile in a facility
designated for the occupancy of juveniles. These may include juvenile
facilities contracted by the Service, state or local juvenile
facilities, or other appropriate agencies authorized to accommodate
juveniles by the laws of the state or locality.
(d) Detention. In the case of a juvenile for whom detention is
determined to be necessary, for such interim period of time as is
required to locate suitable placement for the juvenile, whether such
placement is under paragraph (b) or (c) of this section, the juvenile
may be temporarily held by Service authorities or placed in any Service
detention facility having separate accommodations for juveniles.
(e) Refusal of release. If a parent of a juvenile detained by the
Service can be located, and is otherwise suitable to receive custody of
the juvenile, and the juvenile indicates a refusal to be released to
his or her parent, the parent(s) shall be notified of the juvenile's
refusal to be released to the parent(s), and shall be afforded an
opportunity to present their views to the district director, chief
patrol agent, or immigration judge before a custody determination is
made.
(f) Notice to parent of application for relief. If a juvenile seeks
release from detention, voluntary departure, parole, or any form of
relief from removal, where it appears that the grant of such relief may
effectively terminate some interest inherent in the parent-child
relationship and/or the juvenile's rights and interests are adverse
with those of the parent, and the parent is presently residing in the
United States, the parent shall be given notice of the juvenile's
application for relief, and shall be afforded an opportunity to present
his or her views and assert his or her interest to the district
director or immigration judge before a determination is made as to the
merits of the request for relief.
(g) Voluntary departure. Each juvenile, apprehended in the
immediate vicinity of the border, who resides permanently in Mexico or
Canada, shall be informed, prior to presentation of the voluntary
departure form or being allowed to withdraw his or her application for
admission, that he or she may make a telephone call to a parent, close
relative, a friend, or to an organization found on the free legal
services list. A juvenile who does not reside in Mexico or Canada who
is apprehended shall be provided access to a telephone and must in fact
communicate either with a parent, adult relative, friend, or with an
organization found on the free legal services list prior to
presentation of the voluntary departure form. If such juvenile, of his
or her own volition, asks to contact a consular officer, and does in
fact make such contact, the requirements of this section are satisfied.
(h) Notice and request for disposition. When a juvenile alien is
apprehended, he or she must be given a Form I-770, Notice of Rights and
Disposition. If the juvenile is less than 14 years of age or unable to
understand the notice, the notice shall be read and explained to the
juvenile in a language he or she understands. In the event a juvenile
who has requested a hearing pursuant to the notice subsequently decides
to accept voluntary departure or is allowed to withdraw his or her
application for admission, a new Form I-770 shall be given to, and
signed by the juvenile.
Sec. 236.4 Removal of S-5, S-6, and S-7 nonimmigrants.
(a) Condition of classification. As a condition of classification
and continued stay in classification pursuant to section 101(a)(15)(S)
of the Act, nonimmigrants in S classification must have executed Form
I-854, Part B, Inter-agency Alien Witness and Informant Record,
certifying that they have knowingly waived their right to a removal
hearing and right to contest, other than on the basis of an application
for withholding of deportation or removal, any removal action,
including detention pending deportation or removal, instituted before
lawful permanent resident status is obtained.
(b) Determination of deportability. (1) A determination to remove a
deportable alien classified pursuant to section 101(a)(15)(S) of the
Act shall be made by the district director having jurisdiction over the
place where the alien is located.
(2) A determination to remove such a deportable alien shall be
based on one or more of the grounds of deportability listed in section
237 of the Act based on conduct committed after, or conduct or a
condition not disclosed to the Service prior to, the alien's
classification as an S nonimmigrant under section 101(a)(15)(S) of the
Act, or for a violation of, or failure to adhere to, the particular
terms and conditions of status in S nonimmigrant classification.
(c) Removal procedures. (1) A district director who determines to
remove an alien witness or informant in S nonimmigrant classification
shall notify the Commissioner, the Assistant Attorney General, Criminal
Division, and the relevant law enforcement agency in writing to that
effect. The Assistant Attorney General, Criminal Division, shall concur
in or object to that decision. Unless the Assistant Attorney General,
Criminal Division, objects within 7 days, he or she shall be deemed to
have concurred in the decision. In the event of an objection by the
Assistant Attorney General, Criminal Division, the matter will be
expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant law
enforcement agency have a right of appeal from any decision to remove.
(2) A district director who has provided notice as set forth in
paragraph (c)(1) of this section and who has been advised by the
Commissioner that the Assistant Attorney General, Criminal Division,
has not objected shall issue a Warrant of Removal. The alien shall
immediately be arrested and taken into custody by the district director
initiating the removal. An alien classified under the provisions of
section 101(a)(15)(S) of the Act who is determined, pursuant to a
warrant issued by a district director, to be deportable from the United
States shall be removed from the United States to his or her country of
nationality or last residence. The agency that requested the alien's
presence in the United States shall ensure departure from the United
States and so inform the district director in whose jurisdiction the
alien has last resided. The district director, if necessary, shall
oversee the alien's departure from the United States and, in any event,
shall notify the Commissioner of the alien's departure.
(d) Withholding of removal. An alien classified pursuant to section
101(a)(15)(S) of the Act who applies for withholding of removal shall
have 10 days from the date the Warrant of Removal is served upon the
alien to file an application for such relief with the
[[Page 486]]
district director initiating the removal order. The procedures
contained in Secs. 208.2 and 208.16 of this chapter shall apply to such
an alien who applies for withholding of removal.
(e) Inadmissibility. An alien who applies for admission under the
provisions of section 101(a)(15)(S) of the Act who is determined by an
immigration officer not to be eligible for admission under that section
or to be inadmissible to the United States under one or more of the
grounds of inadmissibility listed in section 212 of the Act and which
have not been previously waived by the Commissioner will be taken into
custody. The district director having jurisdiction over the port-of-
entry shall follow the notification procedures specified in paragraph
(c)(1) of this section. A district director who has provided such
notice and who has been advised by the Commissioner that the Assistant
Attorney General, Criminal Division, has not objected shall remove the
alien without further hearing. An alien may not contest such removal,
other than by applying for withholding of removal.
Sec. 236.5 Fingerprints and photographs.
Every alien 14 years of age or older against whom proceedings based
on deportability under section 237 of the Act are commenced under this
part by service of a notice to appear shall be fingerprinted and
photographed. Such fingerprints and photographs shall be made available
to Federal, State, and local law enforcement agencies upon request to
the district director or chief patrol agent having jurisdiction over
the alien's record. Any such alien, regardless of his or her age, shall
be photographed and/or fingerprinted if required by any immigration
officer authorized to issue a notice to appear. Every alien 14 years of
age or older who is found to be inadmissible to the United States and
ordered removed by an immigration judge shall be fingerprinted, unless
during the preceding year he or she has been fingerprinted at an
American consular office.
Secs. 236.6-236.9 [Reserved]
Subpart B--Family Unity Program
Sec. 236.10 Description of program.
The family unity program implements the provisions of section 301
of the Immigration Act of 1990, Pub. L. 101-649. This Act is referred
to in this section as ``IMMACT 90''.
Sec. 236.11 Definitions.
In this subpart, the term:
Eligible immigrant means a qualified immigrant who is the spouse or
unmarried child of a legalized alien.
Legalized alien means an alien who:
(1) Is a temporary or permanent resident under section 210 or 245A
of the Act; or
(2) Is a permanent resident under section 202 of the Immigration
Reform and Control Act of 1986 (Cuban/Haitian Adjustment).
Sec. 236.12 Eligibility.
(a) General. An alien who is not a lawful permanent resident is
eligible to apply for benefits under the Family Unity Program if he or
she establishes:
(1) That he or she entered the United States before May 5, 1988 (in
the case of a relationship to a legalized alien described in subsection
(b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December
1, 1988 (in the case of a relationship to a legalized alien described
in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been
continuously residing in the United States since that date; and
(2) That on May 5, 1988 (in the case of a relationship to a
legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of
section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a
relationship to a legalized alien described in subsection (b)(2)(A) of
section 301 of IMMACT 90), he or she was the spouse or unmarried child
of a legalized alien, and that he or she has been eligible continuously
since that time for family-sponsored second preference immigrant status
under section 203(a)(2) of the Act based on the same relationship.
(b) Legalization application pending as of May 5, 1988 or December
1, 1988. An alien whose legalization application was filed on or before
May 5, 1988 (in the case of a relationship to a legalized alien
described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT
90), or as of December 1, 1988 (in the case of a relationship to a
legalized alien described in subsection (b)(2)(A) of section 301 of
IMMACT 90), but not approved until after that date will be treated as
having been a legalized alien as of May 5, 1988 (in the case of a
relationship to a legalized alien described in subsection (b)(2)(B) or
(b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in
the case of a relationship to a legalized alien described in subsection
(b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family
Unity Program.
Sec. 236.13 Ineligible aliens.
The following categories of aliens are ineligible for benefits
under the Family Unity Program:
(a) An alien who is deportable under any paragraph in section
237(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and
(3)(A); provided that an alien who is deportable under section
237(a)(1)(A) of such Act is also ineligible for benefits under the
Family Unity Program if deportability is based upon a ground of
inadmissibility described in section 212(a) (2) or (3) of the Act;
(b) An alien who has been convicted of a felony or three or more
misdemeanors in the United States; or
(c) An alien described in section 241(b)(3)(B) of the Act.
Sec. 236.14 Filing.
(a) General. An application for voluntary departure under the
Family Unity Program must be filed at the service center having
jurisdiction over the alien's place of residence. A Form I-817,
Application for Voluntary Departure under the Family Unity Program,
must be filed with the correct fee required in Sec. 103.7(b)(1) of this
chapter and the required supporting documentation. A separate
application with appropriate fee and documentation must be filed for
each person claiming eligibility.
(b) Decision. The service center director has sole jurisdiction to
adjudicate an application for benefits under the Family Unity Program.
The director will provide the applicant with specific reasons for any
decision to deny an application. Denial of an application may not be
appealed. An applicant who believes that the grounds for denial have
been overcome may submit another application with the appropriate fee
and documentation.
(c) Referral of denied cases for consideration of issuance of
notice to appear. If an application is denied, the case will be
referred to the district director with jurisdiction over the alien's
place of residence for consideration of whether to issue a notice to
appear. After an initial denial, an applicant's case will not be
referred for issuance of a notice to appear until 90 days from the date
of the initial denial, to allow the alien the opportunity to file a new
Form I-817 application in order to attempt to overcome the basis of the
denial. However, if the applicant is found not to be eligible for
benefits under Sec. 236.13(b), the Service reserves the right to issue
a notice to appear at any time after the initial denial.
[[Page 487]]
Sec. 236.15 Voluntary departure and eligibility for employment.
(a) Authority. Voluntary departure under this section implements
the provisions of section 301 of IMMACT 90, and authority to grant
voluntary departure under the family unity program derives solely from
that section. Voluntary departure under the family unity program shall
be governed solely by this section, notwithstanding the provisions of
section 240B of the Act and 8 CFR part 240.
(b) Children of legalized aliens. Children of legalized aliens
residing in the United States, who were born during an authorized
absence from the United States of mothers who are currently residing in
the United States under voluntary departure pursuant to the Family
Unity Program, may be granted voluntary departure under section 301 of
IMMACT 90 for a period of 2 years.
(c) Duration of voluntary departure. An alien whose application for
benefits under the Family Unity Program is approved will receive
voluntary departure for 2 years, commencing with the date of approval
of the application. Voluntary departure under this section shall be
considered effective from the date on which the application was
properly filed.
(d) Employment authorization. An alien granted benefits under the
Family Unity Program is authorized to be employed in the United States
and may apply for an employment authorization document on Form I-765,
Application for Employment Authorization. The application may be filed
concurrently with Form I-817. The application must be accompanied by
the correct fee required by Sec. 103.7(b)(1) of this chapter. The
validity period of the employment authorization will coincide with the
period of voluntary departure.
(e) Extension of voluntary departure. An application for an
extension of voluntary departure under the Family Unity Program must be
filed by the alien on Form I-817 along with the correct fee required in
Sec. 103.7(b)(1) of this chapter and the required supporting
documentation. The submission of a copy of the previous approval notice
will assist in shortening the processing time. An extension may be
granted if the alien continues to be eligible for benefits under the
Family Unity Program. However, an extension may not be approved if the
legalized alien is a lawful permanent resident, and a petition for
family-sponsored immigrant status has not been filed in behalf of the
applicant. In such case the Service will notify the alien of the reason
for the denial and afford him or her the opportunity to file another
Form I-817 once the petition, Form I-130, has been filed in behalf of
him or her. No charging document will be issued for a period of 90
days.
(f) Supporting documentation for extension application. Supporting
documentation need not include documentation provided with the previous
application(s). The extension application need only include changes to
previous applications and evidence of continuing eligibility since the
date of the prior approval.
Sec. 236.16 Travel outside the United States.
An alien granted Family Unity Program benefits who intends to
travel outside the United States temporarily must apply for advance
authorization using Form I-131, Application for Travel Document. The
authority to grant an application for advance authorization for an
alien granted Family Unity Program benefits rests soley with the
district director. An alien who is granted advance authorization and
returns to the United States in accordance with such authorization, and
who is found not to be inadmissible under section 212(a) (2) or (3) of
the Act, shall be inspected and admitted in the same immigration status
as the alien had at the time of departure, and shall be provided the
remainder of the voluntary departure period previously granted under
the Family Unity Program.
Sec. 236.17 Eligibility for Federal financial assistance programs.
An alien granted Family Unity Program benefits based on a
relationship to a legalized alien as defined in Sec. 236.11 is
ineligible for public welfare assistance in the same manner and for the
same period as the legalized alien who is ineligible for such
assistance under section 245A(h) or 210(f) of the Act, respectively.
Sec. 236.18 Termination of Family Unity Program benefits.
(a) Grounds of termination. The Service may terminate benefits
under the Family Unity Program whenever the necessity for the
termination comes to the attention of the Service. Such grounds will
exist in situations including, but not limited to, those in which:
(1) A determination is made that Family Unity Program benefits were
acquired as the result of fraud or willful misrepresentation of a
material fact;
(2) The beneficiary commits an act or acts which render him or her
inadmissible as an immigrant or who are ineligible for benefits under
the Family Unity Program;
(3) The legalized alien upon whose status benefits under the Family
Unity Program were based loses his or her legalized status;
(4) The beneficiary is the subject of a final order of exclusion,
deportation, or removal issued subsequent to the grant of Family Unity
benefits unless such final order is based on entry without inspection;
violation of status; or failure to comply with section 265 of the Act;
or inadmissibility at the time of entry other than inadmissibility
pursuant to section 212(a)(2) or 212(a)(3) of the Act, regardless of
whether the facts giving rise to such ground occurred before or after
the benefits were granted; or
(5) A qualifying relationship to a legalized alien no longer
exists.
(b) Notice procedure. Notice of intent to terminate and of the
grounds thereof shall be served pursuant to the provisions of
Sec. 103.5a of this chapter. The alien shall be given 30 days to
respond to the notice and may submit to the Service additional evidence
in rebuttal. Any final decision of termination shall also be served
pursuant to the provisions of Sec. 103.5a of this chapter. Nothing in
this section shall preclude the Service from commencing exclusion or
deportation proceedings prior to termination of Family Unity Program
benefits.
(c) Effect of termination. Termination of benefits under the Family
Unity Program, other than as a result of a final order of removal,
shall render the alien amenable to removal proceedings under section
240 of the Act. If benefits are terminated, the period of voluntary
departure under this section is also terminated.
PART 237--[REMOVED AND RESERVED]
102. Part 237 is removed and reserved.
103. Part 238 is added to read as follows:
PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
Sec. 238.1 Proceedings under section 238(b) of the Act.
(a) Definitions. As used in this part:
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. 239.1 of this chapter as authorized to issue notices to appear.
(b) Preliminary consideration and Notice of Intent to Issue a Final
[[Page 488]]
Administrative Deportation Order; commencement of proceedings. (1)
Basis of Service charge. An issuing Service officer shall cause to be
served upon an alien a Form I-851, Notice of Intent to Issue a Final
Administrative Deportation Order (Notice of Intent), 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, or has
conditional permanent resident status under section 216 of the Act;
(iii) Has been convicted (as defined in section 101(a)(48) of the
Act and as demonstrated by any of the documents or records listed in
Sec. 3.41 of this chapter) of an aggravated felony and such conviction
has become final; and
(iv) Is deportable under section 237(a)(2)(A)(iii) of the Act,
including an alien who has neither been admitted nor paroled, but who
is conclusively presumed deportable under section 237(a)(2)(A)(iii) by
operation of section 238(c) of the Act (``Presumption of
Deportability'').
(2) Notice. (i) Removal proceedings under section 238(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 forth the preliminary
determinations and inform the alien of the Service's intention to issue
a Form I-851A, Final Administrative Removal Order, 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, at no expense to the Government, by counsel of
the alien's choosing, 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 10 calendar days after
service of such Notice (or 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 the rebuttal period, the country
to which he or she chooses to be deported in accordance with section
241 of the Act, in the event that a Final Administrative Removal Order
is issued, and that the Service will honor such designation only to the
extent permitted under the terms, limitations, and conditions of
section 241 of the Act.
(iii) The Service must determine that the person served with the
Notice of Intent is the person named on the Notice.
(iv) The Service shall provide the alien with a list of available
free legal services programs qualified under 8 CFR part 3 and
organizations recognized pursuant to 8 CFR part 292, located within the
district or sector where the Notice of Intent is issued.
(v) 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 10
calendar days from service of the Notice of Intent, or 13 calendar days
if service is by mail, to file a response to the Notice of Intent. In
the response, the alien may: designate his or her choice of country for
removal; 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 Removal 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 of
Intent, 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.
(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 10
calendar days following service of the Government's evidence (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.
(d) Determination by deciding Service officer. (1) No response
submitted or concession of deportability. If the deciding Service
officer does not receive 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 Removal Order that states the reasons
for the deportation decision. The alien may, in writing, knowingly and
voluntarily waive the 14-day waiting period before execution of the
final order of removal provided in a paragraph (f) of this section.
(2) Response submitted. (i) Insufficient rebuttal; no 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, the deciding Service officer shall issue and
cause to be served upon the alien a Final Administrative Removal Order
that states the reasons for the decision of deportability.
(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 a notice to appear to initiate removal proceedings under
section 240 of the Act. The deciding Service officer may also 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 10 calendar days of
service of the additional evidence (or 13 calendar days if service is
by mail). If the deciding Service officer finds, after considering all
[[Page 489]]
additional evidence, that deportability is established by clear,
convincing, and unequivocal evidence in the record of proceeding, 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 decision of deportability.
(iii) Conversion to proceedings under section 240 of the Act. If
the deciding Service officer finds that the alien is not amenable to
removal under section 238 of the Act, the deciding Service officer
shall terminate the expedited proceedings under section 238 of the Act
and shall, where appropriate, cause to be issued a notice to appear for
the purpose of initiating removal proceedings before an immigration
judge under section 240 of the Act.
(3) Termination of proceedings by deciding Service officer. Only
the deciding Service officer may terminate proceedings under section
238 of the Act, in accordance with this section.
(e) Proceedings commenced under section 240 of the Act. In any
proceeding commenced under section 240 of the Act which is based on
deportability under section 237 of the Act, if it appears that the
respondent alien is subject to removal pursuant to section 238 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 238 of the Act. However, in
the absence of any such request, the immigration judge shall complete
the proceeding commenced under section 240 of the Act.
(f) Executing final removal order of deciding Service officer. (1)
Time of execution. Upon the issuance of a Final Administrative Removal
Order, the Service shall issue a Warrant of Removal in accordance with
Sec. 241.2 of this chapter; such warrant shall be executed no sooner
than 14 calendar days after the date the Final Administrative Removal
Order is issued, unless the alien knowingly, voluntarily, and in
writing waives the 14-day period.
(2) Country to which alien is to be removed. The deciding Service
officer shall designate the country of removal in the manner prescribed
by section 241 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 Removal, the alien may be arrested and
taken into custody under the authority of a Warrant of Arrest issued by
an officer listed in Sec. 287.5(e)(2) of this chapter. The decision of
the Service concerning custody or bond shall not be administratively
appealable during proceedings initiated under section 238 of the Act
and this part.
(h) Record of proceeding. The Service shall maintain a record of
proceeding for judicial review of the Final Administrative Removal
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 Removal 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. The executed duplicate of the Notice of Intent in the
record of proceedings shall be retained as evidence that the individual
upon whom the notice for the proceeding was served was, in fact, the
alien named in the notice.
Authority: 8 U.S.C. 1228; 8 CFR part 2.
104. Part 239 is added to read as follows:
PART 239--INITIATION OF REMOVAL PROCEEDINGS
Sec.
239.1 Notice to appear.
239.2 Cancellation of notice to appear.
239.3 Effect of filing notice to appear.
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
Sec. 239.1 Notice to appear.
(a) Commencement. Every removal proceeding conducted under section
240 of the Act to determine the deportability or inadmissibility of an
alien is commenced by the filing of a notice to appear with the
Immigration Court. Any immigration officer performing an inspection of
an arriving alien at a port-of-entry may issue a notice to appear to
such an alien. In addition, the following officers, or officers acting
in such capacity, may issue a notice to appear:
(1) District directors (except foreign);
(2) Deputy district directors (except foreign);
(3) Assistant district directors for investigations;
(4) Deputy assistant district directors for investigations;
(5) Assistant district directors for deportation;
(6) Deputy assistant district directors for deportation;
(7) Assistant district directors for examinations;
(8) Deputy assistant district directors for examinations;
(9) Officers in charge (except foreign);
(10) Assistant officers in charge (except foreign);
(11) Chief patrol agents;
(12) Deputy chief patrol agents;
(13) Associate chief patrol agents;
(14) Assistant chief patrol agents;
(15) Patrol agents in charge;
(16) The Assistant Commissioner, Investigations;
(17) Service center directors;
(18) Deputy center directors;
(19) Assistant center directors for examinations;
(20) Supervisory asylum officers; or
(21) Institutional Hearing Program directors.
(b) Service of notice to appear. Service of the notice to appear
shall be in accordance with section 239 of the Act.
Sec. 239.2 Cancellation of notice to appear.
(a) Any officer authorized by Sec. 239.1(a) to issue a notice to
appear may cancel such notice prior to jurisdiction vesting with the
immigration judge pursuant to Sec. 3.14 of this chapter provided the
officer is satisfied that:
(1) The respondent is a national of the United States;
(2) The respondent is not deportable or inadmissable under
immigration laws;
(3) The respondent is deceased;
(4) The respondent is not in the United States;
(5) The notice was issued for the respondent's failure to file a
timely petition as required by section 216(c) of the Act, but his or
her failure to file a timely petition was excused in accordance with
section 216(d)(2)(B) of the Act; or
(6) The notice to appear was improvidently issued.
(b) A notice to appear issued pursuant to section 235(b)(3) of the
Act may be canceled under provisions in paragraphs (a)(2) and (a)(6) of
this section only by the issuing officer, unless it is impracticable
for the issuing officer to cancel the notice.
(c) Motion to dismiss. After commencement of proceedings pursuant
to Sec. 3.14 of this chapter, any officer enumerated in paragraph (a)
of this section may move for dismissal of the matter on the grounds set
out under paragraph (a) of this section. Dismissal of the matter shall
be without prejudice to the alien or the Service.
(d) Motion for remand. After commencement of the hearing, any
officer enumerated in paragraph (a) of this section may move for remand
of the
[[Page 490]]
matter to district jurisdiction on the ground that the foreign
relations of the United States are involved and require further
consideration. Remand of the matter shall be without prejudice to the
alien or the Service.
(e) Warrant of arrest. When a notice to appear is canceled or
proceedings are terminated under this section any outstanding warrant
of arrest is canceled.
(f) Termination of removal proceedings by immigration judge. An
immigration judge may terminate removal proceedings to permit the alien
to proceed to a final hearing on a pending application or petition for
naturalization when the alien has established prima facie eligibility
for naturalization and the matter involves exceptionally appealing or
humanitarian factors; in every other case, the removal hearing shall be
completely as promptly as possible notwithstanding the pendency of an
application for naturalization during any state of the proceedings.
Sec. 239.3 Effect of filing notice to appear.
The filing of a notice to appear shall have no effect in
determining periods of unlawful presence as defined in section
212(a)(9)(B) of the Act.
Secs. 240.1-240.20 Redesignated as Secs. 244.3-244.22]
105. Sections 240.1 through 240.20 are redesignated as Secs. 244.3
through 244.22.
106. Part 240 is revised to read as follows:
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
Subpart A--Removal Proceedings
Sec.
240.1 Immigration judges.
240.2 Attorney for the Service.
240.3 Representation by counsel.
240.4 Incompetent respondents.
240.5 Interpreter.
240.6 Postponement and adjournment of hearing.
240.7 Evidence in removal proceedings under section 240 of the Act.
240.8 Burdens of proof in removal proceedings.
240.9 Contents of record.
240.10 Hearing.
240.11 Ancillary matters, applications.
240.12 Decision of the immigration judge.
240.13 Notice of decision.
240.14 Finality of order.
240.15 Appeals.
240.16 Application of new procedures or termination of proceedings
in old proceedings pursuant to section 309(c) of Pub. L. 104-208.
Subpart B--Cancellation of Removal
240.20 Cancellation of removal and adjustment of status under
section 240A(a) and 240A(b) of the Act
Subpart C--Voluntary Depature
240.25 Voluntary departure--authority of the Service.
240.26 Voluntary departure--authority of the Executive Office for
Immigration Review.
Subpart D--Exclusion of aliens (for proceedings commenced prior to
April 1, 1997)
240.30 Proceedings prior to April 1, 1997.
240.31 Authority of immigration judges.
240.32 Hearing.
240.33 Applications for asylum or withholding of deportation.
240.34 Renewal of application for adjustment of status under
section 245 of the Act.
240.35 Decision of the immigration judge; notice of the applicant.
240.36 Finality of order.
240.37 Appeals.
240.38 Fingerprinting of excluded aliens.
240.39 Reopening or reconsideration.
Subpart E--Proceedings to determine deportability of aliens in the
United States: Hearing and Appeal (for proceedings commenced prior to
April 1, 1997)
240.40 Proceedings commenced prior to April 1, 1997.
240.41 Immigration judges.
240.42 Representation by counsel.
240.43 Incompetent respondents.
240.44 Interpreter.
240.45 Postponement and adjournment of hearing.
240.46 Evidence.
240.47 Contents of record.
240.48 Hearing.
240.49 Ancillary matters, applications.
240.50 Decision of the immigration judge.
240.51 Notice of decision.
240.52 Finality of order.
240.53 Appeals.
240.54 Proceedings under section 242(f) of the Act.
Subpart F--Suspension of deportation and voluntary departure (for
proceedings commenced prior to April 1, 1997)
240.55 Proceedings commenced prior to April 1, 1997.
240.56 Application.
240.57 Extension of time to depart.
Subpart G--Civil penalties for failure to depart [Reserved]
Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.
Subpart A--Removal Proceedings
Sec. 240.1 Immigration judges.
(a) Authority: In any removal proceeding pursuant to section 240 of
the Act, the immigration judge shall have the authority to: determine
removability pursuant to section 240(a)(1) of the Act; to make
decisions, including orders of removal as provided by section
240(c)(1)(A) of the Act; to determine applications under sections 208,
212(a)(2)(F), 212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11),
212(d)(12), 212(g), 212(h), 212(i), 212(k), 237(a)(1)(E)(iii),
237(a)(1)(H), 237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of
the Act; to order withholding of removal pursuant to section 241(b)(3)
of the Act; and to take any other action consistent with applicable law
and regulations as may be appropriate. In determining cases referred
for further inquiry, immigration judges shall have the powers and
authority conferred upon them by the Act and this chapter. Subject to
any specific limitation prescribed by the Act and this chapter,
immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and
necessary for the disposition of such cases. An immigration judge may
certify his or her decision in any case under section 240 of the Act to
the Board of Immigration Appeals when it involves an unusually complex
or novel question of law or fact. Nothing contained in this part shall
be construed to diminish the authority conferred on immigration judges
under sections 101(b)(4) and 103 of the Act.
(b) Withdrawal and substitution of immigration judges. The
immigration judge assigned to conduct the hearing shall at any time
withdraw if he or she deems himself or herself disqualified. If an
immigration judge becomes unavailable to complete his or her duties,
another immigration judge may be assigned to complete the case. The new
immigration judge shall familiarize himself or herself with the record
in the case and shall state for the record that he or she has done so.
(c) Conduct of hearing. The immigration judge shall receive and
consider material and relevant evidence, rule upon objections, and
otherwise regulate the course of the hearing.
Sec. 240.2 Attorney for the Service.
(a) Authority. The attorney for the Service shall present on behalf
of the government evidence material to the issues of deportability or
inadmissibility and any other issues that may require disposition by
the immigration judge. The duties of the Service attorney include, but
are not limited to, the presentation of evidence and the interrogation,
examination, and cross-examination of the respondent or other
witnesses. Nothing contained herein diminishes the authority of an
immigration judge to conduct proceedings under this part. The Service
[[Page 491]]
attorney is authorized to appeal from a decision of the immigration
judge pursuant to Sec. 3.38 of this chapter and to move for reopening
or reconsideration pursuant to Sec. 3.23 of this chapter.
(b) Assignment. In a removal proceeding, the Service shall assign
an attorney to each case within the provisions of Sec. 240.10(d), and
to each case in which an unrepresented respondent is incompetent or is
under 18 years of age, and is not accompanied by a guardian, relative,
or friend. In a case in which the removal proceeding would result in an
order of removal, the Service shall assign an attorney to each case in
which a respondent's nationality is in issue. A Service attorney shall
be assigned in every case in which the Commissioner approves the
submission of non-record information under Sec. 240.11(a)(3). In his or
her discretion, whenever he or she deems such assignment necessary or
advantageous, the General Counsel may assign a Service attorney to any
other case at any stage of the proceeding.
Sec. 240.3 Representation by counsel.
The respondent may be represented at the hearing by an attorney or
other representative qualified under 8 CFR part 292.
Sec. 240.4 Incompetent respondents.
When it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the attorney, legal
representative, legal guardian, near relative, or friend who was served
with a copy of the notice to appear shall be permitted to appear on
behalf of the respondent. If such a person cannot reasonably be found
or fails or refuses to appear, the custodian of the respondent shall be
requested to appear on behalf of the respondent.
Sec. 240.5 Interpreter.
Any person acting as an interpreter in a hearing before an
immigration judge under this part shall be sworn to interpret and
translate accurately, unless the interpreter is an employee of the
United States Government, in which event no such oath shall be
required.
Sec. 240.6 Postponement and adjournment of hearing.
After the commencement of the hearing, the immigration judge may
grant a reasonable adjournment either at his or her own instance or,
for good cause shown, upon application by the respondent or the
Service.
Sec. 240.7 Evidence in removal proceedings under section 240 of the
Act.
(a) Use of prior statements.
The immigration judge may receive in evidence any oral or written
statement that is material and relevant to any issue in the case
previously made by the respondent or any other person during any
investigation, examination, hearing, or trial.
(b) Testimony. Testimony of witnesses appearing at the hearing
shall be under oath or affirmation administered by the immigration
judge.
(c) Depositions. The immigration judge may order the taking of
depositions pursuant to Sec. 3.35 of this chapter.
Sec. 240.8 Burdens of proof in removal proceedings.
(a) Deportable aliens. A respondent charged with deportability
shall be found to be removable if the Service proves by clear and
convincing evidence that the respondent is deportable.
(b) Arriving aliens. In proceedings commenced upon a respondent's
arrival in the United States or after the revocation or expiration of
parole, the respondent must prove that he or she is clearly and beyond
a doubt entitled to be admitted to the United States and is not
inadmissible as charged.
(c) Aliens present in the United States without being admitted or
paroled. In the case of a respondent in the United States without being
admitted or paroled, the Service must first establish the alienage of
the respondent. Once alienage has been established, unless the
respondent demonstrates by clear and convincing evidence that he or she
is lawfully in the United States pursuant to a prior admission, the
respondent must prove that he or she is clearly and beyond a doubt
entitled to be admitted to the United States and is not inadmissible as
charged.
(d) Relief from removal. The respondent shall have the burden of
establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.
If the evidence indicates that one or more of the grounds for mandatory
denial of the application for relief may apply, the alien shall have
the burden of proving by a preponderance of the evidence that such
grounds do not apply.
Sec. 240.9 Contents of record.
The hearing before the immigration judge, including the testimony,
exhibits, applications, proffers, and requests, the immigration judge's
decision, and all written orders, motions, appeals, briefs, and other
papers filed in the proceedings shall constitute the record in the
case. The hearing shall be recorded verbatim except for statements made
off the record with the permission of the immigration judge. In his or
her decision, the immigration judge may exclude from the record any
arguments made in connection with motions, applications, requests, or
objections, but in such event the person affected may submit a brief.
Sec. 240.10 Hearing.
(a) Opening. In a removal proceeding, the immigration judge shall:
(1) Advise the respondent of his or her right to representation, at
no expense to the government, by counsel of his or her own choice
authorized to practice in the proceedings and require the respondent to
state then and there whether he or she desires representation;
(2) Advise the respondent of the availability of free legal
services provided by organizations and attorneys qualified under 8 CFR
part 3 and organizations recognized pursuant to Sec. 292.2 of this
chapter, located in the district where the removal hearing is being
held;
(3) Ascertain that the respondent has received a list of such
programs, and a copy of appeal rights;
(4) Advise the respondent that he or she will have a reasonable
opportunity to examine and object to the evidence against him or her,
to present evidence in his or her own behalf and to cross-examine
witnesses presented by the government (but respondent shall not be
entitled to examine such national security information as the
government may proffer in opposition to the respondent's admission to
the United States or to an application by the respondent for
discretionary relief);
(5) Place the respondent under oath;
(6) Read the factual allegations and the charges in the notice to
appear to the respondent and explain them in non-technical language;
and
(7) Enter the notice to appear as an exhibit in the Record of
Proceeding.
(b) Public access to hearings. Removal hearings shall be open to
the public, except that the immigration judge may, in his or her
discretion, close proceedings as provided in Sec. 3.27 of this chapter.
(c) Pleading by respondent. The immigration judge shall require the
respondent to plead to the notice to appear by stating whether he or
she admits or denies the factual allegations and his or her
removability under the charges contained therein. If the respondent
admits the factual allegations and admits his or her removability under
the charges and the immigration judge is satisfied that no
[[Page 492]]
issues of law or fact remain, the immigration judge may determine that
removability as charged has been established by the admissions of the
respondent. The immigration judge shall not accept an admission of
removability from an unrepresented respondent who is incompetent or
under the age of 18 and is not accompanied by an attorney or legal
representative, a near relative, legal guardian, or friend; nor from an
officer of an institution in which a respondent is an inmate or
patient. When, pursuant to this paragraph, the immigration judge does
not accept an admission of removability, he or she shall direct a
hearing on the issues.
(d) Issues of removability. When removability is not determined
under the provisions of paragraph (b) of this section, the immigration
judge shall request the assignment of an assistant district counsel,
and shall receive evidence as to any unresolved issues, except that no
further evidence need be received as to any facts admitted during the
pleading. The alien shall provide a court certified copy of a Judicial
Recommendation Against Deportation (JRAD) to the immigration judge when
such recommendation will be the basis of denying any charge(s) brought
by the Service in the proceedings against the alien. No JRAD is
effective against a charge of deportability under former section
241(a)(11) of the Act or if the JRAD was granted on or after November
29, 1990.
(e) Additional charges in removal hearings. At any time during the
proceeding, additional or substituted charges of inadmissibility and/or
deportability and/or factual allegations may be lodged by the Service
in writing. The alien in removal proceedings shall be served with a
copy of these additional charges and allegations. The immigration judge
shall read the additional factual allegations and charges to the and
explain them to him or her. The immigration judge shall advise the
alien, if he or she is not represented by counsel, that the alien may
be so represented, and that he or she may be given a reasonable
continuance to respond to the additional factual allegations and
charges. Thereafter, the provision of Sec. 240.6(b) relating to
pleading shall apply to the additional factual allegations and charges.
(f) Country of removal.The immigration judge shall notify the alien
that if he or she is finally ordered removed, the country of removal
will in the first instance be directed pursuant to section 241(b) of
the Act to the country designated by the alien, unless section
241(b)(2)(C) of the Act applies, and shall afford him or her an
opportunity then and there to make such designation. The immigration
judge shall then specify and state for the record the country, or
countries in the alternative, to which the alien's removal will be
directed pursuant to section 241(b) of the Act if the country of his or
her designation will not accept him or her into its territory, or fails
to furnish timely notice of acceptance, or if the alien declines to
designate a country.
(g) In the event that the Service is unable to remove the alien to
the specified or alternative country or countries, the Service may
remove the alien to any other country as permitted by section 241(b) of
the Act.
Sec. 240.11 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. (1) In a removal proceeding, an alien may apply to
the immigration judge for cancellation of removal under section 240A of
the Act, adjustment of status under section 245 of the Act, adjustment
of status under section 1 of the Act of November 2, 1996 (as modified
by section 606 of Pub. L 104-132) or under section 101 or 104 of the
Act of October 28, 1977, or for the creation of a record of lawful
admission for permanent residence under section 249 of the Act. The
application shall be subject to the requirements of Sec. 240.20, and 8
CFR parts 245 and 249. The approval of any application made to the
immigration judge under section 245 of the Act by an alien spouse (as
defined in section 216(g)(1) of the Act) or by an alien entrepreneur
(as defined in section 216A(f)(1) of the Act) shall result in the
alien's obtaining the status of lawful permanent resident on a
conditional basis in accordance with the provisions of section 216 or
216A of the Act, whichever is applicable. However, the Petition to
Remove the Conditions on Residence required by section 216(c) of the
Act, or the Petition by Entrepreneur to Remove Conditions required by
section 216A(c) of the Act shall be made to the director in accordance
with 8 CFR part 216.
(2) In conjunction with any application for creation of status of
an alien lawfully admitted for permanent residence made to an
immigration judge, if the alien is inadmissible under any provision of
section 212(a) of the Act, and believes that he or she meets the
eligibility requirements for a waiver of the ground of inadmissibility,
he or she may apply to the immigration judge for such waiver. The
immigration judge shall inform the alien of his or her apparent
eligibility to apply for any of the benefits enumerated in this chapter
and shall afford the alien an opportunity to make application during
the hearing.
(3) In exercising discretionary power when considering an
application for status as a permanent resident under this chapter, the
immigration judge may consider and base the decision on information not
contained in the record and not made available for inspection by the
alien, provided the Commissioner has determined that such information
is relevant and is classified under the applicable Executive Order as
requiring protection from unauthorized disclosure in the interest of
national security. Whenever the immigration judge believes that he or
she can do so while safeguarding both the information and its source,
the immigration judge should inform the alien of the general nature of
the information in order that the alien may have an opportunity to
offer opposing evidence. A decision based in whole or in part on such
classified information shall state that the information is material to
the decision.
(b) Voluntary departure. The alien may apply to the immigration
judge for voluntary departure in lieu of removal pursuant to section
240B of the Act and subpart C of this part.
(c) Applications for asylum and withholding of removal. (1) If the
alien expresses fear of persecution or harm upon return to any of the
countries to which the alien might be removed pursuant to
Sec. 240.10(f), and the alien has not previously filed an application
for asylum or withholding of removal that has been referred to the
immigration judge by an asylum officer in accordance with Sec. 208.14
of this chapter, the immigration judge shall:
(i) Advise the alien that he or she may apply for asylum in the
United States or withholding of removal of those countries;
(ii) Make available the appropriate application forms; and
(iii) Advise the alien of the privilege of being represented by
counsel at no expense to the government and of the consequences,
pursuant to section 208(d)(6) of the Act, of knowingly, filing a
frivolous application for asylum. The immigration judge shall provide
to the alien a list of persons who have indicated their availability to
represent aliens in asylum proceedings on a pro bono basis.
(2) An application for asylum or withholding of removal must be
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy
[[Page 493]]
to the Department of State pursuant to Sec. 208.11 of this chapter and
shall calendar the case for a hearing. The reply, if any, from the
Department of State, unless classified under the applicable Executive
Order, shall be given to both the alien and to the assistant district
counsel representing the government.
(3) Applications for asylum and withholding of removal so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 of this chapter after an
evidentiary hearing to resolve factual issues in dispute. An
evidentiary hearing extending beyond issues related to the basis for a
mandatory denial of the application pursuant to Sec. 208.14 or
Sec. 208.16 of this chapter is not necessary once the immigration judge
has determined that such a denial is required.
(i) Evidentiary hearings on applications for asylum or withholding
of removal will be open to the public unless the alien expressly
requests that the hearings be closed pursuant to Sec. 3.27 of this
chapter. The immigration judge shall inquire whether the alien requests
such closure.
(ii) Nothing in this section is intended to limit the authority of
the immigration judge to properly control the scope of any evidentiary
hearing.
(iii) During the removal hearing, the alien shall be examined under
oath on his or her application and may present evidence and witnesses
in his or her own behalf. The alien has the burden of establishing that
he or she is a refugee as defined in section 101(a)(42) of the Act
pursuant to the standards set forth in Sec. 208.13 of this chapter.
(iv) The assistant district counsel may call witnesses and present
evidence for the record, including information classified under the
applicable Executive Order, provided the immigration judge or the Board
has determined that such information is relevant to the hearing. When
the immigration judge receives such classified information, he or she
shall inform the alien. The agency that provides the classified
information to the immigration judge may provide an unclassified
summary of the information for release to the alien, whenever it
determines it can do so consistently with safeguarding both the
classified nature of the information and its sources. The summary
should be as detailed as possible, in order that the alien may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state whether such
information is material to the decision.
(4) The decision of an immigration judge to grant or deny asylum or
withholding of removal shall be communicated to the alien and to the
assistant district counsel. An adverse decision shall state why asylum
or withholding of removal was denied.
(d) Application for relief under sections 237(a)(1)(H) and
237(a)(1)(E)(iii) of the Act. The respondent may apply to the
immigration judge for relief from removal under sections 237(a)(1)(H)
and 237(a)(1)(E)(iii) of the Act.
(e) General. An application under this section shall be made only
during the hearing and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does not
admit his or her alienage or deportability. However, nothing in this
section shall prohibit the Service from using information supplied in
an application for asylum or withholding of deportation or removal
submitted to the Service on or after January 4, 1995, as the basis for
issuance of a charging document or to establish alienage or
deportability in a case referred to an immigration judge under
Sec. 208.14(b) of this chapter. The alien shall have the burden of
establishing that he or she is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.
Nothing contained herein is intended to foreclose the respondent from
applying for any benefit or privilege that he or she believes himself
or herself eligible to receive in proceedings under this part. Nothing
in this section is intended to limit the Attorney General's authority
to remove an alien to any country permitted by section 241(b) of the
Act.
(f) Fees. The alien shall not be required to pay a fee on more than
one application within paragraphs (a) and (c) of this section, provided
that the minimum fee imposed when more than one application is made
shall be determined by the cost of the application with the highest
fee.
Sec. 240.12 Decision of the immigration judge.
(a) Contents. The decision of the immigration judge may be oral or
written. The decision of the immigration judge shall include a finding
as to inadmissibility or deportability. The formal enumeration of
findings is not required. The decision shall also contain reasons for
granting or denying the request. The decision shall be concluded with
the order of the immigration judge.
(b) Summary decision. Notwithstanding the provisions of paragraph
(a) of this section, in any case where inadmissibility or deportability
is determined on the pleadings pursuant to Sec. 240.10(b) and the
respondent does not make an application under Sec. 240.11, the alien is
statutorily ineligible for relief, or the respondent applies for
voluntary departure only and the immigration judge grants the
application, the immigration judge may enter a summary decision or, if
voluntary departure is granted, a summary decision with an alternate
order of removal.
(c) Order of the immigration judge. The order of the immigration
judge shall direct the respondent's removal, or the termination of the
proceedings, or such other disposition of the case as may be
appropriate. When removal is ordered, the immigration judge shall
specify the country, or countries in the alternate, to which
respondent's removal shall be directed. The immigration judge is
authorized to issue orders in the alternative or in combination as he
or she may deem necessary.
Sec. 240.13 Notice of decision.
(a) Written decision. A written decision shall be served upon the
respondent and the service counsel, together with the notice referred
to in Sec. 3.3 of this chapter. Service by mail is complete upon
mailing.
(b) Oral decision. An oral decision shall be stated by the
immigration judge in the presence of the respondent and the service
counsel, if any, at the conclusion of the hearing. A copy of the
summary written order shall be furnished at the request of the
respondent or the service counsel.
(c) Summary decision. When the immigration judge renders a summary
decision as provided in Sec. 240.12(b), he or she shall serve a copy
thereof upon the respondent at the conclusion of the hearing.
(d) Decision to remove. If the immigration judge decides that the
respondent is removable and orders the respondent to be removed, the
immigration judge shall advise the respondent of such decision, and of
the consequences for failure to depart under the order of removal,
including civil and criminal penalties described at sections 274D and
243 of the Act. Unless appeal from the decision is waived, the
respondent shall be furnished with Form EOIR-26, Notice of Appeal, and
advised of the provisions of Sec. 240.15.
[[Page 494]]
Sec. 240.14 Finality of order.
The order of the immigration judge shall become final in accordance
with Sec. 3.39 of this chapter.
Sec. 240.15 Appeals.
Pursuant to 8 CFR part 3, an appeal shall lie from a decision of an
immigration judge to the Board of Immigration Appeals, except that no
appeal shall lie from an order of removal entered in absentia. The
procedures regarding the filing of a Form EOIR 26, Notice of Appeal,
fees, and briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this
chapter. An appeal shall be filed within 30 calendar days after the
mailing of a written decision, the stating of an oral decision, or the
service of a summary decision. The filing date is defined as the date
of receipt of the Notice of Appeal by the Board of Immigration Appeals.
The reasons for the appeal shall be stated in the Notice of Appeal in
accordance with the provisions of Sec. 3.3(b) of this chapter. Failure
to do so may constitute a ground for dismissal of the appeal by the
Board pursuant to Sec. 3.1(d)(1-a) of this chapter.
Sec. 240.16 Application of new procedures or termination of
proceedings in old proceedings pursuant to section 309(c) of Pub. L.
104-208.
The Attorney General shall have the sole discretion to apply the
provisions of section 309(c) of Pub. L. 104-208, which provides for the
application of new removal procedures to certain cases in exclusion or
deportation proceedings and for the termination of certain cases in
exclusion or deportation proceedings and initiation of new removal
proceedings. The Attorney General's application of the provisions of
section 309(c) shall become effective upon publication of a notice in
the Federal Register. However, if the Attorney General determines, in
the exercise of discretion, that the delay caused by publication would
adversely affect the interests of the United States or the effective
enforcement of the immigration laws, the Attorney General's application
shall become effective immediately upon issuance, and shall be
published in the Federal Register as soon as practicable thereafter.
Secs. 240.17-240.19 [Reserved]
Subpart B--Cancellation of Removal
Sec. 240.20 Cancellation of removal and adjustment of status under
section 240A of the Act.
(a) Jurisdiction. An application for the exercise of discretion
under section 240A of the Act shall be submitted on Form EOIR-42,
Application for Cancellation of Removal, to the Immigration Court
having administrative control over the Record of Proceeding of the
underlying removal proceeding under section 240 of the Act.
(b) Filing the application. The application may be filed only with
the immigration Court after jurisdiction has vested pursuant to
Sec. 3.14 of this chapter.
Secs. 240.21-240.24 [Reserved]
Subpart C--Voluntary Departure
Sec. 240.25 Voluntary departure--authority of the Service.
(a) Authorized officers. The authority contained in section 240B(a)
of the Act to permit aliens to depart voluntarily from the United
States may be exercised in lieu of being subject to proceedings under
section 240 of the Act or prior to the completion of such proceedings
by district directors, assistant district directors for investigations,
assistant district directors for examinations, officers in charge,
chief patrol agents, service center directors, and assistant center
directors for examinations.
(b) Conditions. The Service may attach to the granting of voluntary
departure any conditions it deems necessary to ensure the alien's
timely departure from the United States, including the posting of a
bond, continued detention pending departure, and removal under
safeguards. The alien shall be required to present to the Service, for
inspection and photocopying, his or her passport or other travel
documentation sufficient to assure lawful entry into the country to
which the alien is departing. The Service may hold the passport or
documentation for sufficient time to investigate its authenticity.
(c) Periods of time. The authorized officer, in his or her
discretion, shall specify the period of time permitted for voluntary
departure, and may grant extensions thereof, except that the total
period allowed, including any extensions, shall not exceed 120 days.
(d) Application. Any alien who believes himself or herself to be
eligible for voluntary departure under this section may apply therefor
at any office of the Service. After the commencement of removal
proceedings, the application may be communicated through the Service
attorney. If the Service agrees to voluntary departure after
proceedings have commenced, it may either:
(1) Join in a motion to terminate the proceedings, and if the
proceedings are terminated, grant voluntary departure; or
(2) Join in a motion asking the immigration judge to permit
voluntary departure in accordance with Sec. 240.26.
(e) Appeals. An appeal shall not lie from a denial of an
application for voluntary departure under this section, but the denial
shall be without prejudice to the alien's right to apply to the
immigration judge for voluntary departure in accordance with
Sec. 240.26 or for relief from removal under any provision of law.
(f) Revocation. If, subsequent to the granting of an application
for voluntary departure under this section, it is ascertained that the
application should not have been granted, that grant may be revoked
without notice by any officer authorized to grant voluntary departure
under Sec. 240.25(a).
Sec. 240.26 Voluntary departure--authority of the Executive Office for
Immigration Review.
(a) Eligibility; general. An alien previously granted voluntary
departure under section 240B of the Act, including by the Service under
Sec. 240.25, and who fails to depart voluntarily within the time
specified, shall thereafter be ineligible, for a period of ten years,
for voluntary departure or for relief under sections 240A, 245, 248,
and 249 of the Act.
(b) Prior to completion of removal proceedings. (1) Grant by the
immigration judge. (i) An alien may be granted voluntary departure by
an immigration judge pursuant to section 240B(a) of the Act only if the
alien:
(A) Makes such request prior to or at a master calendar hearing;
(B) Makes no additional request for relief (or if such requests
have been made, such requests are withdrawn prior to any grant of
voluntary departure pursuant to this section);
(C) Concedes removability; and
(D) Waives appeal of all issues.
(ii) The judge may not grant voluntary departure under section
240B(a) of the Act beyond 30 days after the case has been calendared
for a merits hearing, except pursuant to a stipulation under paragraph
(b)(2) of this section.
(2) Stipulation. At any time prior to the completion of removal
proceedings, the Service attorney may stipulate to a grant of voluntary
departure under section 240B(a) of the Act.
(3) Conditions. (i) The judge may impose such conditions as he or
she deems necessary to ensure the alien's timely departure from the
United States, including the posting of a voluntary departure bond to
be canceled upon proof that the alien has departed the United States
within the time specified. The alien shall be required to present to
[[Page 495]]
the Service, for inspection and photocopying, his or her passport or
other travel documentation sufficient to assure lawful entry into the
country to which the alien is departing, unless:
(A) A travel document is not necessary to return to his or her
native country or to which country the alien is departing; or
(B) The document is already in the possession of the Service.
(ii) The Service may hold the passport or documentation for
sufficient time to investigate its authenticity. If such documentation
is not immediately available to the alien, but the immigration judge is
satisfied that the alien is making diligent efforts to secure it,
voluntary departure may be granted for a period not to exceed 120 days,
subject to the condition that the alien within 60 days must secure such
documentation and present it to the Service. The Service in its
discretion may extend the period within which the alien must provide
such documentation. If the documentation is not presented within the
60-day period or any extension thereof, the voluntary departure order
shall vacate automatically and the alternate order of deportation will
take effect, as if in effect on the date of issuance of the immigration
judge order.
(c) At the conclusion of the removal proceedings. (1) Required
findings. An immigration judge may grant voluntary departure at the
conclusion of the removal proceedings under section 240B(b) of the Act,
if he or she finds that:
(i) The alien has been physically present in the United States for
period of at least one year preceding the date the Notice to Appear was
served under section 239(a) of the Act;
(ii) the alien is, and has been, a person of good moral character
for at least five years immediately preceding the application;
(iii) the alien is not deportable under section 237(a)(2)(A)(iii)
or 237(a)(4) of the Act; and
(iv) the alien has established by clear and convincing evidence
that the alien has the means to depart the United States and has the
intention to do so.
(2) Travel documentation. Except as otherwise provided in paragraph
(b)(3) of this section, the clear and convincing evidence of the means
to depart shall include in all cases presentation by the alien of a
passport or other travel documentation sufficient to assure lawful
entry into the country to which the alien is departing. The Service
shall have full opportunity to inspect and photocopy the documentation,
and to challenge its authenticity or sufficiency before voluntary
departure is granted.
(3) Conditions. The judge may impose such conditions as he or she
deems necessary to ensure the alien's timely departure from the United
States. In all cases under section 240B(b) of the Act, the alien shall
be required to post a voluntary departure bond, in an amount necessary
to ensure that the alien departs within the time specified, but in no
case less than $500. The voluntary departure bond shall be posted with
the district director within 5 business days of the immigration judge's
order granting voluntary departure, and the district director may, at
his or her discretion, hold the alien in custody until the bond is
posted. If the bond is not posted within 5 business days, the voluntary
departure order shall vacate automatically and the alternate order of
removal will take effect on the following day. In order for the bond to
be canceled, the alien must provide proof of departure to the district
director.
(d) Alternate order of removal. Upon granting a request made for
voluntary departure either prior to the completion of proceedings or at
the conclusion of proceedings, the immigration judge shall also enter
an alternate order or removal.
(e) Periods of time. If voluntary departure is granted prior to the
completion of removal proceedings, the immigration judge may grant a
period not to exceed 120 days. If voluntary departure is granted at the
conclusion of proceedings, the immigration judge may grant a period not
to exceed 60 days.
(f) Extension of time to depart. Authority to extend the time
within which to depart voluntarily specified initially by an
immigration judge or the Board is within the sole jurisdiction of the
district director. An immigration judge or the Board may reinstate
voluntary departure in a removal proceeding that has been reopened for
a purpose other than solely making an application for voluntary
departure if reopening was granted prior to the expiration of the
original period of voluntary departure. In no event can the total
period of time, including any extension, exceed 120 days or 60 days as
set forth in section 240B of the Act.
(g) Administrative Appeals. (1) Grants of requests made prior to
the completion of the section 240 removal proceeding. A Service appeal
of a grant of voluntary departure prior to the completion of section
240 removal proceedings shall be limited to the issue of whether the
alien merits the grant of voluntary departure as a matter of
discretion. Such an appeal shall not challenge the number of days of
voluntary departure granted.
(2) At the conclusion of the section 240 removal proceeding. An
appeal of a grant or denial of voluntary departure at the conclusion of
the section 240 removal proceeding shall be limited to the issues of
whether the alien is eligible for a grant of voluntary departure under
the Act and this chapter and whether the alien merits a grant of
voluntary departure as a matter of discretion. Such an appeal shall not
challenge the number of days of voluntary departure granted.
(h) Reinstatement of voluntary departure. An immigration judge or
the Board may reinstate voluntary departure in a removal proceeding
that has been reopened for a purpose other than solely making
application for voluntary departure, if reopening was granted prior to
the expiration of the original period of voluntary departure. In no
event can the total period of time, including any extension, exceed 120
days or 60 days as set forth in section 240B of the Act and paragraph
(a) of this section.
Secs. 240.27-240.29 [Reserved]
Subpart D--Exclusion of Aliens (for Hearings Commenced Prior to
April 1, 1997)
Sec. 240.30 Proceedings prior to April 1, 1997.
Subpart D of 8 CFR part 240 applies to exclusion proceedings
commenced prior to April 1, 1997, pursuant to the former section 236 of
the Act. All references to the Act contained in this subpart are
references to the Act in effect prior to April 1, 1997.
Sec. 240.31 Authority of immigration judges.
In determining cases referred for further inquiry as provided in
section 235 of the Act, immigration judges shall have the powers and
authority conferred upon them by the Act and this chapter. Subject to
any specific limitation prescribed by the Act and this chapter,
immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and
necessary for the disposition of such cases.
Sec. 240.32 Hearing.
(a) Opening. Exclusion hearings shall be closed to the public,
unless the alien at his or her own instance requests that the public,
including the press, be permitted to attend; in that event, the hearing
shall be open, provided that the alien states for the record that he or
she is waiving the requirement in section 236 of the Act that the
inquiry shall be kept separate and apart from the public.
[[Page 496]]
When the hearing is to be open, depending upon physical facilities,
reasonable limitation may be placed upon the number in attendance at
any one time, with priority being given to the press over the general
public. The immigration judge shall ascertain whether the applicant for
admission is the person to whom Form I-122 was previously delivered by
the examining immigration officer as provided in 8 CFR part 235; enter
a copy of such form in evidence as an exhibit in the case; inform the
applicant of the nature and purpose of the hearing; advise him or her
of the privilege of being represented by an attorney of his or her own
choice at no expense to the Government, and of the availability of free
legal services programs qualified under 8 CFR part 3 and organizations
recognized pursuant to Sec. 292.2 of this chapter located in the
district where his or her exclusion hearing is to be held; and shall
ascertain that the applicant has received a list of such programs; and
request him or her to ascertain then and there whether he or she
desires representation; advise him or her that he or she will have a
reasonable opportunity to present evidence in his or her own behalf, to
examine and object to evidence against him or her, and to cross-examine
witnesses presented by the Government; and place the applicant under
oath.
(b) Procedure. The immigration judge shall receive and adduce
material and relevant evidence, rule upon objections, and otherwise
regulate the course of the hearing.
(c) Attorney for the Service. The Service shall assign an attorney
to each case in which an applicant's nationality is in issue and may
assign an attorney to any case in which such assignment is deemed
necessary or advantageous. The duties of the Service attorney include,
but are not limited to, the presentation of evidence and the
interrogation, examination, and cross-examination of the applicant and
other witnesses. Nothing contained herein diminishes the authority of
an immigration judge to conduct proceedings under this part.
(d) Depositions. The procedures specified in Sec. 240.48(e) shall
apply.
(e) Record. The hearing before the immigration judge, including the
testimony, exhibits, applications, proffers, and requests, the
immigration judge's decision, and all written orders, motions, appeals,
and other papers filed in the proceeding shall constitute the record in
the case. The hearing shall be recorded verbatim except for statements
made off the record with the permission of the immigration judge.
Sec. 240.33 Applications for asylum or withholding of deportation.
(a) If the alien expresses fear of persecution or harm upon return
to his or her country of origin or to a country to which the alien may
be deported after a determination of excludability from the United
States pursuant to this subpart, and the alien has not been referred to
the immigration judge by an asylum officer in accordance with
Sec. 208.14(b) of this chapter, the immigration judge shall:
(1) Advise the alien that he may apply for asylum in the United
States or withholding of deportation to that other country; and
(2) Make available the appropriate application forms.
(b) An application for asylum or withholding of deportation must be
filed with the Immigration Court, pursuant to Sec. 208.4(c) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy to the
Department of State pursuant to Sec. 208.11 of this chapter and shall
calendar the case for a hearing. The reply, if any, from the Department
of State, unless classified under the applicable Executive Order, shall
be given to both the applicant and to the trial attorney representing
the government.
(c) Applications for asylum or withholding of deportation so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 after an evidentiary
hearing that is necessary to resolve material factual issues in
dispute. An evidentiary hearing extending beyond issues related to the
basis for a mandatory denial of the application pursuant to
Sec. 208.13(c) of this chapter is not necessary once the immigration
judge has determined that such denial is required.
(1) Evidentiary hearings on applications for asylum or withholding
of deportation will be closed to the public unless the applicant
expressly requests that it be open pursuant to Sec. 236.3 of this
chapter.
(2) Nothing in this section is intended to limit the authority of
the immigration judge properly to control the scope of any evidentiary
hearing.
(3) During the exclusion hearing, the applicant shall be examined
under oath on his or her application and may present evidence and
witnesses on his or her own behalf. The applicant has the burden of
establishing that he or she is a refugee as defined in section
101(a)(42) of the Act pursuant to the standard set forth in Sec. 208.13
of this chapter.
(4) The trial attorney for the government may call witnesses and
present evidence for the record, including information classified under
the applicable Executive Order, provided the immigration judge or the
Board has determined that such information is relevant to the hearing.
The applicant shall be informed when the immigration judge receives
such classified information. The agency that provides the classified
information to the immigration judge may provide an unclassified
summary of the information for release to the applicant whenever it
determines it can do so consistently with safeguarding both the
classified nature of the information and its source. The summary should
be as detailed as possible, in order that the applicant may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state that such information
is material to the decision.
(d) The decision of an immigration judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and
to the trial attorney for the government. An adverse decision will
state why asylum or withholding of deportation was denied.
Sec. 240.34 Renewal of application for adjustment of status under
section 245 of the Act.
An adjustment application by an alien paroled under section
212(d)(5) of the Act, which has been denied by the district director,
may be renewed in exclusion proceedings under section 236 of the Act
(as in effect prior to April 1, 1997) before an immigration judge under
the following two conditions: first, the denied application must have
been properly filed subsequent to the applicant's earlier inspection
and admission to the United States; and second, the applicant's later
absence from and return to the United States must have been under the
terms of an advance parole authorization on Form I-512 granted to
permit the applicant's absence and return to pursue the previously
filed adjustment application.
Sec. 240.35 Decision of the immigration judge; notice to the
applicant.
(a) Decision. The immigration judge shall inform the applicant of
his or her decision in accordance with Sec. 3.37 of this chapter.
(b) Advice to alien ordered excluded. An alien ordered excluded
shall be furnished with Form I-296, Notice to Alien Ordered Excluded by
Immigration Judge, at the time of an oral decision by
[[Page 497]]
the immigration judge or upon service of a written decision.
(c) Holders of refugee travel documents. Aliens who are holders of
valid unexpired refugee travel documents may be ordered excluded only
if they are found to be inadmissible under section 212(a)(2),
212(a)(3), or 212(a)(6)(E) of the Act, and it is determined that on the
basis of the acts for which they are inadmissible there are compelling
reasons of national security or public order for their exclusion. If
the immigration judge finds that the alien is inadmissible but
determines that there are no compelling reasons of national security or
public order for exclusion, the immigration judge shall remand the case
to the district director for parole.
Sec. 240.36 Finality of order.
The decision of the immigration judge shall become final in
accordance with Sec. 3.37 of this chapter.
Sec. 240.37 Appeals.
Except for temporary exclusions under section 235(c) of the Act, an
appeal from a decision of an Immigration Judge under this part may be
taken by either party pursuant to Sec. 3.38 of this chapter.
Sec. 240.38 Fingerprinting of excluded aliens.
Every alien 14 years of age or older who is excluded from admission
to the United States by an immigration judge shall be fingerprinted,
unless during the preceding year he or she has been fingerprinted at an
American consular office.
Sec. 240.39 Reopening or reconsideration.
Except as otherwise provided in this section, a motion to reopen or
reconsider shall be subject to the requirements of Sec. 103.5 of this
chapter. The immigration judge may upon his or her own motion, or upon
motion of the trial attorney or the respondent, reopen or reconsider
any case in which he or she had made a decision, unless jurisdiction in
the case is vested in the Board of Immigration Appeals under 8 CFR part
3. An order by the immigration judge granting a motion to reopen may be
made on Form I-328. A motion to reopen will not be granted unless the
immigration judge is satisfied that evidence sought to be offered is
material and was not available and could not have been discovered or
presented at the hearing; nor will any motion to reopen for the purpose
of providing the respondent with an opportunity to make an application
under Sec. 242.17 of this chapter be granted if respondent's right to
make such application were fully explained to him or her by the
immigration judge and he or she was afforded an opportunity to do so at
the hearing, unless circumstances have arisen thereafter on the basis
of which the request is being made. The filing of a motion under this
section with an immigration judge shall not serve to stay the execution
of an outstanding decision; execution shall proceed unless the
immigration judge who has jurisdiction over the motion specifically
grants a stay of deportation. The immigration judge may stay
deportation pending his or her determination of the motion and also
pending the taking and disposition of an appeal from such
determination.
Subpart E--Proceedings To Determine Deportability of Aliens in the
United States: Hearing and Appeal (for Proceedings Commenced Prior
to April 1, 1997)
Sec. 240.40 Proceedings commenced prior to April 1, 1997.
Subpart E of 8 CFR part 240 applies only to deportation proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart pertain to the Act as in effect prior to April 1, 1997.
Sec. 240.41 Immigration Judges.
(a) Authority. In any proceeding conducted under this part the
immigration judge shall have the authority to determine deportability
and to make decisions, including orders of deportation, as provided by
section 242(b) and 242B of the Act; to reinstate orders of deportation
as provided by section 242(f) of the Act; to determine applications
under sections 208, 212(k), 241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245,
and 249 of the Act; to determine the country to which an alien's
deportation will be directed in accordance with section 243(a) of the
Act; to order temporary withholding of deportation pursuant to section
243(h) of the Act; and to take any other action consistent with
applicable law and regulations as may be appropriate. An immigration
judge may certify his or her decision in any case to the Board of
Immigration Appeals when it involves an unusually complex or novel
question of law or fact. Nothing contained in this part shall be
construed to diminish the authority conferred on immigration judges
under section 103 of the Act.
(b) Withdrawal and substitution of immigration judges. The
immigration judge assigned to conduct the hearing shall at any time
withdraw if he deems himself disqualified. If an immigration judge
becomes unavailable to complete his or her duties within a reasonable
time, or if at any time the respondent consents to a substitution,
another immigration judge may be assigned to complete the case. The new
immigration judge shall familiarize himself or herself with the record
in the case and shall state for the record that he has done so.
Sec. 240.42 Representation by counsel.
The respondent may be represented at the hearing by an attorney or
other representative qualified under 8 CFR part 292.
Sec. 240.43 Incompetent respondents.
When it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the guardian, near relative, or
friend who was served with a copy of the order to show cause shall be
permitted to appear on behalf of the respondent. If such a person
cannot reasonably be found or fails or refuses to appear, the custodian
of the respondent shall be requested to appear on behalf of the
respondent.
Sec. 240.44 Interpreter.
Any person acting as interpreter in a hearing before an immigration
judge under this part shall be sworn to interpret and translate
accurately, unless the interpreter is an employee of the United States
Government, in which event no such oath shall be required.
Sec. 240.45 Postponement and adjournment of hearing.
After the commencement of the hearing, the immigration judge may
grant a reasonable adjournment either at his or her own instance or,
for good cause shown, upon application by the respondent or the
Service.
Sec. 240.46 Evidence.
(a) Sufficiency. A determination of deportability shall not be
valid unless it is found by clear, unequivocal, and convincing evidence
that the facts alleged as grounds for deportation are true.
(b) Use of prior statements. The immigration judge may receive in
evidence any oral or written statement that is material and relevant to
any issue in the case previously made by the respondent or any other
person during any investigation, examination, hearing, or trial.
(c) Testimony. Testimony of witnesses appearing at the hearing
shall be under oath or affirmation administered by the immigration
judge.
(d) Depositions. The immigration judge may order the taking of
depositions pursuant to Sec. 3.35 of this chapter.
[[Page 498]]
Sec. 240.47 Contents of record.
The hearing before the immigration judge, including the testimony,
exhibits, applications, proffers, and requests, the immigration judge's
decision, and all written orders, motions, appeals, briefs, and other
papers filed in the proceedings shall constitute the record in the
case. The hearing shall be recorded verbatim except for statements made
off the record with the permission of the immigration judge. In his or
her discretion, the immigration judge may exclude from the record any
arguments made in connection with motions, applications, requests, or
objections, but in such event the person affected may submit a brief.
Sec. 240.48 Hearing.
(a) Opening. The immigration judge shall advise the respondent of
his or her right to representation, at no expense to the Government, by
counsel of his or her own choice authorized to practice in the
proceedings and require him or her to state then and there whether he
desires representations; advise the respondent of the availability of
free legal services programs qualified under 8 CFR part 3 and
organizations recognized pursuant to Sec. 292.2 of this chapter,
located in the district where the deportation hearing is being held;
ascertain that the respondent has received a list of such programs, and
a copy of Form I-618, Written Notice of Appeal Rights; advise the
respondent that he or she will have a reasonable opportunity to examine
and object to the evidence against him, to present evidence in his or
her own behalf and to cross-examine witnesses presented by the
Government; place the respondent under oath; read the factual
allegations and the charges in the order to show cause to the
respondent and explain them in nontechnical language, and enter the
order to show cause as an exhibit in the record. Deportation hearings
shall be open to the public, except that the immigration judge may, in
his or her discretion and for the purpose of protecting witnesses,
respondents, or the public interest, direct that the general public or
particular individuals shall be excluded from the hearing in any
specific case. Depending upon physical facilities, reasonable
limitation may be placed upon the number in attendance at any one time,
with priority being given to the press over the general public.
(b) Pleading by respondent. The immigration judge shall require the
respondent to plead to the order to show cause by stating whether he or
she admits or denies the factual allegations and his or her
reportability under the charges contained therein. If the respondent
admits the factual allegations and admits his or her deportability
under the charges and the immigration judge is satisfied that no issues
of law or fact remain, the immigration judge may determine that
deportability as charged has been established by the admissions of the
respondent. The immigration judge shall not accept an admission of
deportability from an unrepresented respondent who is incompetent or
under age 16 and is not accompanied by a guardian, relative, or friend;
nor from an officer of an institution in which a respondent is an
inmate or patient. When, pursuant to this paragraph, the immigration
judge may not accept an admission of deportability, he or she shall
direct a hearing on the issues.
(c) Issues of deportability. When deportability is not determined
under the provisions of paragraph (b) of this section, the immigration
judge shall request the assignment of a trial attorney, and shall
receive evidence as to any unresolved issues, except that no further
evidence need be received as to any facts admitted during the pleading.
The respondent shall provide a court certified copy of a Judicial
Recommendation Against Deportation (JRAD) to the special inquiry
officer when such recommendation will be the basis of denying any
charge(s) brought by the Service in the proceedings against the
respondent. No JRAD is effective against a charge of deportability
under section 241(a)(11) of the Act or if the JRAD was granted on or
after November 29, 1990.
(d) Additional charges. The Service may at any time during a
hearing lodge additional charges of deportability, including factual
allegations, against the respondent. Copies of the additional factual
allegations and charges shall be submitted in writing for service on
the respondent and entry as an exhibit in the record. The immigration
judge shall read the additional factual allegations and charges to the
respondent and explain them to him or her. The immigration judge shall
advise the respondent if he or she is not represented by counsel that
he or she may be so represented and also that he or she may have a
reasonable time within which to meet the additional factual allegations
and charges. The respondent shall be required to state then and there
whether he or she desires a continuance for either of these reasons.
Thereafter, the provisions of paragraph (b) of this section shall apply
to the additional factual allegations and lodged charges.
Sec. 240.49 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. The respondent may apply to the immigration judge
for suspension of deportation under section 244(a) of the Act; for
adjustment of status under section 245 of the Act, or under section 1
of the Act of November 2, 1966, or under section 101 or 104 of the Act
of October 28, 1977; or for the creation of a record of lawful
admission for permanent residence under section 249 of the Act. The
application shall be subject to the requirements of 8 CFR parts 240,
245, and 249. The approval of any application made to the immigration
judge under section 245 of the Act by an alien spouse (as defined in
section 216(g)(1) of the Act) or by an alien entrepreneur (as defined
in section 216A(f)(1) of the Act), shall result in the alien's
obtaining the status of lawful permanent resident on a conditional
basis in accordance with the provisions of section 216 or 216A of the
Act, whichever is applicable. However, the Petition to Remove the
Conditions on Residence required by section 216(c) of the Act of the
Petition by Entrepreneur to Remove Conditions required by section
216A(c) of the Act shall be made to the director in accordance with 8
CFR part 216. In conjunction with any application for creation of
status of an alien lawfully admitted for permanent residence made to an
immigration judge, if the respondent is inadmissible under any
provision of section 212(a) of the Act and believes that he or she
meets the eligibility requirements for a waiver of the ground of
inadmissibility, he or she may apply to the immigration judge for such
waiver. The immigration judge shall inform the respondent of his or her
apparent eligibility to apply for any of the benefits enumerated in
this paragraph and shall afford the respondent an opportunity to make
application therefor during the hearing. In exercising discretionary
power when considering an application under this paragraph, the
immigration judge may consider and base the decision on information not
contained in the record and not made available for inspection by the
respondent, provided the Commissioner has determined that such
information is relevant and is classified under the applicable
Executive Order as requiring protection from unauthorized disclosure in
the interest of national security. Whenever the immigration judge
believes that he or she can do so while safeguarding both the
information and its source, the immigration judge should inform the
respondent of the general nature of the information in
[[Page 499]]
order that the respondent may have an opportunity to offer opposing
evidence. A decision based in whole or in part on such classified
information shall state that the information is material to the
decision.
(b) Voluntary departure. The respondent may apply to the
immigration judge for voluntary departure in lieu of deportation
pursuant to section 244(e) of the Act and Sec. 240.56.
(c) Applications for asylum or withholding of deportation. (1) The
immigration judge shall notify the respondent that if he or she is
finally ordered deported, his or her deportation will in the first
instance be directed pursuant to section 243(a) of the Act to the
country designated by the respondent and shall afford him an
opportunity then and there to make such designation. The immigration
judge shall then specify and state for the record the country, or
countries in the alternative, to which respondent's deportation will be
directed pursuant to section 243(a) of the Act if the country of his or
her designation will not accept him or her into its territory, or fails
to furnish timely notice of acceptance, or if the respondent declines
to designate a country.
(2) If the alien expresses fear of persecution or harm upon return
to any of the countries to which the alien might be deported pursuant
to paragraph (c)(1) of this section, and the alien has not previously
filed on application for asylum or withholding of deportation that has
been referred to the immigration judge by an asylum officer in
accordance with Sec. 208.14(b) of this chapter, the immigration judge
shall:
(i) Advise the alien that he may apply for asylum in the United
States or withholding of deportation to those countries; and
(ii) Make available the appropriate application forms.
(3) An application for asylum or withholding of deportation must be
filed with the Immigration Court, pursuant to Sec. 208.4(b) of this
chapter. Upon receipt of an application that has not been referred by
an asylum officer, the Immigration Court shall forward a copy to the
Department of State pursuant to Sec. 208.11 of this chapter and shall
calendar the case for a hearing. The reply, if any, of the Department
of State, unless classified under the applicable Executive Order, shall
be given to both the applicant and to the trial attorney representing
the government.
(4) Applications for asylum or withholding of deportation so filed
will be decided by the immigration judge pursuant to the requirements
and standards established in 8 CFR part 208 after an evidentiary
hearing that is necessary to resolve factual issues in dispute. An
evidentiary hearing extending beyond issues related to the basis for a
mandatory denial of the application pursuant to Sec. 208.13 or
Sec. 208.16 of this chapter is not necessary once the immigration judge
has determined that such a denial is required.
(i) Evidentiary hearings on applications for asylum or withholding
of deportation will be open to the public unless the applicant
expressly requests that it be closed.
(ii) Nothing in this section is intended to limit the authority of
the immigration judge properly to control the scope of any evidentiary
hearing.
(iii) During the deportation hearing, the applicant shall be
examined under oath on his or her application and may present evidence
and witnesses in his or her own behalf. The applicant has the burden of
establishing that he or she is a refugee as defined in section
101(a)(42) of the Act pursuant to the standard set forth in Sec. 208.13
of this chapter.
(iv) The trial attorney for the government may call witnesses and
present evidence for the record, including information classified under
the applicable Executive Order, provided the immigration judge or the
Board has determined that such information is relevant to the hearing.
When the immigration judge receives such classified information he or
she shall inform the applicant. The agency that provides the classified
information to the immigration judge may provide an unclassified
summary of the information for release to the applicant, whenever it
determines it can do so consistently with safeguarding both the
classified nature of the information and its source. The summary should
be as detailed as possible, in order that the applicant may have an
opportunity to offer opposing evidence. A decision based in whole or in
part on such classified information shall state whether such
information is material to the decision.
(5) The decision of an immigration judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and
to the trial attorney for the government. An adverse decision will
state why asylum or withholding of deportation was denied.
(d) Application for relief under sections 241(a)(1)(H) and
241(a)(1)(E)(iii) of the Act. The respondent may apply to the
immigration judge for relief from deportation under sections
241(a)(1)(H) and 241(a)(1)(E)(iii) of the Act.
(e) General. An application under this section shall be made only
during the hearing and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does not
admit his alienage or deportability. However, nothing in this section
shall prohibit the Service from using information supplied in an
application for asylum or withholding of deportation submitted to an
asylum officer pursuant to Sec. 208.2 of this chapter on or after
January 4, 1995, as the basis for issuance of an order to show cause or
a notice to appear to establish alienage or deportability in a case
referred to an immigration judge under Sec. 208.14(b) of this chapter.
The respondent shall have the burden of establishing that he or she is
eligible for any request benefit or privilege and that it should be
granted in the exercise of discretion. The respondent shall not be
required to pay a fee on more than one application within paragraphs
(a) and (c) of this section, provided that the minimum fee imposed when
more than one application is made shall be determined by the cost of
the application with the highest fee. Nothing contained herein is
intended to foreclose the respondent from applying for any benefit or
privilege which he or she believes himself or herself eligible to
receive in proceedings under this part.
Sec. 240.50 Decision of the immigration judge.
(a) Contents. The decision of the immigration judge may be oral or
written. Except when deportability is determined on the pleadings
pursuant to Sec. 240.48(b), the decision of the immigration judge shall
include a finding as to deportability. The formal enumeration of
findings is not required. The decision shall also contain the reasons
for granting or denying the request. The decision shall be concluded
with the order of the immigration judge.
(b) Summary decision. Notwithstanding the provisions of paragraph
(a) of this section, in any case where deportability is determined on
the pleadings pursuant to Sec. 240.48(b) and the respondent does not
make an application under Sec. 240.49, or the respondent applies for
voluntary departure only and the immigration judge grants the
application, the immigration judge may enter a summary decision on Form
EOIR-7, Summary Order of Deportation, if deportation is
[[Page 500]]
ordered, or on Form EOIR-6, Summary Order of Voluntary Departure, if
voluntary departure is granted with an alternate order of deportation.
(c) Order of the immigration judge. The order of the immigration
judge shall direct the respondent's deportation, or the termination of
the proceedings, or such other disposition of the case as may be
appropriate. When deportation is ordered, the immigration judge shall
specify the country, or countries in the alternate, to which
respondent's deportation shall be directed. The immigration judge is
authorized to issue orders in the alternative or in combination as he
or she may deem necessary.
Sec. 240.51 Notice of decision.
(a) Written decision. A written decision shall be served upon the
respondent and the trial attorney, together with the notice referred to
in Sec. 3.3 of this chapter. Service by mail is complete upon mailing.
(b) Oral decision. An oral decision shall be stated by the
immigration judge in the presence of the respondent and the trail
attorney, if any, at the conclusion of the hearing. Unless appeal from
the decision is waived, the respondent shall be furnished with Form
EOIR-26, Notice of Appeal, and advised of the provisions of
Sec. 240.53. A typewritten copy of the oral decision shall be furnished
at the request of the respondent or the trial attorney.
(c) Summary decision. When the immigration judge renders a summary
decision as provided in Sec. 240.51(b), he or she shall serve a copy
thereof upon the respondent at the conclusion of the hearing. Unless
appeal from the decision is waived, the respondent shall be furnished
with Form EOIR-26, Notice of Appeal, and advised of the provisions of
Sec. 240.54.
Sec. 240.52 Finality of order.
The decision of the immigration judge shall become final in
accordance with Sec. 3.39 of this chapter.
Sec. 240.53 Appeals.
(a) Pursuant to 8 CFR part 3, an appeal shall lie from a decision
of an immigration judge to the Board, except that no appeal shall lie
from an order of deportation entered in absentia. The procedures
regarding the filing of a Form EOIR-26, Notice of Appeal, fees, and
briefs are set forth in Secs. 3.3, 3.31, and 3.38 of this chapter. An
appeal shall be filed within 30 calendar days after the mailing of a
written decision, the stating of an oral decision, or the service of a
summary decision. The filing date is defined as the date of receipt of
the Notice of Appeal by the Board. The reasons for the appeal shall be
stated in the Form EOIR-26, Notice of Appeal, in accordance with the
provisions of Sec. 3.3(b) of this chapter. Failure to do so may
constitute a ground for dismissal of the appeal by the Board pursuant
to Sec. 3.1(d)(1-a) of this chapter.
(b) Prohibited appeals; legalization or applications. An alien
respondent defined in Sec. 245a.2(c)(6) or (7) of this chapter who
fails to file an application for adjustment of status to that of a
temporary resident within the prescribed period(s), and who is
thereafter found to be deportable by decision of an immigration judge,
shall not be permitted to appeal the finding of deportability based
solely on refusal by the immigration judge to entertain such an
application in deportation proceedings.
Sec. 240.54 Proceedings under section 242(f) of the Act.
(a) Order to show cause. In the case of an alien within the
provisions of section 242(f) of the Act, the order to show cause shall
charge him or her with deportability under section 242(f) of the Act.
The prior order of deportation and evidence of the execution thereof,
properly identified, shall constitute prima facie cause for
deportability under this section.
(b) Applicable procedure. Except as otherwise provided in this
section, proceedings under section 242(f) of the Act shall be conducted
in general accordance with the rules prescribed in this part.
(c) Deportability. In determining the deportability of an alien
alleged to be within the purview of paragraph (a) of this section, the
issues shall be limited to solely to a determination of the identity of
the respondent, i.e., whether the respondent is in fact an alien who
was previously deported, or who departed while an order of deportation
was outstanding; whether the respondent was previously deported as a
member of any of the classes described in section 241(a)(2),(3) or (4)
of the Act; and whether respondent has unlawfully reentered the United
States.
(d) Order. If deportability as charged in the order to show cause
is established, the Immigration Judge shall order that the respondent
be deported under the previous order of deportation in accordance with
section 242(f) of the Act.
(e) Service counsel; additional charges. When Service counsel is
assigned to a proceeding under this section and additional charges are
lodged against the respondent, the provisions of paragraphs (c) and (d)
of this section shall cease to apply.
Subpart F--Suspension of Deportation and Voluntary Departure (for
Proceedings Commenced Prior to April 1, 1997)
Sec. 240.55 Proceedings commenced prior to April 1, 1997.
Subpart F of 8 CFR part 240 applies to deportation proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart are references to the Act in effect prior to April 1,
1997.
Sec. 240.56 Application.
Notwithstanding any other provision of this chapter, an alien who
is deportable because of a conviction on or after November 18, 1988,
for an aggravated felony as defined in section 101(a)(43) of the Act,
shall not be eligible for voluntary departure as prescribed in 8 CFR
part 240 and section 244 of the Act. Pursuant to subpart F of this part
and section 244 of the Act, an immigration judge may authorized the
suspension of an alien's deportation; or, if the alien established that
he or she is willing and has the immediate means with which to depart
promptly from the United States, an immigration judge may authorized
the alien to depart voluntarily from the United States in lieu of
deportation within such time as may be specified by the immigration
judge when first authorizing voluntary departure, and under such
conditions as the district director shall direct. An application for
suspension of deportation shall be made on Form EOIR-40.
Sec. 240.57 Extension of time to depart.
Authority to reinstate or extend the time within which to depart
voluntarily specified initially by an immigration judge or the Board is
within the sole jurisdiction of the district director, except that an
immigration judge or the Board may reinstate voluntary departure in a
deportation proceeding that has been reopened for a purpose other than
solely making an application for voluntary departure. A request by an
alien for reinstatement or an extension of time within which to depart
voluntarily shall be filed with the district director having
jurisdiction over the alien's place of residence. Written notice of the
district director's decision shall be served upon the alien and no
appeal may be taken therefrom.
[[Page 501]]
Subpart G--Civil Penalties for Failure To Depart [Reserved]
107. Part 241 is revised to read as follows:
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
Subpart A--Post-Hearing Detention and Removal
Sec.
241.1 Final order of removal.
241.2 Warrant of removal.
241.3 Detention of aliens during removal period.
241.4 Continued detention beyond the removal period.
241.5 Conditions of release after removal period.
241.6 Administrative stay of removal.
241.7 Self-removal.
241.8 Reinstatement of removal orders.
241.9 Notice to transportation line of inadmissible alien's
removal.
241.10 Special care and attention of removable aliens.
241.11 Detention and removal of stowaways.
241.12 Nonapplication of costs of detention and maintenance.
Subpart B--Deportation of Excluded Aliens (for Hearings Commenced Prior
to April 1, 1997).
241.20 Proceedings commenced prior to April 1, 1997.
241.21 Stay of deportation of excluded alien.
241.22 Notice to surrender for deportation.
241.23 Cost of maintenance not assessed.
241.24 Notice to transportation line of alien's exclusion.
241.25 Deportation.
Subpart C--Deportation of Aliens in the United States (for Hearings
Commenced Prior to April 1, 1997)
241.30 Proceedings commenced prior to April 1, 1997.
241.31 Final order of deportation.
241.32 Warrant of deportation.
241.33 Expulsion.
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
Subpart A--Post-hearing Detention and Removal
Sec. 241.1 Final order of removal.
An order of removal made by the immigration judge at the conclusion
of proceedings under section 240 of the Act shall become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of
the subsequent decision ordering removal;
(e) If an immigration judge orders an alien removed in the alien's
absence, immediately upon entry of such order; or
(f) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of the
voluntary departure period except where the respondent has filed a
timely appeal with the Board. In such a case, the order shall become
final upon an order of removal by the Board or the Attorney General, or
upon overstay of any voluntary departure period granted or reinstated
by the Board or the Attorney General.
Sec. 241.2 Warrant of removal.
(a) Issuance of a warrant of removal. A Form I-205, Warrant of
Removal, based upon the final administrative removal order in the
alien's case shall be issued by a district director. The district
director shall exercise the authority contained in section 241 of the
Act to determine at whose expense the alien shall be removed and
whether his or her mental or physical condition requires personal care
and attention en route to his or her destination.
(b) Execution of the warrant of removal. Any officer authorized by
Sec. 287.5(e) of this chapter to execute administrative warrants of
arrest may execute a warrant of removal.
Sec. 241.3 Detention of aliens during removal period.
(a) Assumption of custody. Once the removal period defined in
section 241(a)(1) of the Act begins, an alien in the United States will
be taken into custody pursuant to the warrant of removal.
(b) Cancellation of bond. Any bond previously posted will be
canceled unless it has been breached or is subject to being breached.
(c) Judicial stays. The filing of (or intention of file) a petition
or action in a Federal court seeking review of the issuance or
execution of an order of removal shall not delay execution of the
Warrant of Removal except upon an affirmative order of the court.
Sec. 241.4 Continued detention beyond the removal period.
(a) Continuation of custody for inadmissible or criminal aliens.
The district director may continue in custody any alien inadmissible
under section 212(a) of the Act or removable under section
237(a)(1)(C), 237(a)(2), or 237(a)(4) of the Act, or who presents a
significant risk of noncompliance with the order of removal, beyond the
removal period, as necessary, until removal from the United States. If
such an alien demonstrates by clear and convincing evidence that the
release would not pose a danger to the community or a significant
flight risk, the district director may, in the exercise of discretion,
order the alien released from custody on such conditions as the
district director may prescribe, including bond in an amount sufficient
to ensure the alien's appearance for removal. The district may
consider, but is not limited to considering, the following factors:
(1) The nature and seriousness of the alien's criminal convictions;
(2) Other criminal history;
(3) Sentence(s) imposed and time actually served;
(4) History of failures to appear for court (defaults);
(5) Probation history;
(6) Disciplinary problems while incarcerated;
(7) Evidence of rehabilitative effort or recidivism;
(8) Equities in the United States; and
(9) Prior immigration violations and history.
(b) Continuation of custody for other aliens. Any alien removable
under any section of the Act other than section 212(a), 237(a)(1)(C),
237(a)(2), or 237(a)(4) may be detained beyond the removal period, in
the discretion of the district director, unless the alien demonstrates
to the satisfaction of the district director that he or she is likely
to comply with the remvoal order and is not a risk to the community.
Sec. 241.5 Conditions of release after removal period.
(a) Order of supervision. An alien released pursuant to Sec. 241.4
shall be released pursuant to an order of supervision. A district
director, acting district director, deputy district director, assistant
district director for investigations, assistant district director for
detention and deportation, or officer in charge may issue an order of
supervision on Form I-220B. The order shall specify conditions of
supervision including, but not limited to, the following:
(1) A requirement that the alien report to a specified officer
periodically and provide relevant information under oath as directed;
(2) A requirement that the alien continue efforts to obtain a
travel document and assist the Service in obtaining a travel document;
(3) A requirement that the alien report as directed for a mental or
physical examinations as directed by the Service;
[[Page 502]]
(4) A requirement that the alien obtain advance approval of travel
beyond previously specified times and distances; and
(5) A requirement that the alien provide the Service with written
notice of any change of address within five days of the change.
(b) Posting of bond. An officer authorized to issue an order of
supervision may require the posting of a bond in an amount determined
by the officer to be sufficient to ensure compliance with the
conditions of the order, including surrender for removal.
(c) Employment authorization. An officer authorized to issue an
order of supervision may, in his or her discretion, grant employment
authorization to an alien released under an order of supervision if the
officer specifically finds that:
(1) The alien cannot be removed because no country will accept the
alien; or
(2) The removal of the alien is impracticable or contrary to public
interest.
Sec. 241.6 Administrative stay of removal.
Any request of an alien under a final order of deportation or
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction
over the place where the alien is at the time of filing. The district
director, in his or her discretion and in consideration of factors such
as are listed in Sec. 212.5 of this chapter and section 241(c) of the
Act, may grant a stay of removal or deportation for such time and under
such conditions as he or she may deem appropriate. Neither the request
nor the failure to receive notice of disposition of the request shall
delay removal or relieve the alien from strict compliance with any
outstanding notice to surrender for deportation or removal. Denial by
the district director of a request for a stay is not appealable, but
such denial shall not preclude an immigration judge or the Board from
granting a stay in connection with a motion to reopen or a motion to
reconsider as provided in 8 CFR part 3. The Service shall take all
reasonable steps to comply with a stay granted by an immigration judge
or the Board. However, such a stay shall cease to have effect if
granted (or communicated) after the alien has been placed aboard an
aircraft or other conveyance for removal and the normal boarding has
been completed.
Sec. 241.7 Self-removal.
A district director may permit an alien ordered removed (including
an alien ordered excluded or deported in proceedings prior to April 1,
1997) to depart at his or her own expense to a destination of his or
her own choice. Any alien who has departed from the United States while
an order of deportation or removal is outstanding shall be considered
to have been deported, excluded and deported, or removed, except that
an alien who departed before the expiration of the voluntary departure
period granted in connection with an alternate order of deportation or
removal shall not be considered to have been so deported or removed.
Sec. 241.8 Reinstatement of removal orders.
(a) Applicability. An alien who illegally reenters the United
States after having been removed, or having departed voluntarily, while
under an order of exclusion, deportation, or removal shall be removed
from the United States by reinstating the prior order. The alien has no
right to a hearing before an immigration judge in such circumstances.
In establishing whether an alien is subject to this section, the
immigration officer shall determine the following:
(1) Whether the alien has been subject to a prior order of removal.
The immigration officer must obtain the prior order of exclusion,
deportation, or removal relating to the alien.
(2) The identity of the alien, i.e., whether the alien is in fact
an alien who was previously removed, or who departed voluntarily while
under an order of exclusion, deportation, or removal. In disputed
cases, verification of identity shall be accomplished by a comparison
of fingerprints between those of the previously excluded, deported, or
removed alien contained in Service records and those of the subject
alien. In the absence of fingerprints in a disputed case the alien
shall not be removed pursuant to this paragraph.
(3) Whether the alien unlawfully reentered the United States. In
making this determination, the officer shall consider all relevant
evidence, including statements made by the alien and any evidence in
the alien's possession. The immigration officer shall attempt to verify
an alien's claim, if any, that he or she was lawfully admitted, which
shall include a check of Service data systems available to the officer.
(b) Notice. If an officer determines that an alien is subject to
removal under this section, he or shall provide the alien with written
notice of his or her determination. The officer shall advise the alien
that he or she may make a written or oral statement contesting the
determination. If the alien wishes to make such a statement, the
officer shall allow the alien to do so and shall consider whether the
alien's statement warrants reconsideration of the determination.
(c) Order. If the requirements of paragraph (a) of this section are
met, the alien shall be removed under the previous order of exclusion,
deportation, or removal in accordance with section 241(a)(5) of the
Act.
(d) Exception for withholding of removal. If an alien whose prior
order of removal has been reinstated under this section expresses a
fear of returning to the country designated in that order, the alien
shall be immediately referred to an asylum officer to determine whether
the alien's removal to that country must be withheld under section
241(b)(3) of the Act. The alien's claim will be granted or denied by an
asylum officer in accordance with Sec. 208.16 of this chapter. If the
alien has previously had a claim to withholding of deportation or
removal denied, then that decision shall prevail unless the alien can
establish the existence of changed circumstances that materially affect
the alien's eligibility for withholding. The alien's case shall not be
referred to an immigration judge, and there is no appeal from the
decision of the asylum officer. If the alien is found to merit
withholding of removal, the Service shall not enforce the reinstated
order.
(e) Execution of reinstated order. Execution of the reinstated
order of removal and detention of the alien shall be administered in
accordance with this part.
Sec. 241.9 Notice to transportation line of alien's removal.
(a) An alien who has been ordered removed shall, immediately or as
promptly as the circumstances permit, be offered for removal to the
owner, agent, master, commanding officer, person in charge, purser, or
consignee of the vessel or aircraft on which the alien is to be
removed, as determined by the district director, with a written notice
specifying the cause of inadmissibility or deportability, the class of
travel in which such alien arrived and is to be removed, and with the
return of any documentation that will assist in effecting his or her
removal. If special care and attention are required, the provisions of
Sec. 241.10 shall apply.
(b) Failure of the carrier to accept for removal an alien who has
been ordered removed shall result in the carrier being assessed any
costs incurred by the Service for detention after the carrier's failure
to accept the alien for removal, including the cost of any
transportation
[[Page 503]]
as required under section 241(e) of the Act. The User Fee Account shall
not be assessed for expenses incurred because of the carrier's
violation of the provisions of section 241 of the Act and this
paragraph. The Service will, at the carrier's option, retain custody of
the alien for an additional 7 days beyond the date of the removal
order. If, after the third day of this additional 7-day period, the
carrier has not made all the necessary transportation arrangements for
the alien to be returned to his or her point of embarkation by the end
of the additional 7-day period, the Service will make the arrangements
and bill the carrier for its costs.
241.10 Special care and attention of removable aliens.
When, in accordance with section 241(c)(3) of the Act, a
transportation line is responsible for the expenses of an inadmissible
or deportable alien's removal, and the alien requires special care and
attention, the alien shall be delivered to the owner, agent, master,
commanding officer, person in charge, purser, or consignee of the
vessel or aircraft on which the alien will be removed, who shall be
given Forms I-287, I-287A, and I-287B. The reverse of Form I-287A shall
be signed by the officer of the vessel or aircraft to whom the alien
has been delivered and immediately returned to the immigration officer
effecting delivery. Form I-287B shall be retained by the receiving
officer and subsequently filled out by the agents or persons therein
designated and returned by mail to the district director named on the
form. The transportation line shall at its own expense forward the
alien from the foreign port of disembarkation to the final destination
specified on Form I-287. The special care and attention shall be
continued to such final destination, except when the foreign public
officers decline to allow such attendant to proceed and they take
charge of the alien, in which case this fact shall be recorded by the
transportation line on the reverse of Form I-287B. If the
transportation line fails, refuses, or neglects to provide the
necessary special care and attention or comply with the directions of
Form I-287, the district director shall thereafter and without notice
employ suitable persons, at the expense of the transportation line, and
effect such removal.
Sec. 241.11 Detention and removal of stowaways.
(a) Presentation of stowaways. The owner, agent, master, commanding
officer, charterer, or consignee of a vessel or aircraft (referred to
in this section as the carrier) bringing any alien stowaway to the
United States is required to detain the stowaway on board the vessel or
aircraft, at the expense of the owner of the vessel or aircraft, until
completion of the inspection of the alien by an immigration officer. If
detention on board the vessel or aircraft pending inspection is not
possible, the carrier shall advise the Service of this fact without
delay, and the Service may authorize that the carrier detain the
stowaway at another designated location, at the expense of the owner,
until the immigration officer arrives. No notice to detain the alien
shall be required. Failure to detain an alien stowaway pending
inspection shall result in a civil penalty under section 243(c)(1)(A)
of the Act. The owner, agent, master, commanding officer, charterer, or
consignee of a vessel or aircraft must present the stowaway for
inspection, along with any documents or evidence of identity or
nationality in the possession of the alien or obtained by the carrier
relating to the alien stowaway, and must provide any available
information concerning the alien's boarding or apprehension.
(b) Removal of stowaways from vessel or aircraft for medical
treatment. The district director may parole an alien stowaway into the
United States for medical treatment, but the costs of detention and
treatment of the alien stowaway shall be at the expense of the owner of
the vessel or aircraft, and such removal of the stowaway from the
vessel or aircraft does not relieve the carrier of the requirement to
remove the stowaway from the United States once such medical treatment
has been completed.
(c) Repatriation of stowaways. (1) Requirements of carrier.
Following inspection, an immigration officer may order the owner,
agent, master, commanding officer, charterer, or consignee of a vessel
or aircraft bringing any alien stowaway to the United States to remove
the stowaway on the vessel or aircraft of arrival. If the owner, agent,
master, commanding officer, cahrterer, or consignee requests that he or
she be allowed to remove the stowaway by other means, the Service shall
consider any such request, provided the carrier has obtained, or will
obtain in a timely manner, any necessary travel documents and has made
or will make all transportation arrangements. The owner, agent, master,
commanding officer, charterer, or consignee shall transport the
stowaway or arrange for secure escort of the stowaway to the vessel or
aircraft of departure to ensure that the stowaway departs the United
States. All expenses relating to removal shall be borne by the owner.
Other than requiring compliance with the detention and removal
requirements contained in section 241(d)(2) of the Act, the Service
shall not impose additional conditions on the carrier regarding
security arrangements. Failure to comply with an order to remove an
alien stowaway shall result in a civil penalty under section
243(c)(1)(A) of the Act.
(2) Detention of stowaways ordered removed. If detention of the
stowaway is required pending removal on other than the vessel or
aircraft of arrival, or if the stowaway is to be removed on the vessel
or aircraft of arrival but departure of the vessel or aircraft is not
imminent and circumstances preclude keeping the stowaway on board the
vessel or aircraft, the Service shall take the stowaway into Service
custody. The owner is responsible for all costs of maintaining and
detaining the stowaway pending removal, including costs for stowaways
seeking asylum as described in paragraph (d) of this section. Such
costs will be limited to those normally incurred in the detention of an
alien by the Service, including, but not limited to, housing, food,
transportation, medical expenses, and other reasonable costs incident
to the detention of the stowaway. The Service may require the posting
of a bond or other surety to ensure payment of costs of detention.
(d) Stowaways claiming asylum. (1) Referral for credible fear
determination. A stowaway who indicates an intention to apply for
asylum or a fear of persecution shall be removed from the vessel or
aircraft of arrival in accordance with Sec. 208.5(b) of this chapter.
The immigration officer shall refer the alien to an asylum officer for
a determination of credible fear in accordance with section
235(b)(1)(B) of the Act and Sec. 208.18 of this chapter. The stowaway
shall be detained in the custody of the Service pending the credible
fear determination and during any consideration of the asylum
application.
(2) Costs of detention of asylum-seeking stowaways. The owner of
the vessel or aircraft that brought the stowaway to the United States
shall reimburse the Service for the costs of maintaining and detaining
the stowaway pending a determination of credible fear under section
235(b)(1)(B) of the Act, up to a maximum period of 72 hours. The owner
is also responsible for the costs of maintaining and detaining the
stowaway during the period in which the stowaway is pursuing his or her
asylum application, for a maximum period of 15 working days, excluding
Saturdays, Sundays,
[[Page 504]]
and holidays. The 15-day period shall begin on the day following the
day in which the alien is determined to have a credible fear of
persecution by the asylum officer, or by the immigration judge if such
review was requested by the alien pursuant to section
235(b)(1)(B)(iii)(III), but not later than 72 hours after the stowaway
was initially presented to the Service for inspection. Following the
determination of credible fear, if the stowaway's application for
asylum is not adjudicated within 15 working days, the Service shall pay
the costs of detention beyond this time period. If the stowaway is
determined not to have a credible fear of persecution, or if the
stowaway's application for asylum is denied, including any appeals, the
carrier shall be notified and shall arrange for repatriation of the
stowaway at the expense of the owner of the vessel or aircraft on which
the stowaway arrived.
Sec. 241.12 Nonapplication of costs of detention and maintenance.
The owner of a vessel or aircraft bringing an alien to the United
States who claims to be exempt from payment of the costs of detention
and maintenance of the alien pursuant to section 241(c)(3)(B) of the
Act shall establish to the satisfaction of the district director in
charge of the port of arrival that such costs should not be applied.
The district director shall afford the line a reasonable time within
which to submit affidavits and briefs to support its claim. There is no
appeal from the decision of the district director.
Secs. 241.13-241.19 [Reserved]
Subpart B--Deportation of Excluded Aliens (for hearings commenced
prior to April 1, 1997)
Sec. 241.20 Proceedings commenced prior to April 1, 1997.
Subpart B of 8 CFR part 241 applies to exclusion proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart are references to the Act in effect prior to April 1,
1997.
Sec. 241.21 Stay of deportation of excluded alien.
The district director in charge of the port of arrival may stay the
immediate deportation of an excluded alien pursuant to sections 237 (a)
and (d) of the Act under such conditions as he or she may prescribe.
Sec. 241.22 Notice to surrender for deportation.
An alien who has been finally excluded pursuant to 8 CFR part 240,
subpart D may at any time surrender himself or herself to the custody
of the Service and shall surrender to such custody upon notice in
writing of the time and place for his or her surrender. The Service may
take the alien into custody at any time. An alien taken into custody
either upon notice to surrender or by arrest shall not be deported less
than 72 hours thereafter without his or her consent thereto filed in
writing with the district director in charge of the place of his or her
detention. An alien in foreign contiguous territory shall be informed
that he or she may remain there in lieu of surrendering to the Service,
but that he or she will be deemed to have acknowledged the execution of
the order of exclusion and deportation in his or her case upon his or
her failure to surrender at the time and place prescribed.
Sec. 241.23 Cost of maintenance not assessed.
A claim pursuant to section 237(a)(1) of the Act shall be
established to the satisfaction of the district director in charge of
the port of arrival, from whose adverse decision no appeal shall lie.
The district director shall afford the line a reasonable time within
which to submit affidavits and briefs to support its claim.
Sec. 241.24 Notice to transportation line of alien's exclusion.
(a) An excluded alien shall, immediately or as promptly as the
circumstances permit, be offered for deportation to the master,
commanding officer, purser, person in charge, agent, owner, or
consignee of the vessel or aircraft on which the alien is to be
deported, as determined by the district director, with a written notice
specifying the cause of exclusion, the class of travel in which such
alien arrived and is to be deported, and with the return of any
documentation that will assist in effecting his or her deportation. If
special care and attention are required, the provisions of Sec. 241.10
shall apply.
(b) Failure of the carrier to accept for removal an alien who has
been ordered excluded and deported shall result in the carrier being
assessed any costs incurred by the Service for detention after the
carrier's failure to accept the alien for removal including the cost of
any transportation. The User Fee Account shall not be assessed for
expenses incurred because of the carrier's violation of the provisions
of section 237 of the Act and this paragraph. The Service will, at the
carrier's option, retain custody of the excluded alien for an
additional 7 days beyond the date of the deportation/exclusion order.
If, after the third day of this additional 7-day period, the carrier
has not made all the necessary transportation arrangements for the
excluded alien to be returned to his or her point of embarkation by the
end of the additional 7-day period, the Service will make the
arrangements and bill the carrier for its costs.
Sec. 241.25 Deportation.
(a) Definitions of terms. For the purposes of this section, the
following terms mean:
(1) Adjacent island--as defined in section 101(b)(5) of the Act.
(2) Foreign contiguous territory--any country sharing a common
boundary with the United States.
(3) Residence in foreign contiguous territory or adjacent island--
any physical presence, regardless of intent, in a foreign contiguous
territory or an adjacent island if the government of such territory or
island agrees to accept the alien.
(4) Aircraft or vessel--any conveyance and other mode of travel by
which arrival is affected.
(5) Next available flight--the carrier's next regularly scheduled
departure to the excluded alien's point of embarkation regardless of
seat availability. If the carrier's next regulatory scheduled departure
of the excluded aliens point of embarkation is full, the carrier has
the option of arranging for return transportation on other carrier
which service the excluded aliens point of embarkation.
(b) Place to which deported. Any alien (other than an alien crew
member or an alien who boarded an aircraft or vessel in foreign
contiguous territory or an adjacent island) who is ordered excluded
shall be deported to the country where the alien boarded the vessel or
aircraft on which the alien arrived in the United States. If that
country refuses to accept the alien, the alien shall be deported to:
(1) The country of which the alien is a subject, citizen, or
national;
(2) The country where the alien was born;
(3) The country where the alien has a residence; or
(4) Any country willing to accept the alien.
(c) Contiguous territory and adjacent islands. Any alien ordered
excluded who boarded an aircraft or vessel in foreign contiguous
territory or in any adjacent island shall be deported to such foreign
contiguous territory or adjacent island is the alien is a native,
citizen, subject or national of such foreign contiguous territory or
adjacent
[[Page 505]]
island, or if the alien has a residence in such foreign contiguous
territory or adjacent island. Otherwise, the alien shall be deported,
in the first instance, to the country in which is located the port at
which the alien embarked for such foreign contiguous territory or
adjacent island.
(d) Land border pedestrian arrivals. Any alien ordered excluded who
arrived at a land border on foot shall be deported in the same manner
as if the alien had boarded a vessel or aircraft in foreign contiguous
territory.
Secs. 241.26-241.29 [Reserved]
Subpart C--Deportation of Aliens in the United States (For Hearings
Commenced Prior to April 1, 1997)
Sec. 241.30 Proceedings commenced prior to April 1, 1997.
Subpart C of 8 CFR part 241 applies to deportation proceedings
commenced prior to April 1, 1997. All references to the Act contained
in this subpart are references to the Act in effect prior to April 1,
1997.
Sec. 241.31 Final order of deportation.
Except as otherwise required by section 242(c) of the Act for the
specific purposes of that section, an order of deportation, including
an alternate order of deportation coupled with an order of voluntary
departure, made by the immigration judge in proceedings under 8 CFR
part 240 shall become final upon dismissal of an appeal by the Board of
Immigration Appeals, upon waiver of appeal, or upon expiration of the
time allotted for an appeal when no appeal is taken; of, if such an
order is issued by the Board or approved by the Board upon
certification, it shall be final as of the date of the Board's
decision.
Sec. 241.32 Warrant of deportation.
A Form I-205, Warrant of Deportation, based upon the final
administrative order of deportation in the alien's case shall be issued
by a district director. The director shall exercise the authority
contained in such 243 of the Act to determine at whose expense the
alien shall be deported and whether his or her mental or physical
condition requires personal care and attention en route to his or her
destination.
Sec. 241.33 Expulsion.
(a) Execution of order. Except in the exercise of discretion by the
district director, and for such reasons as are set forth in
Sec. 212.5(a) of this chapter, once an order of deportation becomes
final, an alien shall be taken into custody and the order shall be
executed. For the purposes of this part, and order of deportation is
final and subject to execution upon the date when any of the following
occurs:
(1) A grant of voluntary departure expires;
(2) An immigration judge enters an order of deportation without
granting voluntary departure or other relief, and the alien respondent
waives his or order right to appeal;
(3) The Board of Immigration Appeals enters and order of
deportation on appeals, without granting voluntary departure or other
relief; or
(4) A Federal district or appellate court affirms an administrative
order of deportation in a petition for review or habeas corpus action.
(b) Service of decision. In the case of an order entered by any of
the authorities enumerated above, the order shall be executed no sooner
than 72 hours after service of the decision, regardless of whether the
alien is in Service custody, provided that such period may be waived on
the knowing and voluntary request of the alien. Nothing in this
paragraph shall be construed, however, to preclude assumption of
custody by the Service at the time of issuance of the final order.
PART 242--[REMOVED AND RESERVED]
108. Part 242 is removed and reserved.
PART 243--[REMOVED AND RESERVED]
109. Part 243 is removed and reserved.
PART 244--TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED
STATES
110. The heading for part 244 is revised as set forth above.
111. The authority citation for part 244 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1254, 1254a note.
Secs. 244.1 and 244.2 [Removed]
112. Sections 244.1 and 244.2 are removed.
Secs. 244.3 through 244.22 [Redesignated as Secs. 244.1 through
244.20]
113. Newly redesignated Secs. 244.3 through 244.22 are further
redesignated as Secs. 244.1 through 244.20, respectively.
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
114. The authority citation for part 245 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 8 CFR part 2.
115. Section 245.1 is amended by:
a. Removing the word ``and'' at the end of the paragraph (c)(3);
b. Removing the ``.'' at the end of paragraphs (c)(4) through
(c)(7), and replacing it with a ``;'';
c. Redesignating paragraph (c)(8) as paragraph (c)(9);
d. Adding a new paragraph (c)(8);
e. Revising newly redesignated paragraph (c)(9) introductory text,
f. Revising newly redesignated paragraphs (c)(9)(i) through
(c)(9)(iii); and by
g. Revising paragraph (f), to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(c) * * *
(8) Any arriving alien who is in removal proceedings pursuant to
section 235(b)(1) or section 240 of the Act; and
(9) Any alien who seeks to adjust status based upon a marriage
which occurred on or after November 10, 1986, and while the alien was
in exclusion, deportation, or removal proceedings, or judicial
proceedings relating thereto.
(i) Commencement of proceedings. The period during which the alien
is in deportation, exclusion, or removal proceedings or judicial
proceedings relating thereto, commences:
(A) With the issuance of the Form I-221, Order to Show Cause and
Notice of Hearing prior to June 20, 1991;
(B) With the filing of a Form I-221, Order to Show Cause and Notice
of Hearing, issued on or after June 20, 1991, with the Immigration
Court;
(C) With the issuance of Form I-122, Notice to Applicant for
Admission Detained for Hearing Before Immigration Judge, prior to April
1, 1997,
(D) With the filing of a Form I-862, Notice to Appear, with the
Immigration Court, or
(E) With the issuance and service of Form I-860, Notice and Order
of Expedited Removal.
(ii) Termination of proceedings. The period during which the alien
is in exclusion, deportation, or removal proceedings, or judicial
proceedings relating thereto, terminates:
(A) When the alien departs from the United States while an order of
exclusion, deportation, or removal is outstanding or before the
expiration of the voluntary departure time granted in connection with
an alternate order of deportation or removal;
(B) When the alien is found not to be inadmissible or deportable
from the United States;
[[Page 506]]
(C) When the Form I-122, I-221, I-860, or I-862 is canceled;
(D) When proceedings are terminated by the immigration judge or the
Board of Immigration Appeals; or
(E) When a petition for review or an action for habeas corpus is
granted by a Federal court on judicial review.
(iii) Exemptions. This prohibition shall no longer apply if:
(A) The alien is found not to be inadmissible or deportable from
the United States;
(B) Form I-122, I-221, I-860, or I-862, is canceled;
(C) Proceedings are terminated by the immigration judge or the
Board of Immigration Appeals;
(D) A petition for review or an action for habeas corpus is granted
by a Federal court on judicial review;
(E) The alien has resided outside the United States for 2 or more
years following the marriage; or
(F) The alien establishes the marriage is bona fide by providing
clear and convincing evidence that the marriage was entered into in
good faith and in accordance with the laws of the place where the
marriage took place, was not entered into for the purpose of procuring
the alien's entry as an immigrant, and no fee or other consideration
was given (other than to an attorney for assistance in preparation of a
lawful petition) for the filing of a petition.
* * * * *
(f) Concurrent applications to overcome grounds of inadmissibility.
Except as provided in 8 CFR parts 235 and 249, an application under
this part shall be the sole method of requesting the exercise of
discretion under sections 212 (g), (h), (i), and (k) of the Act, as
they relate to the inadmissibility of an alien in the United States. No
fee is required for filing an application to overcome the grounds of
inadmissibility of the Act if filed concurrently with an application
for adjustment of status under the provisions of the Act of October 28,
1977, and of this part.
* * * * *
116. Section 245.2 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraph (a)(4)(ii);
c. Revising paragraph (a)(5) (ii) and (iii); and by
d. Revising paragraph (c), to read as follows:
Sec. 245.2 Application.
(a) General. (1) Jurisdiction. An alien who believes he or she
meets the eligibility requirements of section 245 of the Act or section
1 of the Act of November 2, 1966, and Sec. 245.1 shall apply to the
director having jurisdiction over his or her place of residence unless
otherwise instructed in 8 CFR part 245, or by the instruction on the
application form. After an alien, other than an arriving alien, is in
deportation or removal proceedings, his or her application for
adjustment of status under section 245 of the Act or section 1 of the
Act of November 2, 1966 shall be made and considered only in those
proceedings. An arriving alien, other than an alien in removal
proceedings, who believes he or she meets the eligibility requirements
of section 245 of the Act or section 1 of the Act of November 2, 1966,
and Sec. 245.1 shall apply to the director having jurisdiction over his
or her place of arrival. An adjustment application by an alien paroled
under section 212(d)(5) of the Act, which has been denied by the
Director, may be renewed in removal proceedings under 8 CFR part 240
only if:
(i) The denied application must have been properly filed subsequent
to the applicant's earlier inspection and admission to the United
States; and
(ii) The applicant's later absence from and return to the United
States was under the terms of an advance parole authorization on Form
I-512 granted to permit the applicant's absence and return to pursue
the previously filed adjustment application.
* * * * *
(4) * * *
(ii) Under section 245 of the Act. The departure from the United
States of an applicant who is under exclusion, deportation, or removal
proceedings shall be deemed an abandonment of the application
constituting grounds for termination of the proceeding by reason of the
departure. The departure of an applicant who is not under exclusion,
deportation, or removal proceedings shall be deemed an abandonment of
his or her application constituting grounds for termination, unless the
applicant was previously granted advance parole by the Service for such
absence, and was inspected upon returning to the United States. If the
application of an individual granted advance parole is subsequently
denied, the applicant will be treated as an applicant for admission,
and subject to the provisions of sections 212 and 235 of the Act.
* * * * *
(5) * * *
(ii) Under section 245 of the Act. If the application is approved,
the applicant's permanent residence shall be recorded as of the date of
the order approving the adjustment of status. An application for
adjustment of status, as a preference alien, shall not be approved
until an immigrant visa number has been allocated by the Department of
State, except when the applicant has established eligibility for the
benefits of Public Law 101-238. No appeal lies from the denial of an
application by the director, but the applicant, if not an arriving
alien, retains the right to renew his or her application in proceedings
under 8 CFR part 240. Also, an applicant who is a parolee and meets the
two conditions described in Sec. 245.2(a)(1) may renew a denied
application in proceedings under 8 CFR part 240 to determine
admissibility. At the time of renewal of application, an applicant does
not need to meet the statutory requirement of section 245(c) of the
Act, or Sec. 245.1(g), if, in fact, those requirements were met at the
time the renewed application was initially filed with the director.
Nothing in this section shall entitle an alien to proceedings under
section 240 of the Act who is not otherwise so entitled.
(iii) Under the Act of November 2, 1966. If the application is
approved, the applicant's permanent residence shall be recorded in
accordance with the provisions of section 1. No appeal lies from the
denial of an application by the director, but the applicant, if not an
arriving alien, retains the right to renew his or her application in
proceedings under 8 CFR part 240. Also, an applicant who is a parolee
and meets the two conditions described in Sec. 245.2(a)(1) may renew a
denied application in proceedings under 8 CFR part 240 to determine
admissibility.
* * * * *
(c) Application under section 214(d) of the Act. An application for
permanent resident status pursuant to section 214(d) of the Act shall
be filed on Form I-485 with the director having jurisdiction over the
applicant's place of residence. A separate application shall be filed
by each applicant. If the application is approved, the director shall
record the lawful admission of the applicant as of the date of
approval. The applicant shall be notified of the decision and, if the
application is denied, of the reasons therefor. No appeal shall lie
from the denial of an application by the director but such denial shall
be without prejudice to the alien's right to renew his or her
application in proceedings under 8 CFR part 240.
117. Section 245.5 is amended by revising the first sentence to
read as follows:
Sec. 245.5 Medical examination.
Pursuant to section 232(b) of the Act, an applicant for adjustment
of status
[[Page 507]]
shall be required to have a medical examination by a designated civil
surgeon, whose report setting forth the findings of the mental and
physical condition of the applicant, including compliance with section
212(a)(1)(A)(ii) of the Act, shall be incorporated into the record.* *
*
118. Section 245.8 is amended by revising paragraph (e), to read as
follows:
Sec. 245.8 Adjustment of status as a special immigrant under section
101(a)(27)(K) of the Act.
* * * * *
(e) Removal provisions of section 237 of the Act. If the Service is
made aware by notification from the appropriate executive department or
by any other means that a section 101(a)(27)(K) special immigrant who
has already been granted permanent residence fails to complete his or
her total active duty service obligation for reasons other than an
honorable discharge, the alien may become subject to the removal
provisions of section 237 of the Act, provided the alien is in one or
more of the classes of deportable aliens specified in section 237 of
the Act. The Service shall obtain current Form DD-214, Certificate of
Release or Discharge from Active Duty, from the appropriate executive
department for verification of the alien's failure to maintain
eligibility.
* * * * *
119. Section 245.9 is amended by revising paragraphs (d) and (m),
to read as follows:
Sec. 245.9 Adjustment of Status of Certain Nationals of the People's
Republic of China under Public Law 102-404.
* * * * *
(d) Waivers of inadmissibility under section 212(a) of the Act. An
applicant for the benefits of the adjustment of status provisions of
Pub. L. 102-404 is automatically exempted from compliance with the
requirements of sections 212(a)(5) and 212(a)(7)(A) of the Act. A Pub.
L. 102-404 applicant may also apply for one or more waivers of
inadmissibility under section 212(a) of the Act, except for
inadmissibility under section 212(a)(2)(C), 212(a)(3)(A), 212(a)(3)(B),
212(a)(3)(C) or 212(a)(3)(E) of the Act.
* * * * *
(m) Effect of enactment on family members other than qualified
family members. The adjustment of status benefits and waivers provided
by Pub. L. 102-404 do not apply to a spouse or child who is not a
qualified family member as defined in paragraph (c) of this section.
However, a spouse or child whose relationship to the principal alien
was established prior to the approval of the principal's adjustment of
status application may be accorded the derivative priority date and
preference category of the principal alien, in accordance with the
provisions of section 203(d) of the Act. The spouse or child may use
the priority date and category when it becomes current, in accordance
with the limitations set forth in sections 201 and 202 of the Act.
Persons who are unable to maintain lawful nonimmigrant status in the
United States and are not immediately eligible to apply for adjustment
of status may request voluntary departure pursuant to 8 CFR part 240.
120. Section 245.10 is amended by:
a. Revising paragraphs (a)(3) and (6); and by
b. Revising introductory text in paragraph (b), to read as follows:
Sec. 245.10 Adjustment of status upon payment of additional sum under
Public Law 103-317.
(a) * * *
(3) Is not inadmissible from the United States under any provision
of section 212 of the Act, or all grounds for inadmissibility have been
waived;
* * * * *
(6) Remits the sum specified in section 245(i) of the Act, unless
payment of the sum is waived under section 245(i) of the Act; and
* * * * *
(b) Payment of additional sum. An applicant filing under the
provisions of section 245(i) of the Act must pay the standard
adjustment of status filing fee, as shown on Form I-485 and contained
in Sec. 103.7(b)(1) of this chapter. The applicant must also pay the
additional sum specified in section 245(i) of the Act, unless at the
time the application for adjustment of status is filed, the alien is:
* * * * *
121. Section 245.11 is amended by:
a. Revising paragraph (a)(4)(ii)(B);
b. Revising paragraph (b)(1)(iii);
c. Revising the introductory text in paragraph (c); and by
d. Revising paragraphs (h) and (i), to read as follows:
Sec. 245.11 Adjustment of aliens in S nonimmigrant classification.
(a) * * *
(4) * * *
(ii) * * *
(B) Be admissible to the United States as an immigrant, unless the
ground of inadmissibility has been waived;
* * * * *
(b) * * *
(1) * * *
(iii) The family member is not inadmissible from the United States
as a participant in Nazi persecution or genocide as described in
section 212(a)(3)(E) of the Act;
* * * * *
(c) Waivers of inadmissibility. An alien seeking to adjust status
pursuant to the provisions of section 101(a)(15)(S) of the Act may not
be denied adjustment of status for conduct or a condition that:
* * * * *
(h) Removal under section 237 of the Act. Nothing in this section
shall prevent an alien adjusted pursuant to the terms of these
provisions from being removed for conviction of a crime of moral
turpitude committed within 10 years after being provided lawful
permanent residence under this section or for any other ground under
section 237 of the Act.
(i) Denial of application. In the event the district decides to
deny an application on Form I-485 and an approved Form I-854 to allow
an S nonimmigrant to adjust status, the Assistant Attorney General,
Criminal Division, and the relevant LEA shall be notified in writing to
that effect. The Assistant Attorney General, Criminal Division, shall
concur in or object to that decision. Unless the Assistant Attorney
General, Criminal Division, objects within 7 days, he or she shall be
deemed to have concurred in the decision. In the event of an objection
by the Assistant Attorney General, Criminal Division, the matter will
be expeditiously referred to the Deputy Attorney General for a final
resolution. In no circumstances shall the alien or the relevant LEA
have a right of appeal from any decision to deny. A denial of an
adjustment application under this paragraph may not be renewed in
subsequent removal proceedings.
PART 246--RESCISSION OF ADJUSTMENT OF STATUS
122. The authority citation for part 246 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.
Sec. 246.8 [Removed]
123. Section 246.8 is removed.
PART 248--CHANGE OF NONIMMGRANT CLASSIFICATION
124. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258; 8 CFR part 2.
125. Section 248.1 is amended by revising paragraph (b)(4) to read
as follows:
[[Page 508]]
Sec. 248.1 Eligibility.
* * * * *
(b) * * *
(4) The alien is not the subject of removal proceedings under 8 CFR
part 240.
* * * * *
PART 249--CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT
RESIDENCE
126. The authority citation for part 249 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1259; 8 CFR part 2.
127. Section 249.2 is amended by revising the first sentence in
paragraph (a) and by revising paragraph (b), to read as follows:
Sec. 249.2 Application.
(a) Jurisdiction. An application by an alien, other than an
arriving alien, who has been served with a notice to appear or warrant
of arrest shall be considered only in proceedings under 8 CFR part 240.
* * *
(b) Decision. The applicant shall be notified of the decision and,
if the application is denied, of the reasons therefor. If the
application is granted, a Form I-551, showing that the applicant has
acquired the status of an alien lawfully admitted for permanent
residence, shall not be issued until the applicant surrenders any other
document in his or her possession evidencing compliance with the alien
registration requirements of former or existing law. No appeal shall
lie from the denial of an application by the district director.
However, an alien, other than an arriving alien, may renew the denied
application in proceedings under 8 CFR part 240.
PART 251--ARRIVAL MANIFESTS AND LISTS: SUPPORTING DOCUMENTS
128. The authority citation for part 251 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282, 8 CFR part 2.
129. Section 251.1 is revised to read as follows:
Sec. 251.1 Arrival manifests and lists.
(a) Vessels. (1) General. The master or agent of every vessel
arriving in the United States from a foreign place or an outlying
possession of the United States shall present to the immigration
officer at the port where the immigration inspection is performed a
manifest of all crewmen on board on Form I-418, Passenger List and Crew
List, in accordance with the instructions contained thereon.
(2) Longshore work notations. The master or agent of the vessel
shall indicate in writing immediately below the name of the alien
listed on the Form I-418 whether or not crewmen aboard the vessel will
be used to perform longshore work at any United States port before the
vessel departs the United States.
(i) If no longshore work will be performed, no further notation
regarding longshore work is required.
(ii) If longshore work will be performed, the master or agent shall
note which exception listed in section 258 of the Act permits the work.
The exceptions are:
(A) The hazardous cargo exception;
(B) The prevailing practice exception in accordance with a port's
collective bargaining agreements;
(C) The prevailing practice exception in a port where there is no
collective bargaining agreement, but for which the vessel files an
attestation;
(D) The prevailing practice exception for automated vessels; and
(E) The reciprocity exception.
(iii) If longshore work will be performed under the hazardous cargo
exception, the vessel must either be a tanker or be transporting dry
bulk cargo that qualifies as hazardous. All tankers qualify for the
hazardous cargo exception, except for a tanker that has been gas-freed
to load non-hazardous dry bulk commodities.
(A) To invoke the exception for tankers, the master or agent shall
note on the manifest that the vessel is a qualifying tanker.
(B) If the vessel is transporting dry bulk hazardous cargo, the
master or agent shall note on the manifest that the vessel's dry bulk
cargo is hazardous and shall show the immigration officer the dangerous
cargo manifest that is signed by the master or an authorized
representative of the owner, and that under 46 CFR 148.02 must be kept
in a conspicuous place near the bridge house.
(iv) If longshore work will be performed under the prevailing
practice exception, the master or agent shall note on the manifest each
port at which longshore work will be performed under this exception.
Additionally, for each port the master or agent shall note either that:
(A) The practice of nonimmigrant crewmen doing longshore work is in
accordance with all collective bargaining agreements covering 30
percent or more of the longshore workers in the port;
(B) The port has no collective bargaining agreement covering 30
percent or more of the longshore workers in the port and an attestation
has been filed with the Secretary of Labor;
(C) An attestation that was previously filed is still valid and the
continues to comply with the conditions stated in that attestation; or
(D) The longshore work consists of operating an automated, self-
unloading conveyor belt or a vacuum-actuated system.
(v) If longshore work will be performed under the reciprocity
exception, the master or agent shall note on the manifest that the work
will be done under the reciprocity exception, and will note the
nationality of the vessel's registry and the nationality or
nationalities of the holders of a majority of the ownership interest in
the vessel.
(3) Exception for certain Great Lakes vessels. (i) A manifest shall
not be required for a vessel of United States, Canadian, or British
registry engaged solely in traffic on the Great Lakes or the St.
Lawrence River and connecting waterways, herein designated as a Great
Lakes vessel, unless:
(A) The vessel employs nonimmigrant crewmen who will do longshore
work at a port in the United States; or
(B) The vessel employs crewmen of other than United States,
Canadian, or British citizenship.
(ii) In either situation, the master shall note the manifest in the
manner prescribed in paragraph (a)(2) of this section.
(iii) After submission of a manifest on the first voyage of a
calendar year, a manifest shall not be required on subsequent arrivals
unless a nonimmigrant crewman of other than Canadian or British
citizenship is employed on the vessel who was not aboard and listed on
the last prior manifest, or a change has occurred regarding the
performance of longshore work in the United States by nonimmigrant
crewmen, or a change has occurred in the exception that the master or
agent of the vessel wishes to invoke which was not noted on the last
prior manifest.
(4) The master or agent of a vessel that only bunkers at a United
States port en route to another United States port shall annotate Form
I-418 presented at the onward port to indicate the time, date, and
place of bunkering.
(5) If documentation is required to support an exception, as
described in Sec. 258.2 of this chapter, it must accompany the
manifest.
(b) Aircraft. The captain or agent of every aircraft arriving in
the United States from a foreign place or from an outlying possession
of the United States, except an aircraft arriving in the United
[[Page 509]]
States directly from Canada on a flight originating in that country,
shall present to the immigration officer at the port where the
inspection is performed a manifest on United States Customs Service
Form 7507 or on the International Civil Aviation Organization's General
Declaration of all the alien crewmembers on board, including alien
crewmembers who are returning to the United States after taking an
aircraft of the same line from the United States to a foreign place or
alien crewmembers who are entering the United States as passengers
solely for the purpose of taking an aircraft of the same line from the
United States to a foreign port. The captain or agent of an aircraft
that only refuels at the United States en route to another United
States port must annotate the manifest presented at the onward port to
indicate the time, date, and place of refueling. The surname, given
name, and middle initial of each alien crewman listed also shall be
shown on the manifest. In addition, the captain or agent of the
aircraft shall indicate the total number of United States citizen
crewmembers and total number of alien crewmembers.
(c) Additional documents. The master, captain, or agent shall
prepare as a part of the manifest, when one is required for
presentation to an immigration officer, a completely executed set of
Forms I-95, Conditional Landing Permit, for each nonimmigrant alien
crewman on board, except:
(1) A Canadian or British citizen crewman serving on a vessel
plying solely between Canada and the United States; or
(2) A nonimmigrant crewman who is in possession of an unmutilated
Form I-184, Alien Crewman Landing Permit and Identification Card, or an
unmutilated Form I-95 with space for additional endorsements previously
issued to him or her as a member of the crew of the same vessel or an
aircraft of the same line on his or her last prior arrival in the
United States, following which he or she departed from the United
States as a member of the crew of the same vessel or an aircraft of the
same line.
130. Section 251.2 is revised to read as follows:
Sec. 251.2 Notification of illegal landings.
As soon as discovered, the master or agent of any vessel from which
an alien crewman has illegally landed or deserted in the United States
shall inform the immigration officer in charge of the port where the
illegal landing or desertion occurred, in writing, or the name,
nationality, passport number and, if known, the personal description,
circumstances and time of such illegal landing or desertion of such
alien crewman, and furnish any other information and documents that
might aid in his or her apprehension, including any passport
surrendered pursuant to Sec. 252.1(d) of this chapter. Failure to file
notice of illegal landing or desertion and to furnish any surrendered
passport within 24 hours of the time of such landing or desertion
becomes known shall be regarded as lack of compliance with section
251(d) of the Act.
131. Section 251.3 is revised to read as follows:
Sec. 251.3 Departure manifests and lists for vessels.
(a) Form I-418, Passenger List-Crew List. The master or agent of
every vessel departing from the United States shall submit to the
immigration officer at the post from which such vessel is to depart
directly to some foreign place or outlying possession of the United
States, except when a manifest is not required pursuant to
Sec. 251.1(a), a single Form I-418 completed in accordance with the
instructions on the form. Submission of a Form I-418 that lacks any
required endorsement shall be regarded as lack of compliance with
section 251(c) of the Act.
(b) Exception for certain Great Lakes vessels. The required list
need not be submitted for Canadian or British crewmembers of Great
Lakes vessels described in Sec. 251.1(a)(3).
132. Section 251.4 is revised to read as follows:
Sec. 251.4 Departure manifests and lists for aircraft.
(a) United States Customs Service Form 7507 or International Civil
Aviation Organization's General Declaration. The captain or agent of
every aircraft departing from the United States for a foreign place or
an outlying possession of the United States, except on a flight
departing for and terminating in Canada, shall submit to the
immigration officer at the port from which such aircraft is to depart a
completed United States Customs Service Form 7507 or the International
Civil Aviation Organization's General Declaration. The form shall
contain a list of all alien crewmen on board, including alien crewmen
who arrived in the United States as crewmen on an aircraft of the same
line and who are departing as passengers. The surname, given name, and
middle initial of each such alien crewman listed shall be shown. In
addition, the captain or agent of the craft shall indicate the total
number of alien crewmembers and the total number of United States
citizen crewmembers.
(b) Notification of changes in employment for aircraft. The agent
of the air transportation line shall immediately notify in writing the
nearest immigration office of the termination of employment in the
United States of each alien employee of the line furnishing the name,
birth date, birthplace, nationality, passport number, and other
available information concerning such alien. The procedure to follow in
obtaining permission to pay off or discharge an alien crewman in the
United States after initial immigration inspection, other than an alien
lawfully admitted for permanent residence, is set forth in
Sec. 252.1(f) of this chapter.
133. Section 251.5 is revised to read as follows:
Sec. 251.5 Exemptions for private vessels and aircraft.
The provisions of this part relating to submission of arrival and
departure manifests and lists shall not apply to a private vessel or a
private aircraft not engaged directly or indirectly in the carriage of
persons or cargo for hire.
PART 252--LANDING OF ALIEN CREWMEN
134. The authority citation for part 252 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1184, 1258, 1281, 1282; 8 CFR part 2.
135. Section 252.1 is amended by revising paragraphs (a) through
(c) to read as follows:
Sec. 252.1 Examination of crewmen.
(a) Detention prior to examination. All persons employed in any
capacity on board any vessel or aircraft arriving in the United States
shall be detained on board the vessel or at the airport of arrival by
the master or agent of such vessel or aircraft until admitted or
otherwise permitted to land by an officer of the Service.
(b) Classes of aliens subject to examination under this part. The
examination of every nonimmigrant alien crewman arriving in the United
States shall be in accordance with this part except that the following
classes of persons employeed on vessels or aircraft shall be examined
in accordance with the provisions of 8 CFR parts 235 and 240:
(1) Canadian or British citizen crewmen serving on vessels plying
solely between Canada and the United States; or
(2) Canadian or British citizen crewmen of aircraft arriving in a
State of the United States directly from
[[Page 510]]
Canada on flights originating in that country. The crew of a vessel
arriving at a United States port that may not require inspection by or
clearance from the United States Customs Service is, nevertheless,
subject to examination under this part; however, the master of such a
vessel is not required to present Form I-95 for any crewman who is not
an applicant for a conditional landing permit.
(c) Requirements for landing permits. Every alien crewman applying
for landing privileges in the United States must make his or her
application in person before an immigration officer, present whatever
documents are required, be photographed and fingerprinted as the
district director may require, and establish to the satisfaction of the
immigration officer that he or she is not inadmissible under any
provision of the law and is entitled clearly and beyond doubt to
landing privileges in the United States.
136. Section 252.2 is revised to read as follows:
Sec. 252.2 Revocation of conditional landing permits; removal.
(a) Revocation and removal while vessel is in the United States. A
crewman whose landing permit is subject to revocation pursuant to
section 252(b) of the Act may be taken into custody by any immigration
officer without a warrant of arrest and be transferred to the vessel of
arrival, if the vessel is in any port in the United States and has not
departed foreign since the crewman was issued his or her conditional
landing permit. Detention and removal of the crewman shall be at the
expense of the transportation line on which the crewman arrived.
Removal may be effected on the vessel of arrival or, if the master of
the vessel has requested in writing, by alternate means if removal on
the vessel of arrival is impractical.
(b) Revocation and removal after vessel has departed the United
States. A crewman who was granted landing privileges prior to April 1,
1997, and who has not departed foreign on the vessel of arrival, or on
another vessel or aircraft if such permission was granted pursuant to
Sec. 252.1(f), is subject to removal proceedings under section 240 of
the Act as an alien deportable pursuant to section 237(a)(1)(C)(i) of
the Act. A crewman who was granted landing privileges on or after April
1, 1997, and who has not departed foreign on the vessel of arrival, or
on another vessel or aircraft if such permission was granted pursuant
to Sec. 252.1(f), shall be removed from the United States without a
hearing. In either case, if the alien is removed within 5 years of the
date of landing, removal of the crewman shall be at the expense of the
owner of the vessel. In the case of a crewman ordered removed more than
5 years after the date of landing, removal shall be at the expense of
the appropriation for the enforcement of the Act.
137. Section 252.3 is revised to read as follows:
Sec. 252.3 Great Lakes vessels and tugboats arriving in the United
States from Canada; special procedures.
(a) United States vessels and tugboats. An immigration examination
shall not be required of any crewman aboard a Great Lakes vessel of
United States registry or a tugboat of United States registry arriving
from Canada at a port of the United States who has been examined and
admitted by an immigration officer as a member of the crew of the same
vessel or tugboat or of any other vessel or tugboat of the same company
during the current calendar year.
(b) Canadian or British vessels or tugboats. An alien crewman need
not be presented for inspection if the alien crewman:
(1) Serves aboard a Great Lakes vessel of Canadian or British
registry or aboard a tugboat of Canadian or British registry arriving
at a United States port-of-entry from Canada;
(2) Seeks admission for a period of less than 29 days;
(3) Has, during the current calendar year, been inspected and
admitted by an immigration officer as a member of the crew of the same
vessel or tugboat, or of any other vessel or tugboat of the same
company;
(4) Is either a British or Canadian citizen or is in possession of
a valid Form I-95 previously issued to him or her as a member of the
crew of the same vessel or tugboat, or of any vessel or tugboat of the
same company;
(5) Does not request or require landing privileges in the United
States beyond the time the vessel or tugboat will be in port; and,
(6) Will depart to Canada with the vessel or tugboat.
138. Section 252.4 is revised to read as follows:
Sec. 252.4 Permanent landing permit and identification card.
A Form I-184 is valid until revoked. It shall be revoked when an
immigration officer finds that the crewman is in the United States in
willful violation of the terms and conditions of his or her permission
to land, or that he or she is inadmissible to the United States. On
revocation, the Form I-184 shall be surrendered to an immigration
officer. No appeal shall lie from the revocation of Form I-184.
139. Section 252.5 is revised to read as follows:
Sec. 252.5 Special procedures for deserters from Spanish or Greek
ships of war.
(a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and
28 CFR 0.109, and E.O. 11300 of August 17, 1966 (31 FR 11009), and 28
CFR 0.110, the Commissioner and immigration officers (as defined in
Sec. 103.1(j) of this chapter) are designated as ``competent national
authorities'' on the part of the United States within the meaning of
Article XXIV of the 1903 Treaty of Friendship and General Relations
between the United States and Spain (33 Stat. 2105, 2117), and ``local
authorities'' and ``competent officers'' on the part of the United
States within the meaning of Article XIII of the Convention between the
United States and Greece (33 Stat. 2122, 2131).
(b) Application for restoration. On application of a Consul
General, Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek
Government, made in writing pursuant to Article XXIV of the treaty, or
Article XIII of the Convention, respectively, stipulating for the
restoration of crewmen deserting, stating that the person named therein
has deserted from a ship of war of that government, while in any port
of the United States, and on proof by the exhibition of the register,
crew list, or official documents of the vessel, or a copy or extract
therefrom, duly certified, that the person named belonged, at the time
of desertion, to the crew of such vessel, such person shall be taken
into custody by any immigration officer without a warrant of arrest.
Written notification of charges shall be served on the alien when he or
she is taken into custody or as soon as practical thereafter.
(c) Examination. Within a reasonable period of time after the
arrest, the alien shall be accorded an examination by the district
director, acting district director, or the deputy district director
having jurisdiction over the place of arrest. The alien shall be
informed that he or she may have the assistance of or be represented by
a counsel or representative of his or her choice qualified under 8 CFR
part 292 without expense to the Government, and that he or she may
present such evidence in his or her behalf as may be relevant to this
proceeding. If, upon the completion of such examination, it is
determined that:
(1) The individual sought by the Spanish or Greek authorities had
[[Page 511]]
deserted from a Spanish or Greek ship of war in a United States port;
(2) The individual actually arrested and detained is the person
sought;
(3) The individual is not a citizen of the United States; and
(4) The individual had not previously been arrested for the same
cause and set at liberty because he or she had been detained for more
than 3 months, or more than 2 months in the case of a deserter from a
Greek ship of war, from the day of his or her arrest without the
Spanish or Greek authorities having found an opportunity to send him or
her home, the individual shall be served with a copy of the findings,
from which no appeal shall lie, and be surrendered forthwith to the
Spanish or Greek authorities if they are prepared to remove him or her
from the United States. On written request of the Spanish or Greek
authorities, the individual shall be detained, at their expense, for a
period not exceeding 3 months or 2 months, respectively, from the day
of arrest to afford opportunity to arrange for his or her departure
from the United States.
(d) Timely departure not effected. If the Spanish authorities delay
in sending the individual home for more than 3 months, or if the Greek
authorities delay in sending the individual home for more than 2
months, from the day of his or her arrest, the individual shall be
dealt with as any other alien unlawfully in the United States under the
removal provisions of the Act, as amended.
(e) Commission of crime. If the individual has committed any crime
or offense in the United States, he or she shall not be placed at the
disposal of the consul until after the proper tribunal having
jurisdiction in his or her case shall have pronounced sentence, and
such sentence shall have been executed.
PART 253--PAROLE OF ALIEN CREWMEN
140. The authority citation for part 253 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285; 8 CFR part 2.
141. In Sec. 253.1, paragraph (f) is revised to read as follows:
Sec. 253.1 Parole.
* * * * *
(f) Crewman, stowaway, or alien removable under section 235(c)
alleging persecution. Any alien crewman, stowaway, or alien removable
under section 235(c) of the Act who alleges that he or she cannot
return to his or her country of nationality or last habitual residence
(if not a national of any country) because of fear of persecution in
that country on account of race, religion, nationality, membership in a
particular social group, or political opinion, is eligible to apply for
asylum or withholding of removal under 8 CFR part 208. Service officers
shall take particular care to ensure the provisions of Sec. 208.5(b) of
this chapter regarding special duties toward aliens aboard certain
vessels are closely followed.
* * * * *
PART 274A--CONTROL OF EMPLOYMENT OF ALIENS
142. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
143. Section 274a.12 is amended by:
a. Revising paragraphs (a)(10) and (12);
b. Revising paragraphs (c)(8) and (10);
c. Removing and reserving paragraph (c)(12); and by
d. Revising paragraph (c)(18), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) * * *
(10) An alien granted withholding of deportation or removal for the
period of time in that status, as evidenced by an employment
authorization document issued by the Service;
* * * * *
(12) An alien granted Temporary Protected Status under section 244
of the Act for the period of time in that status, as evidenced by an
employment authorization document issued by the Service; or
* * * * *
(c) * * *
(8) An alien who has filed a complete application for asylum or
withholding of deportation or removal pursuant to 8 CFR part 208, whose
application has not been decided, and who is eligible to apply for
employment authorization under Sec. 208.7 of this chapter because the
150-day period set forth in that section has expired. Employment
authorization may be granted according to the provisions of Sec. 208.7
of this chapter in increments to be determined by the Commissioner and
shall expire on a specified date;
* * * * *
(10) An alien who has filed an application for suspension of
deportation under section 243 of the Act or cancellation of removal
pursuant to section 240A of the Act. Employment authorization shall be
granted in increments not exceeding one year during the period the
application is pending (including any period when an administrative
appeal or judicial review is pending) and shall expire on a specified
date;
* * * * *
(12) [Reserved]
* * * * *
(18) An alien against whom a final order of deportation or removal
exists and who is released on an order of supervision under the
authority contained in section 241(a)(3) of the Act may be granted
employment authorization in the discretion of the district director
only if the alien cannot be removed due to the refusal of all countries
designated by the alien or under section 241 of the Act to receive the
alien, or because the removal of the alien is otherwise impracticable
or contrary to the public interest. Additional factors which may be
considered by the district director in adjudicating the application for
employment authorization include, but are not limited to, the
following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the
United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be
removed from the United States.
* * * * *
PART 286--IMMIGRATION USER FEE
144. The authority citation for part 286 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.
145. In Sec. 286.9, paragraph (b)(3) is revised to read as follows:
Sec. 286.9 Fee for processing applications and issuing documentation
at land border Ports-of-Entry.
* * * * *
(b) * * *
(3) A Mexican national in possession of a valid nonresident alien
border crossing card or nonimmigrant B-1/B-2 visa who is required to be
issued Form I-94, Arrival/Departure Record, pursuant to Sec. 235.1(f)
of this chapter, must remit the required fee for issuance of Form I-94
upon determination of admissibility.
* * * * *
PART 287--FIELD OFFICERS; POWERS AND DUTIES
146. The authority citation for part 287 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8
CFR part 2.
[[Page 512]]
147. Section 287.3 is revised to read as follows:
Sec. 287.3 Disposition of cases of aliens arrested without warrant.
(a) Examination. An alien arrested without a warrant of arrest
under the authority contained in section 287(a)(2) of the Act will be
examined by an officer other than the arresting officer. If no other
qualified officer is readily available and the taking of the alien
before another officer would entail unnecessary delay, the arresting
officer, if the conduct of such examination is a part of the duties
assigned to him or her, may examine the alien.
(b) Determination of proceedings. If the examining officer is
satisfied that there is prima facie evidence that the arrested alien
was entering, attempting to enter, or is present in the United States
in violation of the immigration laws, the examining officer will refer
the case to an immigration judge for further inquiry in accordance with
8 CFR parts 235, 239, or 240, order the alien removed as provided for
in section 235(b)(1) of the Act and Sec. 235.3(b) of this chapter, or
take whatever other action may be appropriate or required under the
laws or regulations applicable to the particular case.
(c) Notifications and information. Except in the case of an alien
subject to the expedited removal provisions of section 235(b)(1)(A) of
the Act, all aliens arrested without warrant and placed in formal
proceedings under section 238 or 240 of the Act will be advised of the
reasons for his or her arrest and the right to be represented at no
expense to the Government. The examining officer will provide the alien
with a list of the available free legal services provided by
organizations and attorneys qualified under 8 CFR part 3 and
organizations recognized under Sec. 292.2 of this chapter that are
located in the district where the hearing will be held. The examining
officer shall note on Form I-862 that such a list was provided to the
alien. The officer will also advise the alien that any statement made
may be used against him or her in a subsequent proceeding.
(d) Custody procedures. Unless voluntary departure has been granted
pursuant to subpart C of 8 CFR part 240, a determination will be made
within 24 hours of the arrest whether the alien will be continued in
custody or released on bond or recognizance and whether a notice to
appear and warrant of arrest as prescribed in 8 CFR parts 236 and 239
will be issued.
148. In Sec. 287.4, paragraph (d) is revised to read as follows:
Sec. 287.4 Subpoena.
* * * * *
(d) Invoking aid of court. If a witness neglects to appear and
testify as directed by the subpoena served upon him or her in
accordance with the provisions of this section, the officer or
immigration judge issuing the subpoena shall request the United States
Attorney for the district in which the subpoena was issued to report
such neglect or refusal to the United States District Court and to
request such court to issue an order requiring the witness to appear
and testify and to produce the books, papers, or documents designated
in the subpoena.
149. In Sec. 287.5, paragraphs (b) through (f) are revised to read
as follows:
Sec. 287.5 Exercise of power by immigration officers.
* * * * *
(b) Power and authority to patrol the border. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the power to patrol the border conferred by section 287(a)(3)
of the Act:
(1) border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Immigration inspectors (seaport operations only);
(4) Adjustments officers and deportation officers when in the
uniform of an immigration inspector and performing inspections or
supervising other immigration inspectors performing inspections
(seaport operations only);
(5) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(6) Immigration officers who need the authority to patrol the
border under section 287(a)(3) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commission.
(c) Power and authority to arrest. (1) Arrests of aliens under
section 287(a)(2) of the Act for immigration violations. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the arrest power conferred by section 287(a)(2) of the Act and
in accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors;
(v) Adjudications officers;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(vii) Immigration officers who need the authority to arrest aliens
under section 287(a)(2) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner.
(2) Arrests of persons under section 287(a)(4) of the Act for
felonies regulating the admission or removal of aliens. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the arrest power conferred by section 287(a)(4) of the Act and
in accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors;
(v) Adjudications officers;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(vii) Immigration officers who need the authority to arrest persons
under section 287(a)(4) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
(3) Arrests of persons under section 287(a)(5)(A) of the Act for
any offense against the United States. The following immigration
officers who have successfully completed basic immigration law
enforcement training are hereby authorized and designated to exercise
the arrest power conferred by section 287(a)(5)(A) of the Act in
accordance with Sec. 287.8(c):
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Immigration inspectors (permanent full-time immigration
inspectors only);
(v) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(vi) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(vii) Immigration officers who need the authority to arrest persons
under
[[Page 513]]
section 287(a)(5)(A) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
(4) Arrests of persons under section 287(a)(5)(B) of the Act for
any felony. (i) Section 287(a)(5)(B) of the Act authorizes designated
immigration officers, as listed in paragraph (c)(4)(iii) of this
section, to arrest persons, without warrant, for any felony cognizable
under the laws of the United States if:
(A) The immigration officer has reasonable grounds to believe that
the person to be arrested has committed or is committing such a felony;
(B) The immigration officer is performing duties relating to the
enforcement of the immigration laws at the time of the arrest;
(C) There is a likelihood of the person escaping before a warrant
can be obtained of his or her arrest; and
(D) The immigration officer has been certified as successfully
completing a training program that covers such arrests and the
standards with respect to the enforcement activities of the Service as
defined in Sec. 287.8.
(ii) The following immigration officers who have successfully
completed basic immigration law enforcement training are hereby
authorized and designated to exercise the arrest power conferred by
section 287(a)(5)(B) of the Act and in accordance with Sec. 287.8(c):
(A) Border patrol agents, including aircraft pilots;
(B) Special agents;
(C) Deportation officers;
(D) Immigration inspectors (permanent full-time immigration
inspectors only);
(E) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(F) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(G) Immigration officers who need the authority to arrest persons
under section 287(a)(5)(B) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner with the approval of
the Deputy Attorney General.
(iii) Notwithstanding the authorization and designation set forth
in paragraph (c)(4)(ii) of this section, no immigration officer is
authorized to make an arrest for any felony under the authority of
section 287(a)(5)(B) of the Act until such time as he or she has been
certified by the Director of Training as successfully completing a
training course encompassing such arrests and the standards for
enforcement activities as defined in Sec. 287.8. Such certification
shall be valid for the duration of the immigration officer's continuous
employment, unless it is suspended or revoked by the Commissioner or
the Commissioner's designee for just cause.
(5) Arrests of persons under section 274(a) of the Act who bring
in, transport, or harbor certain aliens, or induce them to enter.
(i) Section 274(a) of the Act authorizes designated immigration
officers, as listed in paragraph (c)(5)(ii) of this section, to arrest
persons who bring in, transport, or harbor aliens, or induce them to
enter the United States in violation of law. When making an arrest, the
designated immigration officer shall adhere to the provisions of the
enforcement standard governing the conduct of arrests in Sec. 287.8(c).
(ii) The following immigration officers who have successfully
completed basic immigration law enforcement training are authorized and
designated to exercise the arrest power conferred by section 274(a) of
the Act:
(A) Border patrol agents, including aircraft pilots;
(B) Special agents;
(C) Deportation officers;
(D) Immigration inspectors;
(E) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(F) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(G) Immigration officers who need the authority to arrest persons
under section 274(a) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
(6) Custody and transportation of previously arrested persons. In
addition to the authority to arrest pursuant to a warrant of arrest in
paragraph (e)(2)(i) of this section, detention enforcement officers who
have successfully completed basic immigration law enforcement training
are hereby authorized and designated to take and maintain custody of
and transport any person who has been arrested by an immigration
officer pursuant to paragraphs (c)(1) through (c)(5) of this section.
(d) Power and authority to conduct searches. The following
immigration officers who have successfully completed basic immigration
law enforcement training are hereby authorized and designated to
exercise the power to conduct searches conferred by section 287(c) of
the Act:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Immigration inspectors;
(5) Adjudications officers;
(6) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(7) Immigration officers who need the authority to conduct searches
under section 287(c) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner.
(e) Power and authority to execute warrants. (1) Search warrants.
The following immigration officers who have successfully completed
basic immigration law enforcement training are hereby authorized and
designated to exercise the power conferred by section 287(a) of the Act
to execute a search warrant:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(iv) Immigration officers who need the authority to execute search
warrants under section 287(a) of the Act in order to effectively
accomplish their individual missions and who are designated,
individually or as a class, by the Commissioner with the approval of
the Deputy Attorney General.
(2) Issuance of arrest warrants for immigration violations. A
warrant of arrest may be issued only by the following immigration
officers:
(i) District directors (except foreign);
(ii) Deputy district directors (except foreign);
(iii) Assistant district directors for investigations;
(iv) Deputy assistant district directors for investigations;
(v) Assistant district directors for deportation;
(vi) Deputy assistant district directors for deportation;
(vii) Assistant district directors for examinations;
(viii) Deputy assistant district directors for examinations;
(ix) Officers in charge (except foreign);
[[Page 514]]
(x) Assistant officers in charge (except foreign);
(xi) Chief patrol agents;
(xii) Deputy chief patrol agents;
(xiii) Associate chief patrol agents;
(xiv) Assistant chief patrol agents;
(xv) Patrol agents in charge;
(xvi) The Assistant Commissioner, Investigations;
(xvii) Institutional Hearing Program Directors;
(xviii) Area Port Directors;
(xix) Port Directors; or
(xx) Deputy Port Directors.
(3) Service of warrant of arrests for immigration violations. The
following immigration officers who have successfully completed basic
immigration law enforcement training are hereby authorized and
designated to exercise the power pursuant to section 287(a) of the Act
to execute warrants of arrest for administrative immigration violations
issued under section 236 of the Act or to execute warrants of criminal
arrest issued under the authority of the United States:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Detention enforcement officers (warrants of arrest for
administrative immigration violations only);
(v) Immigration inspectors;
(vi) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(vii) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(viii) Immigration officers who need the authority to execute
arrest warrants for immigration violations under section 287(a) of the
Act in order to effectively accomplish their individual missions and
who are designated, individually or as a class, by the Commissioner,
for warrants of arrest for administrative immigration violations, and
with the approval of the Deputy Attorney General, for warrants of
criminal arrest.
(4) Service of warrant of arrests for non-immigration violations.
The following immigration officers who have successfully completed
basic immigration law enforcement training are hereby authorized and
designated to exercise the power to execute warrants of criminal arrest
for non-immigration violations issued under the authority of the United
States:
(i) Border patrol agents, including aircraft pilots;
(ii) Special agents;
(iii) Deportation officers;
(iv) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(v) Immigration officers who need the authority to execute warrants
of arrest for non-immigration violations under section 287(a) of the
Act in order to effectively accomplish their individual missions and
who are designated, individually or as a class, by the Commissioner
with the approval of the Deputy Attorney General.
(f) Power and authority to carry firearms. The following
immigration officers who have successfully completed basic immigration
enforcement training are hereby authorized and designated to exercise
the power conferred by section 287(a) of the Act to carry firearms
provided that they are individually qualified by training and
experience to handle and safely operate the firearms they are permitted
to carry, maintain proficiency in the use of such firearms, and adhere
to the provisions of the enforcement standard governing the use of
force in Sec. 287.8(a):
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Detention enforcement officers;
(5) Immigration inspectors;
(6) Adjudications officers when in the uniform of an immigration
inspector and performing inspections or supervising other immigration
inspectors performing inspections;
(7) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(8) Immigration officers who need the authority to carry firearms
under section 287(a) of the Act in order to effectively accomplish
their individual missions and who are designated, individually or as a
class, by the Commissioner with the approval of the Deputy Attorney
General.
150. Section 287.7 is revised to read as follows:
Sec. 287.7 Detainer provisions under section 287(b)(3) of the Act.
(a) Detainers in general. Detainers are issued pursuant to sections
236 and 287 of the Act and this chapter. Any authorized Service
official may at any time issue a Form I-247, Immigration Detainer-
Notice of Action, to any other Federal, State, or local law enforcement
agency. A detainer serves to advise another law enforcement agency that
the Service seeks custody of an alien presently in the custody of that
agency, for the purpose of arresting and removing the alien. The
detainer is a request that such agency advise the Service, prior to
release of the alien, in order for the Service to arrange to assume
custody, in situations when gaining immediate physical custody is
either impracticable or impossible.
(b) Authority to issue detainers. The following officers are
authorized to issue detainers:
(1) Border patrol agents, including aircraft pilots;
(2) Special agents;
(3) Deportation officers;
(4) Immigration inspectors;
(5) Adjudications officers;
(6) Supervisory and managerial personnel who are responsible for
supervising the activities of those officers listed above; and
(7) Immigration officers who need the authority to issue detainers
under section 287(d)(3) of the Act in order to effectively accomplish
their individual missions and who are designated individually or as a
class, by the Commissioner.
(c) Availability of records. In order for the Service to accurately
determine the propriety of issuing a detainer, serving a notice to
appear, or taking custody of an alien in accordance with this section,
the criminal justice agency requesting such action or informing the
Service of a conviction or act that renders an alien inadmissible or
removable under any provision of law shall provide the Service with all
documentary records and information available from the agency that
reasonably relates to the alien's status in the United States, or that
may have an impact on conditions of release.
(d) Temporary detention at Service request. Upon a determination by
the Service to issue a detainer for an alien not otherwise detained by
a criminal justice agency, such agency shall maintain custody of the
alien for a period not to exceed 48 hours, excluding Saturdays,
Sundays, and holidays in order to permit assumption of custody by the
Service.
(e) Financial responsibility for detention. No detainer issue as a
result of a determination made under this chapter shall incur any
fiscal obligation on the part of the Service, until actual assumption
of custody by the Service, except as provided in paragraph (d) of this
section.
PART 299--IMMIGRATION FORMS
151. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
152. Section 299.1 is amended by:
[[Page 515]]
a. Revising the entries for Forms ``I-147'', ``I-205'', ``I-246'',
``I-247'', ``I-259'', ``I-284'', ``I-286'', ``I-291'', ``I-296'', ``I-
310'', ``I-408'', ``I-426'', ``I-541'', ``I-589'', ``I-775'', ``I-
851'', and ``I-851A'';
b. Removing the entries for Forms ``I-122'', ``I-221'', ``I-259C'',
``I-290A'', and ``I-444'', and by
c. Adding the entries for Forms ``I-94T'', ``I-99'', ``I-148'',
``I-160'', ``I-210'', ``I-213'', ``I-217'', ``I-220A'', ``I-220B'',
``I-241'', ``I-261'', ``I-270'', ``I-275'', ``I-294'', ``I-407'', ``I-
546'', ``I-701'', ``I-770'', ``I-771'', ``I-826'', ``I-827A'', ``I-
827B'', ``I-860'', ``I-862'', and ``I-863'', in proper numerical
sequence, to the listing of forms, to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * *
* * *
I-94T.......................... 09-22-87 Arrival-Departure
Record (Transit
without visa).
* * * *
* * *
I-99........................... 04-01-97 Notice of Revocation
and Penalty.
* * * *
* * *
I-147.......................... 04-01-97 Notice of Temporary
Inadmissibility to
U.S.
I-148.......................... 04-01-97 Notice of Permanent
Inadmissibility.
* * * *
* * *
I-160.......................... 04-01-97 Notice of Parole/
Lookout Intercept.
* * * *
* * *
I-205.......................... 04-01-97 Warrant of Removal.
I-210.......................... 04-01-97 Voluntary Departure
Notice.
* * * *
* * *
I-213.......................... 04-01-97 Record of Deportable/
Inadmissible Alien.
I-217.......................... 04-01-97 Information for Travel
Document or Passport.
I-220A......................... 04-01-97 Order of Release on
Recognizance.
I-220B......................... 04-01-97 Order of Supervision.
* * * *
* * *
I-241.......................... 04-01-97 Request for Travel
Document to Country
Designated by Alien.
* * * *
* * *
I-246.......................... 04-01-97 Application for Stay of
Removal.
I-247.......................... 04-01-97 Immigration Detainer--
Notice of Action.
I-259.......................... 04-01-97 Notice to Detain,
Deport, Remove, or
Present Aliens.
* * * *
* * *
I-261.......................... 04-01-97 Additional Charges of
Removability.
* * * *
* * *
I-270.......................... 04-01-97 Request for Consent to
Return Person to
Canada.
I-275.......................... 04-01-97 Withdrawal of
Application/Consular
Notification.
I-284.......................... 04-01-97 Notice to
Transportation Line
Regarding Deportation
and Detention Expenses
of Detained Alien.
I-286.......................... 04-01-97 Notification to Alien
of Conditions of
Release or Detention.
* * * *
* * *
I-291.......................... 04-01-97 Decision on Application
for Status as
Permanent Resident.
* * * *
* * *
I-294.......................... 04-01-97 Notice of Country to
Which Deportation has
been Directed and
Penalty for Reentry
without Permission.
I-296.......................... 04-01-97 Notice to Alien Ordered
Removed.
* * * *
* * *
I-310.......................... 04-01-97 Bond for Payment of
Sums and Fines Imposed
under Immigration and
Nationality Act (Term
or Single Entry).
* * * *
* * *
I-407.......................... 04-01-97 Abandonment by Alien of
Status as Lawful
Permanent Resident.
I-408.......................... 04-01-97 Application to Pay Off
or Discharge Alien
Crewman.
* * * *
* * *
I-426.......................... 04-01-97 Immediate and
Continuous Transit
Agreement Between a
Transportation Line
and United States of
America (special
direct transit
procedure).
* * * *
* * *
I-541.......................... 04-01-97 Order of Denial of
Application for
Extension of Stay or
Student Employment or
Student Transfer.
[[Page 516]]
* * * *
* * *
I-546.......................... 04-01-97 Order to Appear--
Deferred Inspection.
* * * *
* * *
I-589.......................... 04-01-97 Application for Asylum
and Withholding of
Removal.
* * * *
* * *
I-701.......................... 04-01-97 Detainee Transfer
Worksheet.
* * * *
* * *
I-770.......................... 04-01-97 Notice of Rights and
Request for
Disposition.
I-771.......................... 04-01-97 Bond Computation
Worksheet.
I-775.......................... 04-01-97 Visa Waiver Pilot
Program Agreement.
* * * *
* * *
I-826.......................... 04-01-97 Notice of Rights.
I-827A......................... 04-01-97 Request for
Disposition.
* * * *
* * *
I-827B......................... 04-01-97 Request for
Disposition.
I-851.......................... 04-01-97 Notice of Intent to
Issue Final
Administrative Removal
Order.
I-851A......................... 04-01-97 Final Administrative
Removal Order.
* * * *
* * *
I-860.......................... 04-01-97 Notice and Order of
Expedited Removal.
I-862.......................... 04-01-97 Notice to Appear.
I-863.......................... 04-01-97 Notice of Referral to
Immigration Judge.
* * * *
* * *
------------------------------------------------------------------------
153. Section 299.5 is amended by:
a. Removing the entry for Form ``I-259C''; and by
b. Revising the entries for Forms ``I-246'' and ``I-589'', and to
read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
INS form No. INS form title assigned OMB
control no.
------------------------------------------------------------------------
* * * *
* * *
I-246.......................... Application for Stay of 1115-0055
Removal.
* * * *
* * *
I-589.......................... Application for Asylum 1115-0086
and Withholding of
Removal.
* * * *
* * *
------------------------------------------------------------------------
PART 316--GENERAL REQUIREMENTS FOR NATURALIZATION
154. The authority citation for part 316 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1181, 1182, 1443, 1447; 8 CFR part 2.
155. Section 316.5 is amended by revising paragraph (c)(3) to read
as follows:
Sec. 316.5 Residence in the United States.
* * * * *
(c) * * *
(3) Removal and return. Any departure from the United States while
under an order of removal (including previously issued orders of
exclusion or deportation) terminates the applicant's status as a lawful
permanent resident and, therefore, disrupts the continuity of residence
for purposes of this part.
* * * * *
PART 318--PENDING REMOVAL PROCEEDINGS
156. The heading for part 318 is revised as set forth above.
157. The authority citation for part 318 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1252, 1429, 1443; 8 CFR part 2.
158. Section 318.1 is revised to read as follows:
Sec. 318.1 Warrant of arrest.
For the purposes of section 318 of the Act, a notice to appear
issued under 8 CFR part 239 (including a charging document issued to
commence proceedings under sections 236 or 242 of the Act prior to
April 1, 1997) shall be regarded as a warrant of arrest.
PART 329--SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED:
NATURALIZATION BASED ON ACTIVE DUTY SERVICE IN THE UNITED STATES
ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES.
159. The authority citation for part 329 is revised to read as
follows:
[[Page 517]]
Authority: 8 U.S.C. 1103, 1440, 1443; 8 CFR part 2.
160. Section 329.2 is amended by revising paragraph (e)(3) to read
as follows:
Sec. 329.2 Eligibility.
* * * * *
(e) * * *
(3) The applicant may be naturalized even if an outstanding notice
to appear pursuant to 8 CFR part 239 (including a charging document
issued to commence proceedings under sections 236 or 242 of the Act
prior to April 1, 1997) exists.
Dated: December 24, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-33166 Filed 12-27-96; 12:10 pm]
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