[Federal Register Volume 67, Number 90 (Thursday, May 9, 2002)]
[Proposed Rules]
[Pages 31157-31164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11141]


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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. 2579-2002]
RIN 1115-AE82


Requiring Aliens Ordered Removed from the United States To 
Surrender To the Immigration and Naturalization Service for Removal

AGENCY: Immigration and Naturalization Service, Justice, and Executive 
Office for Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: This supplementary proposed rule would amend the regulations 
of the Immigration and Naturalization Service (Service) and the 
Executive Office for Immigration Review (EOIR) by requiring aliens 
subject to a final order of removal to surrender themselves to the 
Service. This rule also establishes procedures for surrender and 
provides that aliens violating those procedures will be denied certain 
discretionary immigration benefits.

DATES: Written comments must be submitted on or before June 10, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division (HQRFS), Immigration and Naturalization 
Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure 
proper handling please reference INS No. 1847-97 on your 
correspondence. You may also submit comments electronically to the 
Service at [email protected]. When submitting comments electronically 
please include INS No. 1847-97 in the subject box. Comments are 
available for public inspection at the above address by calling (202) 
514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Lisa Batey, Office of the General 
Counsel, Immigration and Naturalization Service, 425 I Street NW, Room 
6100, Washington, DC 20536, telephone (503) 231-4049, or Cristina 
Hamilton, Office of the General Counsel, at (202) 514-2895. For matters 
relating to the Executive Office for Immigration Review: Chuck Adkins-
Blanch, General Counsel, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0470.

SUPPLEMENTARY INFORMATION:   

I. Background

    On September 4, 1998, the Department of Justice (Department) 
published a proposed rule in the Federal Register at 63 FR 47205, 
providing procedures that must be followed by an alien subject to a 
final order of removal. After a careful review, the Department is 
publishing a supplementary proposed rule on these issues. This rule is 
substantially the same as that proposed by former Attorney General 
Janet Reno, with some changes discussed herein. One principal change is 
that the requirements of this rule will not be limited only to aliens 
who are served with a Notice to Appear after the effective date of this 
rule; such a limitation, as stated in the 1998 proposed rule, would 
unnecessarily impair the effectiveness of this rule. Instead, this rule 
provides that the requirements of this rule shall also be applied to 
aliens who are currently in immigration proceedings, as long as they 
receive the requisite notice. Moreover, this supplementary proposed 
rule reflects a renumbering of the new regulatory provisions in light 
of other new sections that the Service has added to 8 CFR part 241 
after the proposed rule was published.

What Is the Purpose of This Supplementary Proposed Rule?

    The purpose of this supplementary proposed rule is to establish 
procedures requiring aliens who have received a final order of removal 
to surrender to the Service for removal from the United

[[Page 31158]]

States. The rule establishes procedures for surrender and provides that 
persons violating these procedures will be denied certain discretionary 
immigration benefits. 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. Many aliens, however, are not in Service custody at the time the 
order of removal becomes administratively final. In the past, fully 
``89 percent of non-detained aliens with final orders of [removal] 
failed to surrender for deportation when ordered to do so.'' 62 FR 
48183 (Sept. 15, 1997) (background information relating to detention 
under the Transition Period Custody Rules, citing to Report #I-96-03 
issued in March 1996 by the Department's Office of the Inspector 
General).
    This rule would provide that an alien not detained at the time an 
order of removal becomes final has an affirmative legal obligation to 
surrender thereafter for removal, and would provide an incentive for 
compliance by denying future discretionary relief for absconding aliens 
who fail to comply.

Who Will Be Affected by This Rule When It Is Finalized?

    This rule would apply to those aliens who receive notice at any 
point in immigration proceedings of their duty to surrender following 
any final order of exclusion, deportation, or removal, and of the 
consequences of failing to surrender. Aliens placed in removal 
proceedings after the effective date of any final rule based on this 
regulation will be served written notice of the duty to surrender in 
the Notice to Appear. Aliens who are already in proceedings on the 
effective date of this rule when it is published as a final rule will 
receive notice of the duty to surrender, and the consequences of 
failure to surrender, by one of several methods, such as (1) from the 
immigration judge, (2) from the Board of Immigration Appeals at the 
time the Board issues a written order of removal, (3) from the district 
director prior to any release from custody, or (4) in any other manner 
whereby such written notice may be effectuated. In order to ensure that 
aliens receive proper notice, this rule provides that such notice will 
be provided at several points in the immigration enforcement process. 
However, once notice is provided by any means, no other notice shall be 
legally required.

How Would This Rule Affect Aliens With Final Removal Orders?

    This supplementary proposed rule would apply to all aliens who 
received the requisite notice under this rule, at any stage of the 
immigration enforcement process, regarding the obligation to surrender 
to the Service, and the consequences of failing to surrender when 
required. Such aliens, if they are not within the custody of the 
Service at the time, must surrender to the Service within 30 days of 
the issuance of an administratively final order of removal by either an 
immigration judge or the Board of Immigration Appeals. An alien who has 
been granted voluntary departure is given an order of removal that 
automatically becomes administratively final if the alien does not 
depart under the grant of voluntary departure. If an alien does not 
voluntarily depart he or she is also required to surrender to the 
Service. Aliens granted voluntary departure must surrender for removal 
on the first business day following the date the alternate order of 
removal becomes effective. It is important to note that nothing in this 
rule restricts the Service's authority to arrest and remove an alien 
with a final order of removal at any time, unless a federal court has 
stayed that final order.
    The Service also notes that aliens subject to a final order of 
removal are already obligated under section 241(a)(1)(C) of the Act and 
8 CFR 241.4(g) to make application in good faith for travel documents, 
and that any failure to undertake this and other affirmative 
obligations tolls the removal period during which detention is 
mandated. See 66 FR 56967 (Nov. 14, 2001).

Where Must the Alien Go To Surrender?

    This supplementary proposed rule would require the alien to 
surrender to the Detention and Removal Program of the Service district 
office with jurisdiction over the place where the immigration judge 
completed the removal proceeding. The Service may designate an 
alternate location for surrender upon providing notice to the alien.

What Are the Consequences for an Alien Who Fails To Surrender as 
Required?

    This supplementary proposed rule provides that an alien who fails 
to surrender, as required, will be denied discretionary relief from 
removal by the Attorney General under sections 208(b) (asylum), 212(h) 
(waiver of inadmissibility for criminal convictions), 212(i) (waiver of 
inadmissibility for fraud), 240A (cancellation of removal), 240B 
(voluntary departure), 245 (adjustment to status of a lawful permanent 
resident), 248 (change of nonimmigrant status) and 249 (registry) of 
the Act at any time while he or she remains in the United States, and 
for a period of ten years after the alien's departure from the United 
States. These consequences will apply to all aliens who fail to 
surrender, when required, after having received the requisite notice 
under this rule at any stage of the immigration enforcement process.
    Entirely apart from the provisions of this rule, the Service notes 
that any alien who fails to surrender when required may also be subject 
to other sanctions under the existing laws, including criminal 
prosecution under section 243 of the Act or civil penalties under 
section 274D of the Act.

Can the Denial of Discretionary Relief Be Waived?

    This supplementary proposed rule would provide the district 
director with discretion to waive the denial of discretionary relief, 
as provided under Sec. 241.17(c), if the alien demonstrates that the 
failure to surrender was due to exceptional circumstances and that he 
or she appeared as soon as possible thereafter as circumstances 
allowed. This rule incorporates the statutory definition of exceptional 
circumstances at section 240(e)(1) of the Act, which is narrow and does 
not include ignorance of the law or reliance on advice of counsel or of 
any other individual.

What Effect Would an Alien's Failure To Surrender Have on Motions To 
Reopen or Reconsider Removal Proceedings?

    Pursuant to the changes proposed by the Department, removal 
proceedings would not be reopened in the case of an alien who failed to 
surrender for removal unless the alien can demonstrate by clear and 
convincing evidence both that the failure to surrender was due to 
exceptional circumstances as defined in section 240(e)(1) of the Act, 
and that he or she actually surrendered for removal as soon as possible 
after the circumstances that prevented timely surrender had passed. Any 
alien seeking to file a motion to reopen or reconsider must also 
satisfy the legal and time requirements of Sec. 3.2, for cases before 
the Board of Immigration Appeals, or Sec. 3.23, for cases before the 
Immigration Court, as applicable.

[[Page 31159]]

Are There Any Other Requirements Under This Rule?

    The amendments contained in this supplementary proposed rule would 
prohibit an alien's release from Service custody unless the alien 
agrees in writing or otherwise on the record to surrender for removal 
in accordance with the rule. All aliens seeking voluntary departure are 
also required to agree to surrender for removal as a condition to being 
granted that form of relief if they fail to voluntarily depart.

Did the Department Receive Comments on the Proposed Rule?

    The Department set a 60-day public comment period that ended on 
November 3, 1998. The Department received four public comments on the 
proposed rule. The following is a discussion of those comments and the 
Department's response.

Discussion of Comments and Changes From the Proposed Rule

Length of Surrender Period

    Two commenters raised concerns with the length of the proposed 10-
day surrender period. One commenter suggested that 10 days is an 
insufficient period of time for an alien who has moved away to report 
to the Service district office with jurisdiction over the location 
where the removal proceedings were completed. The other commenter 
pointed out that decisions from the Board of Immigration Appeals do not 
always arrive within 10 days of the date of the order, thus making it 
impossible for an alien to report within the proposed 10-day surrender 
period as required by the regulation. The commenter suggested that a 
30-day period to ensure sufficient mailing time would be more 
appropriate.
    The Department has carefully considered these concerns, and has 
amended this supplementary proposed rule to provide for a 30-day 
surrender period.

Location for Surrender

    One commenter indicated a concern with the requirement under 
Sec. 241.13 of the proposed rule (now renumbered as Sec. 241.16) that 
the alien must surrender to the Service district office with 
jurisdiction over the location where removal proceedings were 
completed. The commenter proposed that aliens be allowed to surrender 
to any Service district office. In contrast, another comment, signed by 
seven surety companies, objected to the suggestion that the Service 
could change the location for surrender, as this could impose 
additional compliance costs on the surety provider.
    The recommendation to allow aliens to surrender to any Service 
district office has some merit, but is not easily reconciled with 
logistical considerations, the obligation to make most efficient use of 
Service resources, and the expectations of surety providers. The 
designated district office will have the alien's file and the necessary 
documentation for his or her removal. The designated office will also 
be prepared to house the alien pending removal, or make arrangements as 
needed. For these reasons, the Department has retained in these rules 
the requirement to surrender at the designated district office, but has 
made allowance in the rule under appropriate circumstances for the 
district director, in his or her discretion, to agree to an alternate 
site.

Tolling of the Surrender Period for Federal Court Review

    One commenter questioned why the surrender period is tolled pending 
an appeal to the Board of Immigration Appeals, but not pending a 
petition for review in federal court. The answer has to do with the 
administrative finality of the order. An order of removal on appeal to 
the Board of Immigration Appeals is not a final administrative order. 
Execution of the order is automatically stayed pending disposition of 
the appeal.
    The filing of a petition for review in federal court, on the other 
hand, does not result in an automatic stay of the removal order. The 
alien must specifically request a stay of removal. See Fed. R. App. P. 
18. The alien must also notify the Service that such a stay is being 
sought. Should a stay be granted, the order cannot be executed and the 
duty to surrender is suspended. Likewise, if a stay is ordered pending 
a motion to reopen, the order cannot be executed and the duty to 
surrender is suspended. The alien's duty to surrender to the Service 
within 30 days begins anew on the day the stay is lifted.

Denial of Discretionary Relief

    One commenter opposed the inclusion of sections 208, 212(h), and 
212(i) of the Act as forms of relief from removal that the Attorney 
General will deny, as a matter of discretion, to aliens who fail to 
surrender as required. Sections 240(b)(7) and 240B(d) of the Act bar an 
alien who fails to appear for proceedings or who fails to depart 
pursuant to a voluntary departure order from any further relief under 
sections 240A, 240B, 245, 248, and 249 of the Act for a period of 10 
years. The commenter argues that including discretionary denials of 
relief under the three additional provisions is not permitted by the 
statute, nor is the discretionary denial of asylum consistent with 
treaty obligations and Congressional intent.
    The Department reiterates its position that denying discretionary 
forms of relief to those aliens who disobey the law by failing to 
surrender is a rational exercise of the Attorney General's discretion, 
and a regulatory provision reflecting that result is a proper means for 
the Attorney General to exercise that discretion. The Supreme Court has 
recognized that an agency head ``has the authority to rely on 
rulemaking to resolve certain issues of general applicability unless 
Congress clearly expresses an intent to withhold that authority.'' 
Lopez v. Davis, 531 U.S. 230, 244 (2001), quoting American Hospital 
Assn. v. NLRB, 499 U.S. 606, 612 (1991); see also, Yang v. INS, 79 F.3d 
932, 936 (9th Cir. 1996). Moreover, sections 212(h) and 212(i) of the 
Act are waiver provisions, not independent forms of relief, and as such 
would be unavailable to any alien who was denied the other forms of 
relief.
    Even prior to this supplementary proposed rule, case law has 
established that an alien who fails to report to the Service following 
notification that his or her deportation has been scheduled does not 
merit the favorable exercise of discretion required for reopening 
deportation proceedings. See, e.g., Matter of Barocio, 19 I.&N. Dec. 
255, 258 (BIA 1985); see also Sequeira-Solano v. INS, 104 F.3d 278, 279 
(9th Cir. 1997) (``The BIA correctly found that Sequeira-Solano [by 
failing to surrender] had put himself in defiance of our immigration 
laws and therefore concluded that his [motion] for reopening [to apply 
for suspension of deportation] did not merit favorable 
consideration.''); Zapon v. Dep't of Justice, 53 F.3d 283, 285 (9th 
Cir. 1995) (United States was ``substantially justified'' in opposing 
fugitives' efforts to obtain a stay of deportation, supporting the 
denial of their application for award of attorneys fees under Equal 
Access to Justice Act); Bar-Levy v. Dep't of Justice, 990 F.2d 33, 35 
(2d Cir. 1993) (``An alien who is a fugitive from a deportation order 
should thus not be permitted to pursue an appeal of the deportation 
order or a denial of his application for a waiver of deportation.''), 
following Arana v. INS, 673 F.2d 75, 77 (3d Cir. 1982) (per curiam).
    The obligation to surrender for removal is not a new one, and 
failure to comply with this obligation is a

[[Page 31160]]

significant flaunting of U.S. law for which the denial of all 
discretionary relief--including asylum--is an appropriate response. 
Nothing in this rule affects an alien's eligibility for withholding of 
deportation, when required by law.

District Director's Discretion

    Two commenters raised questions regarding Sec. 241.15(c) (now 
renumbered as Sec. 241.18(c)) of the proposed rule. One commenter 
suggested that it was unclear exactly as to the scope of the 
consequences of failing to surrender in this section. The section has 
been amended to clarify that the consequences of failing to surrender, 
after having received notice of the duty to surrender, can be found in 
Sec. 241.18(c). The other commenter appeared to be concerned with the 
fact that this section provides that the decision to waive the denial 
of relief is left to the sole discretion of the district director. The 
commenter argued that ``a regulation cannot dictate what is the 
adjudicator's 'sole and unreviewable discretion.'''
    The Supreme Court has upheld an agency's ability to utilize 
regulations as an exercise of discretionary authority. See, e.g., Lopez 
v. Davis, 531 U.S. 230, 244 (2001). In this case, however, proposed 
Sec. 241.18(c) does not dictate precisely how the district director 
must exercise his or her discretion. It simply provides that the 
discretionary decision to waive the consequences under Sec. 241.18(c) 
of the alien's failure to surrender is to be made by the district 
director, if the alien demonstrates that his or her failure to 
surrender was a result of exceptional circumstances as defined in 
section 240(e)(1) of the Act and that the alien surrendered himself or 
herself to the Service as soon as those exceptional circumstances 
ceased to exist.

Retroactive Effect

    One commenter remarked that the prospective nature of the rule was 
not stated in the proposed rule. Rulemaking is presumed to be 
prospective in nature, and a clear statement is required only if the 
rule is intended to have retroactive application. Nonetheless, in the 
interest of clarity, the notice provisions of Sec. 241.17 specify that 
the denial of discretionary relief for failure to surrender, as 
provided in Sec. 241.18(c), will be invoked only where the alien had 
received written notice of the surrender obligation and the 
consequences under Sec. 241.18(c) of failure to surrender.

Bonds

    Three of the four comments were submitted by surety companies who 
post immigration bonds, or their representatives. These commenters 
strongly criticized the proposed rule, contending that the proposals 
violate the spirit, intent, and express wording of the June 22, 1995 
settlement agreement in the case of Amwest Surety Insurance Co. v. 
Reno, Civil No. 93-2356 JSL (Shx) (C.D. Cal.). In that agreement, the 
Service agreed to send notice of the date and time to report for 
deportation to the bond obligor at least 3 days prior to sending such 
notice to the alien. While the settlement agreement applied only to 
bonds underwritten by the plaintiffs, the Service as a matter of policy 
decided to apply the terms of the settlement agreement to all other 
companies underwriting immigration bonds.
    The Department has carefully considered the effects of that policy 
and has determined that the policy should be modified for all bonds 
posted after the effective date of this rule.
    The commenters assert that, by equating the final order of removal 
to the notice to surrender and mailing it directly to the alien, the 
proposed rule would deprive the obligor of its contractual right to 
advance notice. The commenters further argue that the proposed rule 
would deprive the obligor of its ability to surrender the alien for 
removal as the obligor would only be notified to surrender the alien 
for removal only after he or she has failed to surrender as required. 
By that time, the administrative penalties, civil fines, and criminal 
consequences have all attached. No alien, according to the commenters, 
will be willing to surrender at that point.
    The commenters assert that the proposed rule is an improper attempt 
by the Department to extend the 90-day removal period by labeling an 
alien who fails to surrender as a ``fugitive from justice,'' thus 
subject to continued detention. The commenters also argue that 
Sec. 241.13(h) of the proposed rule (now renumbered as Sec. 241.16(j)), 
which allows the Service to unilaterally alter the surrender terms, 
e.g., designate an alternate surrender location, could unlawfully 
increase the risks or duties of the obligor under the contract it 
executes with the alien.
    The Department is cognizant of its contractual duties and has 
carefully considered the points raised in these comments. The 
Department will abide by the settlement agreement with regard to all 
bond contracts entered into prior to the effective date of the final 
rule. The Service will continue to send form I-340, Notice to Obligor 
to Produce Alien, as agreed in the settlement agreement, to sureties of 
any bond posted prior to the effective date of this rule when it is 
published as a final rule.
    However, the settlement agreement was based upon the Act as it 
existed prior to the passage of the IIRIRA, which mandated detention of 
certain aliens during the post-order removal period. The settlement 
agreement has been affected by IIRIRA, and more recently by judicial 
decisions such as Zadvydas v. Davis, 533 U.S. 678 (2001), and the 
resulting changes in regulations published at 66 FR 56967 (Nov. 14, 
2001) (codified at Secs. 241.4, 241.13 and 241.14). These changes in 
the legal landscape necessitate revision to the way the Service handles 
bonds.
    Revisiting the bond contract and procedures is also necessary to 
ensure the efficient use of Service resources, particularly with the 
growing removal caseload and competing government priorities after the 
events of September 11, 2001. Moreover, technological advances, such as 
the availability of information on the status of cases from EOIR's 
automated information line, 1-800-898-7180, make it reasonable to 
expect that surety companies monitor the surrender obligations of their 
clients in new cases.
    In response to the concerns of the surety companies, this 
supplementary proposed rule would extend the surrender period to 30 
days. The Department is in the process of revising form I-352, 
Immigration Bond, to more accurately reflect the current legal and 
procedural requirements and this supplementary proposed rule.

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 the 
legal obligations of individual aliens ordered removed from the United 
States, not small entities. Although this rule will have an impact on 
surety companies by altering the terms of future bond contracts, the 
impact and number of surety companies affected will not be substantial.

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

[[Page 31161]]

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, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 13132

    This rule 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Paperwork Reduction Act

    This rule requires a revision to an existing information collection 
(Form I-352). This revision will be submitted to the Office of 
Management and Budget (OMB) for review and approval in accordance with 
the Paperwork Reduction Act.

List of Subjects

8 CFR Part 3

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

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

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 is revised to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1231, 1252 
note, 1252b, 1253, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, 
Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 
203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 
of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. 
L. 106-554, 114 Stat. 2763A-326 to -328.

    2. Section 3.1 is amended by adding one sentence at the end of 
paragraph (f) to read as follows:


Sec. 3.1  General authorities.

* * * * *
    (f) * * * The decision shall include notice of the duty to 
surrender and the consequences of failure to surrender when required, 
in accordance with Secs. 241.16 through 241.19 of this chapter.
* * * * *
    3. Section 3.2 is amended by adding paragraph (c)(5) to read as 
follows:


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

* * * * *
    (c) * * *
    (5) (i) Notwithstanding the limitations of paragraph (c)(1) of this 
section, 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. 241.16 of this chapter, unless:
    (A) The district director waived the consequences under 
Sec. 241.18(c) for failing to surrender for removal in accordance with 
Sec. 241.18(c)(2) of this chapter; or
    (B) The alien presents documentary evidence that demonstrates, by 
clear and convincing evidence, that:
    (1) The failure to surrender for removal was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act; and
    (2) The alien surrendered for removal as soon as possible after the 
circumstances that prevented a timely surrender had passed.
    (ii) Nothing in paragraph (c)(5)(i)(B) 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.
* * * * *
    4. Section 3.23 is amended by adding paragraph (b)(5) to read as 
follows:


Sec. 3.23  Reopening or reconsideration before the Immigration Court.

* * * * *
    (b) * * *
    (5) Failure to surrender for removal. (i) Notwithstanding the 
requirements of paragraph (b)(1) of this section, a motion to reopen or 
reconsider will not be granted in the case of an alien who failed to 
surrender for removal in accordance with Sec. 241.16 of this chapter, 
unless:
    (A) The district director waived the consequences under 
Sec. 241.18(c) for failing to surrender for removal, in accordance with 
Sec. 241.18(c)(2) of this chapter; or
    (B) The alien presents documentary evidence that demonstrates, by 
clear and convincing evidence, that:
    (1) The failure to surrender for removal was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act; and
    (2) The alien surrendered for removal as soon as possible after the 
circumstances that prevented a timely surrender had passed.
    (ii) Nothing in paragraph (b)(5)(i)(B) 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.
    5. Section 3.37 is amended by adding a new paragraph (c) to read as 
follows:


Sec. 3.37  Decisions.

* * * * *
    (c) All oral and written decisions of the Immigration Judge will 
include notice of the duty to surrender and the consequences of failure 
to surrender, when required, in accordance with Secs. 241.16 through 
241.19 of this chapter.

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

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


[[Page 31162]]


    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 
2.

    7. Section 236.1 is amended by adding one sentence at the end of 
paragraph (c)(1)(i) to read as follows:


Sec. 236.1  Apprehension, custody, and detention.

* * * * *
    (c) * * *
    (1) * * *
    (i) * * * No alien may be released from custody unless the alien 
agrees in writing or otherwise on the record to surrender for removal 
in accordance with Sec. 241.16 of this chapter should the alien become 
subject to a final order of removal, and the alien has been advised of 
the consequences under Sec. 241.18(c) of failure to surrender when 
required, in accordance with Secs. 241.16 through 241.19 of this 
chapter.
* * * * *

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

    8. The authority citation for part 240 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1231, 1251, 1252 note, 1252a, 1252b, 1253, 1362; secs. 202 and 203, 
Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 
(112 Stat. 2681); 8 CFR part 2.

    9. Section 240.26 is amended by adding one 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 in writing or otherwise on the record to 
surrender for removal in accordance with Sec. 241.16 of this chapter if 
the alien fails to depart voluntarily within the time allowed, and the 
alien has been advised of the consequences under Sec. 241.18(c) of 
failure to surrender when required, in accordance with Secs. 241.16 
through 241.19 of this chapter.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    10. The authority citation for part 241 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103. 1182, 1223, 
1224, 1225, 1226, 1227, 1231, 1253, 1255, 1330, 1362; 18 U.S.C. 
4002, 4013(c)(4); sec. 303(b) of Div. C of Pub. L. 102-208; 8 CFR 
part 2.
    11. In part 241, subpart A, add Sec. 241.16 to read as follows:


Sec. 241.16  Duty to surrender.

    (a) In general. An alien 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, an alien subject to a final order of removal 
issued in proceedings and who has received notice of the duty to 
surrender as set forth in Sec. 241.17 must surrender for removal as 
provided in this section. Such surrender must be made during regular 
business hours to the Detention and Removal Program of 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.
    (b) Final order by an immigration judge--(1) Aliens waiving appeal 
and aliens ordered removed in absentia. Any alien who, upon issuance of 
the order of removal by an immigration judge, waives appeal of the 
order, and any alien who is ordered removed in absentia, must surrender 
for removal within 30 calendar days of the date of the order.
    (2) Aliens reserving appeal. Any alien who, upon issuance of the 
order of removal by an immigration judge, reserves appeal, must 
surrender for removal within 30 calendar days of the date when the 
appeal period expires, unless he or she files a timely appeal, or 
within 30 calendar days of the date of any subsequent waiver or 
withdrawal of the appeal.
    (c) Final order by the Board of Immigration Appeals. Any alien who 
becomes subject to 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 30 calendar days of the date 
of the Board's order.
    (d) Voluntary departure. Notwithstanding paragraphs (b) and (c) of 
this section, any alien granted voluntary departure who 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 following such a failure.
    (e) Aliens in custody. (1) Any 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) Any alien who becomes subject to a final order of removal while 
incarcerated in a local, State, or Federal facility must surrender for 
removal within 30 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 Service detains the alien 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 this section.
    (f) Other orders of removal. Any alien who is 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 
30 calendar days of the date that the order becomes final.
    (g) Requests for relief subsequent to final order of removal. An 
application for discretionary or other relief, including a motion to 
reopen, submitted to the Service, an immigration judge, or the Board of 
Immigration Appeals, by an alien who is the subject of a final order of 
removal, will have no effect on an alien's duty to surrender, unless 
the alien presents, prior to the expiration of the period to surrender, 
a written decision 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 presents, prior to the expiration of the period to surrender, a 
written response granting the requested relief.
    (h) Stay pending federal court review. Filing of a petition for 
federal court review or a writ of habeas corpus with respect to an 
administratively final removal order will have no effect on an alien's 
duty to surrender for removal. If the federal court issues a stay of 
the removal order pending review, the alien's duty to surrender will 
also be suspended for the duration of the stay. The 30-day period for 
surrender will begin again on the day that the federal court stay is 
lifted.
    (i) 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.

[[Page 31163]]

    (j) 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 Act at any time.
    12. In part 241, subpart A, add Sec. 241.17 to read as follows:


Sec. 241.17  Notice of duty to surrender.

    (a) Notice to Appear. As of the effective date when this rule is 
published as a final rule, the Notice to Appear, Form I-862, will 
contain written notice of the duty to surrender after the issuance of a 
final order of removal and the consequences of failure to surrender 
when required.
    (a) Immigration judge. (1) The immigration judge will inform the 
alien orally or 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 and the consequences of 
failure to surrender when required.
    (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 or 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, and the consequences 
of failure to surrender when required.
    (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 be accompanied by written notice of the duty 
to surrender for removal, and the consequences of failure to surrender 
when required.
    (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 in writing or otherwise on the 
record 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 in writing or otherwise on 
the record to surrender for removal as provided under Sec. 241.16(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) Effectuating notice of duty to surrender. An alien will be on 
notice of the provisions of this section, including penalties for 
failure to surrender, upon service of any written notice that the alien 
has a duty to surrender. Aliens placed in proceedings after the 
effective date when this rule is published as a final rule will be 
served written notice of the duty to surrender in the Notice to Appear 
pursuant to section 239(a)(1) of the Act. Aliens who have been served 
with a Notice to Appear prior to the effective date when this rule is 
published as a final rule will be served with written notice in one of 
the ways described in paragraphs (b) through (e) of this section or in 
any other manner whereby such written notice may be effectuated. 
Service of the written notice will be accomplished either by hand-
delivery or by mailing to the alien's last-known address as reported by 
the alien to the Service or EOIR. Once notice is served as described in 
this section, no other notice is required, even though the alien may 
receive more than one notice from the Service and EOIR. If the address 
of the Service district office to which the alien is required to 
surrender changes subsequent to issuance of notice under this section, 
it is the alien's duty to determine the new address and surrender to 
that location.
    13. In part 241, subpart A, add Sec. 241.18 to read as follows:


Sec. 241.18  Consequences of failure to surrender for removal; 
exception; waiver.

    (a) Liability. An alien who fails to surrender for removal as 
required by this part, and remains in the United States in violation of 
law:
    (1) Is subject to criminal prosecution under section 243 of the 
Act; and
    (2) Is subject to civil penalties under section 274D of the Act.
    (b) Consent to reapply. The fact that the alien failed to surrender 
for removal as required by this part shall be a serious adverse factor 
when considering a subsequent application for consent to reapply for 
admission to the United States.
    (c) Denial of discretionary relief. An alien who fails to surrender 
for removal as required by this part, and remains in the United States 
in violation of law, after having received notice of the duty to 
surrender as provided in Sec. 241.17, will be denied discretionary 
relief under sections 208(b), 212(h), 212(i), 240A, 240B, 245, 248, and 
249 of the Act while the alien remains in the United States, and for a 
period of 10 years after the alien's departure or removal.
    (1) Exception. An alien who fails to surrender for removal as 
required by this part may be granted the relief specified in this 
paragraph (c) for which the alien is otherwise eligible, 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.
    (2) Waiver. The consequences of failing to surrender specified in 
this paragraph (c) may be waived in the sole and unreviewable 
discretion of the district director, if the alien surrenders for 
removal as soon as possible thereafter, and at that time presents 
documentary evidence that demonstrates, by clear and convincing 
evidence, that the failure to surrender was due to exceptional 
circumstances as defined in section 240(e)(1) of the Act. Exceptional 
circumstances do not include reliance on advice of counsel or any other 
individual, and no waiver is available based on such reliance.
    14. In part 241, subpart A, add Sec. 241.19 to read as follows:


Sec. 241.19  Construction.

    (a) Order of removal. For purposes of Sec. 241.16, Sec. 241.17, and 
Sec. 241.18, 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, including, 
but not limited to, section 309 therein.
    (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. 241.16, Sec. 241.17, and 
Sec. 241.18, in the case of an alien who is not personally served with 
an order of removal, service by first class mail to the last address 
provided by the alien in accordance with section

[[Page 31164]]

239(a)(1)(F) of the Act, or part 3 or part 265 of this chapter shall be 
sufficient.
    (d) Effect on existing bonds. For all immigration bonds posted 
prior to the effective date of this rule when it is published as a 
final rule, the Service will make demand on the obligor on Form I-340 
by mail to the address furnished on Form I-352 (unless the obligor is 
present and the demand can be served on the obligor in person), 
requiring the obligor to produce the alien at a time, date and place 
certain not later than the final date of the surrender period. The I-
340 shall be mailed (or delivered in person) as soon as practicable 
after receipt of the final order from the immigration judge or the 
Board of Immigration Appeals.
    (e) Change in handling of new bonds. For all immigration bonds 
posted after the effective date of this rule when it is published as a 
final rule, the bond will be deemed to have been breached when the 
alien fails to surrender within the 30-day surrender period. It is the 
duty of the obligor(s) to monitor the status of proceedings against the 
alien and ensure that the alien surrenders within the 30-day surrender 
period.
    (f) Construction in relation to post-order custody rules. An 
alien's duty to surrender, as set forth in Sec. 241.16, Sec. 241.17, 
and Sec. 241.18, is an affirmative obligation. The failure to comply 
with this obligation shall be considered a failure to comply for 
purposes of custody determinations pursuant to Sec. 241.4.

    Dated: April 30, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-11141 Filed 5-8-02; 8:45 am]
BILLING CODE 4410-10-P