[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Proposed Rules]
[Pages 47205-47209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23906]



[[Page 47205]]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 236, 240, and 241

[INS NO. 1847-97; AG Order No. 2176-98]
RIN 1115-AE82


Surrender of Aliens Ordered Removed From the United States

AGENCY: Immigration and Naturalization Service, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service regulations by requiring aliens subject to a final order of 
removal to surrender to the Service. This rule also establishes 
procedures for surrender, and bars persons violating these procedures 
from obtaining discretionary immigration benefits.

DATES: Written comments must be submitted on or before November 3, 
1998.

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 reference INS number 1847-97 
on all 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:
William C. Birkett, Office of the General Counsel, Immigration and 
Naturalization Service, 425 ``I'' Street NW., Room 6100, Washington, DC 
20536, telephone (202) 514-5001.

SUPPLEMENTARY INFORMATION: This proposed rule establishes procedures 
requiring aliens who have received a final order of removal to 
surrender to the Immigration and Naturalization Service (Service) for 
removal from the United States. Section 241(a) of the Immigration and 
Nationality Act (Act), as amended by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA), generally requires the 
detention and removal of aliens subject to a final order of removal 
within 90 days. Some aliens, however, may not be in Service custody at 
the time that the order of removal becomes administratively final.
    Although the Service may apprehend and detain an alien subject to a 
final order of removal at any time to enforce the order, the proposed 
rule is necessary to clarify that an alien not detained at the time 
that an order of removal becomes final has a legal obligation to 
surrender expeditiously thereafter for removal. Proposed Sec. 241.13 
requires surrender within specified periods after the removal order 
becomes final. The periods specified concern the alien's obligation to 
surrender, and in no way limit the Service's authority to enforce a 
final order of removal at any time. Generally, surrender will be to the 
Service district office with jurisdiction over the place where the 
immigration judge completed the removal proceeding, but the Service 
may, in its discretion, specify an alternate location or other term of 
surrender. Such alternative locations and terms may be necessary, for 
example, to expedite processing and removal (often by mutual agreement 
of the parties). When the Service changes the location and terms of 
surrender, the Service will notify the alien of the new terms of 
surrender in person or by regular mail at the last address the alien 
provided to the Service. This notice requirement, however, will not 
restrict the Service's authority under section 241(a) to arrest and 
remove the alien at any time.
    In general, the proposed rule provides that the period of time for 
surrender will be 10 calendar days from the date of the final order 
from the Immigration Judge or the Board of Immigration Appeals. If the 
final day for surrender falls on a Saturday, Sunday, Federal holiday, 
or other day when the Service office designated for surrender is 
closed, the alien must surrender on the first business day thereafter. 
An alien who violates an order granting voluntary departure must 
surrender on the business day following the date the alternate order of 
removal becomes effective. These periods of time, as with other 
conditions of surrender, are subject to change in accordance with 8 CFR 
241.13(h).
    The Department welcomes, in particular, comments from bonding 
companies concerning the effect the proposed rule would have on their 
obligation to produce bonded aliens.
    Proposed Sec. 241.14 provides for notice of the duty to surrender 
in the Notice to Appear, and at various points during the removal 
proceeding. The duty to surrender attaches upon service of the Notice 
to Appear pursuant to section 239(a)(1) of the Act, and does not depend 
upon receipt of any of the subsequent notices. Proposed 
Sec. 241.14(b)(2) provides that the immigration judge will notify the 
alien of the location to which the alien must surrender in the event 
that the alien becomes subject to a final order of removal.
    Proposed Sec. 241.15 bars an alien failing to comply with the duty 
to surrender from discretionary relief under sections 208, 212(h), 
212(i), 240A, 240B, 245, 248 and 249 of the Act at any time while he or 
she is still in the United States, and for 10 years from the time of 
any subsequent departure. The Attorney General is authorized to 
exercise her broad discretion over immigration matters through 
rulemaking to resolve matters of general applicability. ``It is a well-
established principle of administrative law that an agency to whom 
Congress grants discretion may elect between rulemaking and ad hoc 
adjudication to carry out its mandate.'' Yang v. INS, 79 F.3d 932, 936 
(9th Cir. 1996) (citing American Hosp. Assoc. v. NLRB, 499 U.S. 606, 
611-13 (1991)). Agencies may resolve matters of general applicability 
through the promulgation of rules ``even if a statutory scheme requires 
individualized determination * * * unless Congress has expressed an 
intent to withhold that authority.'' American Hosp. Assoc. v. NLRB, 
supra. This principle has been recognized by courts reviewing the 
Department's rulemaking under the Act. Reno v. Flores, 507 U.S. 292 
(1993) (holding that promulgation of rule precluding the release of 
detained juveniles to anyone other than parents, close relatives, and 
guardians is a permissible exercise of Attorney General's discretion); 
Yang, supra, (holding that promulgation of rule denying asylum to 
aliens who were firmly resettled prior to arrival in the U.S. is a 
permissible exercise of Attorney General's discretion).
    Denying discretionary forms of relief to aliens who fail to 
surrender for removal is a rational exercise of the Attorney General's 
discretion. Aliens subject to a final order who fail to surrender for 
removal as required by the Attorney General are fugitives from justice 
who frustrate her efforts to enforce the Act. See, e.g, Bar-Levy v. 
INS, 990 F.2d 33, 34 (2d Cir. 1993) (holding that court would exercise 
its discretion to dismiss appeal because petitioner, as an alien who 
failed to surrender for deportation, was a ``fugitive from justice''); 
Ruiz-Rivera v. Moyer, 70 F.3d 498, 500 (7th Cir. 1995) (noting, in 
action brought by bond obligor challenging INS decision to forfeit her 
bond, that court had denied emergency motion to stay deportation filed 
by the subject of the bond because after failing to surrender he became 
a ``fugitive'' undeserving of the resources of the court). The Attorney 
General expends considerable resources detecting and apprehending 
inadmissible and deportable aliens, and

[[Page 47206]]

provides extensive procedural protections to ensure that the claims of 
those contesting removal are properly adjudicated. By denying 
discretionary relief to aliens who fail to surrender for removal, the 
proposed rule will recognize the serious nature of their disregard for 
her authority, see Sec. 243(a)(1) of the Act (providing criminal 
penalties in the form of fine or imprisonment for failing to surrender 
for removal as required by the Attorney General), as well as the 
Attorney General's interest in discouraging behavior that impedes her 
ability to enforce the Act effectively.
    The proposed exercise of discretion is also consistent with the 
statutory bars to relief existing in the Act, as well as a precedent 
decision of the Board of Immigration Appeals. Section 240(b)(7) of the 
Act bars aliens who fail to appear for a removal proceeding from relief 
under sections 240A (cancellation of removal), 240B (voluntary 
departure), 245 (adjustment of status), 248 (change of status), and 249 
(registry) of the Act for ten years after the date of entry of the 
final order of removal. Section 240B(d) of the Act bars aliens who fail 
to depart in the time specified under an order of voluntary departure 
from relief for ten years under the same sections of the Act. In Matter 
of Barocio, 19 I&N 255 (BIA 1985), the Board of Immigration Appeals 
held that aliens who fail to appear for deportation after notification 
by the Service do not merit the favorable exercise of discretion 
necessary to reopen deportation proceedings.
    Section 241.15 also provides for a waiver of the bars to relief, in 
the discretion of the district director, upon demonstration that the 
failure to surrender was due to exceptional circumstances beyond the 
control of the alien. An alien who failed to surrender for removal 
whose case is subsequently reopened by an immigration judge or the 
Board of Immigration Appeals will not be subject to the bars to 
discretionary relief.
    Proposed Sec. 241.16 contains certain rules of construction. 
Nothing in this rule is intended to abrogate the Service's duty to stay 
removal where required by the Act, or as ordered by an immigration 
judge, the Board of Immigration Appeals, or a Federal Court. In 
addition, surrendering in compliance with this rule does not operate to 
disqualify an alien from any benefit to which he or she is otherwise 
entitled under the Act.
    Revisions to four other sections of title 8 are necessary in order 
to implement fully the duty to surrender for removal. Proposed 
Sec. 3.2(c)(5) generally precludes reopening removal proceedings by the 
Board of Immigration Appeals in the case of an alien who fails to 
surrender for removal. Proposed Sec. 3.23(b)(5) generally precludes 
reopening proceedings by an immigration judge in the case of an alien 
who fails to surrender for removal. In each instance, a motion to 
reopen is not precluded if the alien demonstrates by clear and 
convincing evidence both that the failure to surrender was due to 
exceptional circumstances beyond the control of the alien, and that the 
alien surrendered for removal as soon as possible after the 
circumstance that prevented a timely surrender had passed. This is 
consistent with existing precedent of the Board of Immigration Appeals 
recognizing that aliens who violate a lawful order of deportation by 
failing to report for removal do not merit the favorable exercise of 
discretion required to reopen proceedings. Failing to surrender also 
does not preclude reopening if a district director waives the 
disabilities for doing so in accordance with proposed Sec. 241.15(c).
    Proposed Sec. 236.1(a)(6) provides that no alien may be released 
from custody without agreeing to surrender for removal in accordance 
with this rule. This rule also proposes to amend Sec. 240.26(a) to 
require that all aliens seeking voluntary departure agree to surrender 
for removal in accordance with Sec. 241.13.
    The regulations regarding surrender are critical to the removal 
process, but the initial design of these processes has involved complex 
logistical coordination both within the Service and between the Service 
and the Executive Office for Immigration Review (EOIR). As a 
consequence, the provisions contained in this proposed rule were not 
ready for publication with the interim rule implementing IIRIRA at 62 
FR 10312, and are now being published as a separate proposed rule to 
ensure adequate opportunity for full public notice and comment.
    Prior to the effective date of this rule, those failing to report 
for final orders of removal will be subject to existing law, including 
the precedent decisions of the Board of Immigration Appeals regarding 
limitations on discretionary relief for such persons. The procedures 
proposed by this rule will apply only to those issued a Notice to 
Appear on or after the final rule's effective date.

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 this rule will not have a significant economic 
impact on a substantial number of small entities because it affects 
legal obligations of individual aliens ordered removed from the United 
States, not small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Act of 1996 (5 U.S.C. 804(2)). This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, 
Regulatory Planning and Review. Accordingly, this regulation has been 
submitted to the Office of Management and Budget for review.

Executive Order 12988: Civil Justice Reform

    This proposed rule meets the application standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 12612: Federalism

    It is determined, in accordance with Executive Order 12612, that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

[[Page 47207]]

8 CFR Part 240

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

    Administrative practice and procedure, Aliens, Immigration.

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

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1226, 1362; 28 U.S.C. 
509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 
Comp., p. 1002.

    2. Section 3.2 is amended by adding new paragraph (c)(5) to read as 
follows:


Sec. 3.2  Reopening or Reconsideration before the Board of Immigration 
Appeals.

* * * * *
    (c) * * *
    (5) Failure to surrender for removal. A motion to reopen removal 
proceedings will not be granted in the case of an alien who failed to 
surrender for removal in accordance with Sec. 241.13 of this chapter, 
unless:
    (i) The district director waived the consequences for failing to 
surrender for removal in accordance with Sec. 241.15(c) of this 
chapter; or
    (ii) The alien presents documentary evidence that demonstrates, by 
clear and convincing evidence, that
    (A) The failure to surrender for removal was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act; and
    (B) The alien surrendered for removal as soon as possible after the 
circumstances that prevented a timely surrender had passed.
    (iii) Nothing in paragraph (c)(5)(ii) of this section may be 
construed as providing the right to reopen a proceeding solely to 
consider whether an alien complied with the duty to surrender for 
removal, or whether exceptional circumstances excuse the alien's 
failure to do so.
* * * * *
    3. Section 3.23 is amended by adding new paragraph (b)(5) to read 
as follows:


Sec. 3.23  Reopening for reconsideration before the Immigration Court.

* * * * *
    (b) * * *
    (5) Failure to surrender for removal. A motion to reopen removal 
proceedings will not be granted in the case of an alien who failed to 
surrender for removal in accordance with Sec. 241.13 of this chapter, 
unless:
    (i) The district director waived the consequences for failing to 
surrender for removal in accordance with Sec. 241.15(c) of this 
chapter; or
    (ii) The alien presents documentary evidence that demonstrates, by 
clear and convincing evidence, that
    (A) The failure to surrender for removal was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act; and
    (B) The alien surrendered for removal as soon as possible after the 
circumstances that prevented a timely surrender had passed.
    (iii) Nothing in paragraph (b)(5)(ii) of this section may be 
construed as providing the right to reopen a proceeding solely to 
consider whether an alien complied with the duty to surrender for 
removal, or whether exceptional circumstances excuse the alien's 
failure to do so.

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    4. The authority citation for part 236 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8 
CFR part 2.

    5. Section 236.1 is amended by redesignating paragraphs (c) (1), 
(2), (3), (4), and (5) as (c) (1), (2), (3), (4), (5), and (6) 
respectively, and by adding, after the heading ``Custody issues and 
release procedures'', the following new paragraph (c)(1), to read as 
follows:


Sec. 236.1  Apprehension, custody, and detention.

* * * * *
    (c) * * *
    (1) No alien may be released from custody unless the alien agrees 
to surrender for removal in accordance with Sec. 241.13 of this chapter 
should the alien become subject to a final order of removal.
* * * * *

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    6. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.

    7. Section 240.26 is amended by adding a sentence at the end of 
paragraph (a), to read as follows:


Sec. 240.26  Voluntary departure--authority of the Executive Office for 
Immigration Review.

    (a) * * * In addition, no alien may be granted voluntary departure 
unless the alien agrees to surrender for removal in accordance with 
Sec. 241.13(c) of this chapter.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    8. The authority citation for part 241 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and 
1330; 8 CFR part 2.

    9. In part 241, subpart A, a new Sec. 241.13 is added to read as 
follows:


Sec. 241.13  Duty to surrender.

    Aliens subject to a final order of removal shall be taken into 
custody by the Service and removed. If not in the custody of the 
Service, however, aliens subject to a final order of removal must 
surrender for removal as provided in this section. Such surrenders must 
be made during regular business hours to the Service district office 
with jurisdiction over the place where the immigration judge completed 
the removal proceeding. Nothing in this part shall be construed as 
limiting the Service's authority to enforce a final order of removal at 
any time.
    (a) Immigration Judge.--(1) Aliens waiving appeal and aliens 
ordered removed in absentia. Aliens served with an order of removal 
issued by an immigration judge who waive appeal of the order, and 
aliens who are ordered removed in absentia, must surrender for removal 
within 10 calendar days of date of the order.
    (2) Aliens reserving appeal. Aliens who reserve appeal and are 
served with an order of removal issued by an immigration judge that 
becomes final due to expiration of the time to file an appeal must 
surrender for removal within 10 calendar days of the date that the 
appeal period expires. Aliens who reserve appeal and are served with an 
order of removal issued by an immigration judge that becomes final due 
to a subsequent waiver or withdrawal of appeal must surrender for 
removal within 10 calendar days of the date that the order becomes 
final.
    (b) Board of Immigration Appeals. Aliens who are served with an 
order of removal, or an order dismissing an appeal from an order of 
removal, issued by the Board of Immigration Appeals must surrender for 
removal within 10 calendar days of the date of the order.

[[Page 47208]]

    (c) Voluntary departure. Notwithstanding paragraphs (a) and (b) of 
this section, an alien granted voluntary departure who subsequently 
becomes subject to an alternate order of removal due to failure to 
depart as directed, failure to pay a bond in connection with voluntary 
departure, or failure to comply with any other required condition or 
term in connection with voluntary departure, must surrender for removal 
on the next business day thereafter.
    (d) Aliens in custody. (1) An alien who becomes subject to a final 
order of removal while in Service custody is thereby relieved of the 
duty to surrender for removal under this section.
    (2) An alien who becomes subject to a final order of removal while 
incarcerated in a local, State, or Federal facility must surrender for 
removal within 10 calendar days of the alien's release from that 
facility, without regard to whether the alien is released on parole, 
supervised release, or probation, and without regard to whether the 
alien may be arrested or imprisoned again for the same offense, unless 
the alien is detained by the Service at the time he or she is released. 
If the alien is detained by the Service at the time of release from a 
local, State, or Federal facility, the alien is thereby relieved of the 
duty to surrender for removal pursuant to paragraph (d)(1) of this 
section.
    (e) Other orders of removal. Subject to paragraph (d) of this 
section, aliens who are ordered removed, other than by an immigration 
judge or the Board of Immigration Appeals, must surrender for removal 
to the Service district office with jurisdiction over the place where 
the alien was ordered removed within 10 calendar days of the date that 
the order becomes final.
    (f) Requests for relief subsequent to final order of removal. An 
application for discretionary or other relief, including a motion to 
reopen, submitted by an alien to the Service, an immigration judge, or 
the Board of Immigration Appeals will have no effect on an alien's duty 
to surrender unless the alien has been served, prior to the expiration 
of the period to surrender, with a response granting the requested 
relief. A request for modification of the surrender terms submitted by 
an alien to the Service will have no effect on an alien's duty to 
surrender unless the alien has been served, prior to the expiration of 
the period to surrender, with a response granting the requested relief. 
The filing of a petition for review or writ of habeas corpus will 
likewise have no effect on an alien's duty to surrender for removal.
    (g) Weekends and holidays. If the last permissible day to surrender 
for removal falls on a Saturday, Sunday, Federal holiday, or other day 
when the Service office designated for surrender is closed, the alien 
must surrender for removal on the first business day thereafter.
    (h) Alternative surrender terms. Nothing in this part may be 
construed as limiting the Service's authority, in its sole and 
unreviewable discretion, to impose surrender requirements in addition 
to or varying from those generally applicable under this section. 
Changes to the surrender requirements may be made by mutual consent of 
the parties or, if without the alien's consent, the Service shall 
notify the alien in person or by regular mail at the last address given 
to the Service by the alien. This notice requirement shall not affect 
the Service's ability to arrest and remove an alien described in 
section 241(a) of the Immigration and Nationality Act at any time.
    10. In part 241, subpart A, a new Sec. 241.14 is added to read as 
follows:


Sec. 241.14  Notice of duty to surrender.

    (a) Notice to Appear. The Notice to Appear, Form I-862, will 
contain written notice of the duty to surrender.
    (b) Immigration judge. (1) The immigration judge will inform the 
alien orally and in writing that if the alien fails to appear for a 
hearing, and thereby becomes subject to a final order of removal, the 
alien will be required to surrender for removal.
    (2) In any case in which an immigration judge renders a decision, 
whether or not adverse to the alien, the immigration judge will inform 
the alien orally and in writing of the duty to surrender for removal 
and the location to which the alien must surrender in the event that 
the alien becomes subject to a final order of removal.
    (c) Board of Immigration Appeals. Orders of removal, and orders 
dismissing an appeal from an order of removal, issued by the Board of 
Immigration Appeals will contain written notice of the duty to 
surrender for removal.
    (d) Upon release from custody. As a condition of release from 
custody, whether under terms directed by the Service or subsequent to 
redetermination by an immigration judge or the Board of Immigration 
Appeals, the alien released must agree to surrender for removal if the 
alien becomes subject to a final order of removal. No alien will be 
released from custody without agreeing to surrender for removal as 
required by this part.
    (e) Upon grant of voluntary departure. No alien may be granted 
voluntary departure, whether by an immigration judge or the Board of 
Immigration Appeals, unless the alien agrees to surrender for removal 
as provided under Sec. 241.13(c) should the alien become subject to an 
alternate order of removal due to failure to depart as directed, 
failure to pay a bond in connection with voluntary departure, or 
failure to comply with any other required condition or term in 
connection with voluntary departure.
    (f) Duty to surrender not contingent upon notice. The duty to 
surrender for removal attaches upon service of a Notice to Appear 
pursuant to the terms of section 239(a)(1) of the Act, and is not 
contingent upon receipt of any of the notices enumerated in this 
section. If the address of the Service district office to which the 
alien is required to surrender changes subsequent to issuance of the 
notice in Sec. 241.14(b)(2), it is the alien's duty to determine the 
new address and surrender to that location.
    11. In part 241, subpart A, a new Sec. 241.15 is added to read as 
follows:


Sec. 241.15   Consequences of failure to surrender for removal; 
exception; waiver.

    (a) Consequences. (1) An alien who fails to surrender for removal 
as required by this part, and who remains in the United States in 
violation of law, is:
    (i) Subject to criminal prosecution under section 243 of the Act;
    (ii) Subject to civil penalties under section 274D of the Act; and
    (iii) Ineligible for discretionary relief under sections 208, 
212(h), 212(i), 240A, 240B, 245, 248 and 249 of the Act.
    (2) An alien who departs or is removed by the Service after failing 
to surrender for removal as required by this part is ineligible for the 
relief specified in paragraph (a)(1)(iii) of this section for 10 years 
after the alien's departure or removal.
    (b) Exception. An alien who fails to surrender for removal as 
required by this part is not ineligible for the relief specified in 
paragraph (a)(1)(iii) of this section if the underlying proceeding was 
reopened by the Board of Immigration Appeals in accordance with 
Sec. 3.2(c)(5) of this chapter or an immigration judge in accordance 
with Sec. 3.23(b)(5) of this chapter, provided that the alien does not 
again fail to surrender for removal subsequent to reopening of the 
underlying proceeding.
    (c) Waiver. The consequences of failing to surrender for removal 
may be waived, in the sole and unreviewable discretion of the district 
director, if:

[[Page 47209]]

    (1)(i) The failure to surrender was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act; and
    (ii) The alien surrenders for removal as soon as possible 
thereafter, and at that time presents documentary evidence that 
demonstrates, by clear and convincing evidence, the existence of 
exceptional circumstances.
    12. In part 241, subpart A, a new Sec. 241.16 is added to read as 
follows:


Sec. 241.16   Construction.

    (a) Order of removal. For purposes of Sec. 241.13, Sec. 241.14, and 
Sec. 241.15, the term order of removal shall apply to orders issued 
pursuant to the Act as amended by the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Public Law 104-208.
    (b) Detainers. Nothing in this part may be construed to relieve 
local, State, or Federal authorities from complying with the terms of a 
lawfully issued Service detainer.
    (c) Service. For purposes of Sec. 241.13, Sec. 241.14, and 
Sec. 241.15, in the case of an alien who is not personally served with 
an order of removal, service is sufficient if there is proof of 
attempted delivery to the last address provided by the alien in 
accordance with section 239(a)(1)(F) of the Act.
    (d) Effect on bonds. Failure to surrender as required by this part 
shall not constitute breach of any outstanding immigration bond. Such 
bond shall remain in full force and effect, however, and the Service 
may issue a demand on the obligor to produce the alien for removal.

    Dated: August 27, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-23906 Filed 9-3-98; 8:45 am]
BILLING CODE 4410-10-M