[Federal Register Volume 69, Number 144 (Wednesday, July 28, 2004)]
[Rules and Regulations]
[Pages 44903-44908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17118]


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DEPARTMENT OF JUSTICE

8 CFR Parts 1001, 1003, 1103, 1239 and 1287

[EOIR No. 139I; AG Order No. 2728-2004]
RIN 1125-AA43


Executive Office for Immigration Review; Definitions; Fees; 
Powers and Authority of DHS Officers and Employees in Removal 
Proceedings

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends regulations relating to the Executive Office 
for Immigration Review to conform with certain regulatory changes made 
by the Department of Homeland Security (DHS) for consistency and 
clarity. This rule makes no substantive changes in the Department of 
Justice regulations, but makes appropriate revisions to the definitions 
and fee provisions and the regulations relating to issuance of notices 
to appear and subpoenas in the EOIR regulations, in order to avoid 
confusing and unnecessary duplication of provisions already set forth 
in the DHS regulations. Finally, this rule makes a necessary technical 
change to an existing regulation.

DATES: Effective date: This interim rule is effective on July 28, 2004.
    Comment date: Written comments must be submitted on or before 
August 27, 2004.

ADDRESSES: Please submit written comments to Kevin Chapman, Acting 
General Counsel, Executive Office for Immigration Review, Office of the 
General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 
22041. To ensure proper handling, please reference RIN No. 1125-AA43 on 
your correspondence. You may view an electronic version of this interim 
rule at www.regulations.gov. You may also comment via the Internet to 
EOIR at [email protected] or by using the www.regulations.gov comment 
form for this regulation. When submitting comments electronically, you 
must include RIN No. 1125-AA43 in the subject box.

FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel, 
Executive Office for Immigration Review, Office of the General Counsel, 
5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone 
(703) 305-0470.

SUPPLEMENTARY INFORMATION:

Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002 (HSA) creating the new Department of Homeland 
Security (DHS) and transferring the functions of the former Immigration 
and Naturalization Service (INS) to the Department of Homeland 
Security. Public Law 107-296, tit. IV, subtits. D, E, F, 116 Stat. 
2135, 2192 (Nov. 25, 2002). The Attorney General retained the functions 
of the Executive Office for Immigration Review (EOIR) in the Department 
of Justice. HSA section 1101, 116 Stat. at 2273.
    In order to implement the transfer of functions under the HSA, the 
Attorney General reorganized title 8 of the Code of Federal Regulations 
and divided the regulations into chapters relating to the functions of 
the then-INS (chapter I) and the functions of EOIR (chapter V). 68 FR 
9824 (Feb. 28, 2003); see also 68 FR 10349 (March 5, 2003). The 
Attorney General transferred appropriate parts, subparts and sections 
of the regulations, and duplicated other parts, subparts and sections, 
to ensure continuity in the regulations pertaining to EOIR, while 
making the appropriate division of authority under the HSA. The 
Secretary of Homeland Security has since issued two regulations 
amending 8 CFR

[[Page 44904]]

chapter I. In light of those changes, the Attorney General is making 
conforming amendments to ensure continuity and to clarify the 
regulations in 8 CFR chapter V.

Definitions; Powers and Authority of DHS Officers in Removal 
Proceedings

    On June 13, 2003, the Secretary of Homeland Security issued a final 
regulation conforming portions of the regulations in 8 CFR chapter I 
regarding legacy INS functions transferred into the structures 
established in the HSA in accordance with DHS' reorganization plan. 68 
FR 35273 (June 13, 2003). Relevant changes made by DHS included revised 
definitions in 8 CFR part 1, and revisions to provisions in part 239 
and part 287 designating DHS officers who are authorized to issue 
Notices to Appear in connection with proceedings before immigration 
judges and the Board of Immigration Appeals, and who are authorized to 
issue and serve administrative subpoenas. The Attorney General has 
determined that it is appropriate to adjust the regulations in 8 CFR 
parts 1001, 1239, and 1287 relating to EOIR in order to reflect these 
changes, eliminate unnecessary duplication, and ensure greater clarity.
    Specifically, in 8 CFR 1.1, DHS has changed the definitions of the 
terms ``Service'' and ``Commissioner,'' and added the terms 
``Secretary,'' ``Bureau,'' ``BCIS,'' ``CBP,'' and ``ICE.'' These 
definitions refer directly to DHS or legacy components of the INS, and 
this rule revises the definitions in 8 CFR 1001.1 to cross-reference 
relevant terms rather than attempting to duplicate the specific DHS 
definitions, which DHS may change over time.
    This rule makes two exceptions to the definitions promulgated by 
DHS. Unless otherwise specifically noted, the term ``Department'' in 8 
CFR chapter V refers to the Department of Justice, while the DHS 
regulations in 8 CFR chapter I use the term to refer to the Department 
of Homeland Security. Moreover, this rule revises the definition of the 
term ``Director'' in 8 CFR chapter V to refer to the Director of EOIR, 
unless otherwise specified. The definition in 8 CFR 1001.1(o) now 
cross-references the term ``director,'' when used in the context of a 
DHS official, to the definitions in the DHS regulations in 8 CFR 
1.1(o).
    The rule also revises 8 CFR 1239.1 to cross-reference rather than 
duplicate the list of officers authorized to issue a notice to appear 
in 8 CFR 239.1 and to make conforming changes to regulatory references 
reflecting the transfer of functions to DHS from the former INS. Cross-
referencing the list of officers authorized to issue a notice to 
appear, a rule within DHS' authority, will simplify the regulations. 
Additionally, 8 CFR 1239.2 has been amended to remove unnecessary 
provisions, and cross-reference the provisions of 8 CFR 239.2 regarding 
motions to dismiss a notice to appear.
    The rule also amends 8 CFR 1287.4 to focus solely on the issuance 
of subpoenas by immigration judges during the course of immigration 
proceedings. As revised, the rule eliminates duplicative provisions 
relating to DHS's authority by simply cross-referencing the provisions 
of the DHS regulations relating to the issuance and service of 
subpoenas by DHS officers and employees. The authority of DHS officers 
to issue and serve subpoenas prior to commencement of proceedings is 
within the jurisdiction of DHS. Additionally, a reference to 
naturalization proceedings under 8 CFR part 335 has been removed from 8 
CFR 1287.4(a)(2)(ii) as unnecessary.

Changes to the Fees Provisions

    The Secretary of Homeland Security published a final rule in the 
Federal Register on April 15, 2004 altering the schedule of fees 
collected from persons filing immigration benefit applications, and 
making other changes in 8 CFR 103.7. 69 FR 20528. In this interim rule, 
the Department removes provisions from 8 CFR 1103.7 that relate solely 
to DHS in order to eliminate the duplicative schedule of DHS fees 
contained in 8 CFR 1103.7(b) as well as in 8 CFR 103.7(b). This rule 
also makes revisions in 8 CFR 1103.7 to clarify the requirements and 
processes for filing fees charged in proceedings before immigration 
judges.
    In addition, this rule refines the provisions regarding filing fees 
before the immigration judges and the Board of Immigration Appeals in 8 
CFR 1003.24 and 1003.8, respectively. The Department is not changing 
the amount of the fee required for filing appeals, motions, or fees 
related solely to EOIR Forms. Fees for applications for relief based on 
DHS Forms that are filed with the immigration court or the Board 
continue to depend on the DHS fee schedule. Nor is the Department 
changing the existing process for how fees are paid for such filings.
    Instead, this rule changes the structure of the fees regulations at 
8 CFR 1003.8, 1003.24, and 1103.7 to make it easier for the public to 
understand when and how to pay a filing fee in matters relating to 
proceedings before the immigration judges and the Board. The Department 
is providing a clearer enumeration of when fees are and are not 
required, clearer direction on how fees are paid, and cross-references 
to the list of forms and fees published by the Department of Homeland 
Security that may be filed during the course of removal and related 
proceedings that require a fee, such as Form I-485 (Application to 
Register Permanent Residence or to Adjust Status), and Form I-881 
(NACARA, Application for Suspension of Deportation or Special Rule 
Cancellation of Removal). All forms published by the Department of 
Justice that require a fee are now listed separately from Department of 
Homeland Security forms. This rule also includes new language to allow 
for future electronic fee payment before the Board, a concept that is 
under consideration.
    The provisions in this interim rule with request for comments that 
have not previously appeared in the regulations of the Department are 
extracted from the Board of Immigration Appeals Practice Manual and 
explain with greater clarity when fees are not required, how fees may 
be waived, the amount required, payment of single fees in consolidated 
proceedings, forms of payment, and payment to DHS of application fees. 
These provisions reflect current practice and reduce that practice to 
regulatory form.

Technical Change

    A technical change removes 8 CFR 1003.1(a)(7) to eliminate 
potential confusion with the language of 8 CFR 1003.1(e)(4). On August 
26, 2002, the Department published a final rule improving the 
management of the Board of Immigration Appeals. 67 FR 54878. That rule 
included new provisions relating to the Board's case management 
process, and incorporated into that process the authority for the 
issuance of an affirmance without opinion. See 8 CFR 1003.1(e)(4). The 
final regulation inadvertently failed to remove the prior regulatory 
language addressing affirmance without opinion, contained in 8 CFR 
1003.1(a)(7), which serves no further purpose in view of the regulatory 
changes incorporating this subject into the broader case management 
provisions in Sec.  1003.1(e). Therefore, this rule removes 8 CFR 
1003.1(a)(7).

Administrative Procedure Act

    The Department of Justice is publishing this rule as an interim 
rule, with provisions for post-promulgation public comments, because 
the rule affects only the internal management of the Department of 
Justice and does not make any substantive changes to rules that affect 
the general public. 5 U.S.C.

[[Page 44905]]

552(d). The language of the regulations pertaining to payment of fees 
is intended to state more clearly the existing standards and procedures 
for payment of fees, and is drawn from previously published guidance 
from the Executive Office for Immigration Review. These changes do not 
alter the amount, standards, or procedures for payment of fees that are 
payable in connection with proceedings before the immigration judges 
and the Board of Immigration Appeals. Other changes in this rule merely 
make conforming changes in response to regulations promulgated by the 
Department of Homeland Security, and delete an outdated procedural 
provision that the Department inadvertently failed to remove when it 
published new procedural rules for the Board in 2002.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this rule 
under the Administrative Procedure Act (5 U.S.C. 553), the provisions 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this final rule because there are no new or 
revised recordkeeping or reporting requirements.

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 section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. 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 has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is not a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and 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, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant 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.

List of Subjects

8 CFR Part 1001

    Administrative practice and procedure and Immigration.

8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
Services, Organization and function (Government agencies).

8 CFR Part 1103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 1239

    Administrative practice and procedure, Aliens, and Immigration.

8 CFR Part 1287

    Immigration and Law enforcement officers.


0
Accordingly, chapter V of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 1001--DEFINITIONS

0
1. The authority citation for 8 CFR part 1001 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103.


0
2. Amend Sec.  1001.1 by revising paragraphs (c), (d), (o), (p), and 
(s), and adding paragraphs (u) through (w) to read as follows:


Sec.  1001.1  Definitions.

* * * * *
    (c) The term Service means the Immigration and Naturalization 
Service, as it existed prior to March 1, 2003. Unless otherwise 
specified, references to the Service on or after that date mean the 
offices of the Department of Homeland Security to which the functions 
of the former Service were transferred pursuant to the Homeland 
Security Act, Public Law 107-296 (Nov. 25, 2002), as provided in 8 CFR 
chapter I.
    (d) The term Commissioner means the Commissioner of the Immigration 
and Naturalization Service prior to March 1, 2003. Unless otherwise 
specified, references to the Commissioner on or after that date mean 
those officials of the Department of Homeland Security who have 
succeeded to the functions of the Commissioner of the former Service, 
as provided in 8 CFR chapter I.
* * * * *
    (o) The term Director, unless otherwise specified, means the 
Director of the Executive Office for Immigration Review. For a 
definition of the term Director when used in the context of an official 
with the Department of Homeland Security, see 8 CFR 1.1(o).
    (p) The term lawfully admitted for permanent residence means the 
status of having been lawfully accorded the privilege of residing 
permanently in the United States as an immigrant in accordance with the 
immigration laws, such status not having changed. Such status 
terminates upon entry of a final administrative order of exclusion, 
deportation, removal, or rescission.
* * * * *
    (s) The terms government counsel or Service counsel, in the context 
of proceedings in which the Department of Homeland Security has 
appeared, mean any officer assigned to represent the Department of 
Homeland Security in any proceeding before an immigration judge or the 
Board of Immigration Appeals.
* * * * *
    (u) The term Department, unless otherwise specified, means the 
Department of Justice.
    (v) The term Secretary, unless otherwise specified, means the 
Secretary of Homeland Security.
    (w) The term DHS means the Department of Homeland Security. These 
rules incorporate by reference the organizational definitions for 
components of DHS as provided in 8 CFR 1.1.

[[Page 44906]]

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
3. The authority citation for 8 CFR part 1003 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 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; 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.

Sec.  1003.1  [Amended]

0
4. Section 1003.1 is amended by removing and reserving paragraph 
(a)(7).
0
5. Section 1003.8 is revised to read as follows:


Sec.  1003.8  Fees before the Board.

    (a) Appeals and motions before the Board--(1) When a fee is 
required. Except as provided in paragraph (a)(2) of this section, a 
filing fee prescribed in 8 CFR 1103.7, or a fee waiver request pursuant 
to paragraph (a)(3) of this section, is required in connection with the 
filing of an appeal, a motion to reopen, or a motion to reconsider 
before the Board.
    (2) When a fee is not required. A filing fee is not required in the 
following instances:
    (i) A custody bond appeal filed pursuant to Sec.  1003.1(b)(7);
    (ii) A motion to reopen that is based exclusively on an application 
for relief that does not require a fee;
    (iii) A motion to reconsider that is based exclusively on a prior 
application for relief that did not require a fee;
    (iv) A motion filed while an appeal, a motion to reopen, or a 
motion to reconsider is already pending before the Board;
    (v) A motion requesting only a stay of removal, deportation, or 
exclusion;
    (vi) Any appeal or motion filed by the Department of Homeland 
Security;
    (vii) A motion that is agreed upon by all parties and is jointly 
filed; or
    (viii) An appeal or motion filed under a law, regulation, or 
directive that specifically does not require a filing fee.
    (3) When a fee may be waived. The Board has the discretion to waive 
a fee for an appeal, motion to reconsider, or motion to reopen upon a 
showing that the filing party is unable to pay the fee. Fee waivers 
shall be requested through the filing of a Fee Waiver Request (Form 
EOIR-26A), including the declaration to be signed under penalty of 
perjury substantiating the filing party's inability to pay the fee. The 
fee waiver request shall be filed along with the Notice of Appeal or 
the motion. If the fee waiver request does not establish the inability 
to pay the required fee, the appeal or motion will not be deemed 
properly filed.
    (4) Method of payment. When a fee is required for an appeal or 
motion, the fee shall accompany the appeal or motion.
    (i) In general. Except as provided in paragraph (a)(4)(ii) of this 
section, the fee for filing an appeal or motion with the Board shall be 
paid by check, money order, or electronic payment in a manner and form 
authorized by the Executive Office for Immigration Review. When paid by 
check or money order, the fee shall be payable to the ``United States 
Department of Justice,'' drawn on a bank or other institution that is 
located within the United States, and payable in United States 
currency. The check or money order shall bear the full name and alien 
registration number of the alien. A payment that is uncollectible does 
not satisfy a fee requirement.
    (ii) Appeals from Department of Homeland Security decisions. The 
fee for filing an appeal, within the jurisdiction of the Board, from 
the decision of a Department of Homeland Security officer shall be paid 
to the Department of Homeland Security in accordance with 8 CFR 
103.7(a).
    (b) Applications for relief. Fees for applications for relief are 
not collected by the Board, but instead are paid to the Department of 
Homeland Security in accordance with 8 CFR 103.7. When a motion before 
the Board is based upon an application for relief, only the fee for the 
motion to reopen shall be paid to the Board, and payment of the fee for 
the application for relief shall not accompany the motion. If the 
motion is granted and proceedings are remanded to the immigration 
judge, the application fee shall be paid in the manner specified in 8 
CFR 1003.24(c)(1).
0
6. Section 1003.24 is revised to read as follows:


Sec.  1003.24  Fees pertaining to matters within the jurisdiction of an 
immigration judge.

    (a) Generally. All fees for the filing of motions and applications 
in connection with proceedings before the immigration judges are paid 
to the Department of Homeland Security in accordance with 8 CFR 103.7, 
including fees for applications published by the Executive Office for 
Immigration Review. The immigration court does not collect fees.
    (b) Motions to reopen or reconsider--(1) When a fee is required. 
Except as provided in paragraph (b)(2) of this section, a filing fee 
prescribed in 8 CFR 1103.7, or a fee waiver request pursuant to 
paragraph (d) of this section, is required in connection with the 
filing of a motion to reopen or a motion to reconsider.
    (2) When a fee is not required. A filing fee is not required in the 
following instances:
    (i) A motion to reopen that is based exclusively on an application 
for relief that does not require a fee;
    (ii) A motion to reconsider that is based exclusively on a prior 
application for relief that did not require a fee;
    (iii) A motion filed while proceedings are already pending before 
the immigration court;
    (iv) A motion requesting only a stay of removal, deportation, or 
exclusion;
    (v) A motion to reopen a deportation or removal order entered in 
absentia if the motion is filed pursuant to section 242B(c)(3)(B) of 
the Act (8 U.S.C. 1252b(c)(3)(B)), as it existed prior to April 1, 
1997, or section 240(b)(5)(C)(ii) of the Act (8 U.S.C. 
1229a(b)(5)(C)(ii)), as amended;
    (vi) Any motion filed by the Department of Homeland Security;
    (vii) A motion that is agreed upon by all parties and is jointly 
filed; or
    (viii) A motion filed under a law, regulation, or directive that 
specifically does not require a filing fee.
    (c) Applications for relief--(1) When filed during proceedings. 
When an application for relief is filed during the course of 
proceedings, the fee for that application must be paid in advance to 
the Department of Homeland Security in accordance with 8 CFR 103.7. The 
fee receipt must accompany the application when it is filed with the 
immigration court.
    (2) When submitted with a motion to reopen. When a motion to reopen 
is based upon an application for relief, the fee for the motion to 
reopen shall be paid to the Department of Homeland Security and the fee 
receipt shall accompany the motion. Payment of the fee for the 
application for relief must be paid to the Department of Homeland 
Security within the time specified by the immigration judge.
    (d) Fee waivers. The immigration judge has the discretion to waive 
a fee for a motion or application for relief upon a showing that the 
filing party is unable to pay the fee. The request for a fee waiver 
must be accompanied by a properly executed affidavit or unsworn 
declaration made pursuant to 28 U.S.C. 1746 substantiating the filing 
party's inability to pay the fee. If the request for a fee waiver is 
denied, the application or motion will not be deemed properly filed.

[[Page 44907]]

PART 1103--APPEAL, RECORDS, AND FEES

0
7. The authority citation for 8 CFR part 1103 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 
U.S.C. 509, 510.


0
8. Section 1103.7 is revised to read as follows:


Sec.  1103.7  Fees.

    (a) Remittances--(1) In general. Fees shall be submitted in 
connection with any formal appeal, motion, or application prescribed in 
this chapter in the amount prescribed by law or regulation. Payment of 
any fee under this section does not constitute filing of the appeal, 
motion, or application with the Board of Immigration Appeals or with 
the immigration court.
    (2) Board of Immigration Appeals. The fee for filing an appeal or a 
motion with the Board of Immigration Appeals shall be paid pursuant to 
the provisions of 8 CFR 1003.8 when a fee is required.
    (3) All other fees payable in connection with immigration 
proceedings. Except as provided in 8 CFR 1003.8, the Executive Office 
for Immigration Review does not accept the payment of any fee relating 
to Executive Office for Immigration Review proceedings. Instead, such 
fees, when required, shall be paid to, and accepted by, an office of 
the Department of Homeland Security authorized to accept fees, as 
provided in 8 CFR 103.7(a)(1). The Department of Homeland Security 
shall return to the payer, at the time of payment, a receipt for any 
fee paid, and shall also return to the payer any documents, submitted 
with the fee, relating to any immigration proceeding. The fee receipt 
and the application or motion shall then be submitted to the Executive 
Office for Immigration Review. Remittances to the Department of 
Homeland Security for applications, motions, or forms filed in 
connection with immigration proceedings shall be payable subject to the 
provisions of 8 CFR 103.7(a)(2).
    (b) Amounts of fees--(1) Appeals. For filing an appeal to the Board 
of Immigration Appeals, when a fee is required pursuant to 8 CFR 
1003.8, as follows:

    Form EOIR-26. For filing an appeal from a decision of an 
immigration judge--$110.
    Form EOIR-29. For filing an appeal from a decision of an officer 
of the Department of Homeland Security--$110.
    Form EOIR-45. For filing an appeal from a decision of an 
adjudicating official in a practitioner disciplinary case--$110.

    (2) Motions. For filing a motion to reopen or a motion to 
reconsider, when a fee is required pursuant to 8 CFR 1003.8 or 
1003.24--$110.
    (3) Multiple parties. When an appeal or motion is filed on behalf 
of two or more aliens and the aliens are covered by one decision, only 
one fee is required.
    (4) Applications for Relief--(i) Forms published by the Executive 
Office for Immigration Review. Fees for applications for relief shall 
be paid in accordance with 8 CFR 1003.8(b) and 1003.24(c) as follows:

    Form EOIR-40. Application for Suspension of Deportation--$100.
    Form EOIR-42A. Application for Cancellation of Removal for 
Certain Permanent Residents--$100.
    Form EOIR-42B. Application for Cancellation of Removal and 
Adjustment of Status for Certain Nonpermanent Residents--$100.

    (ii) Forms published by the Department of Homeland Security. The 
fees for applications published by the Department of Homeland Security 
and used in immigration proceedings are governed by 8 CFR 103.7.
    (c) Fee waivers. For provisions relating to the authority of the 
Board or the immigration judges to waive any of the fees prescribed in 
paragraph (b) of this section, see 8 CFR 1003.8 and 1003.24. No waiver 
may be granted with respect to the fee prescribed for a Department of 
Homeland Security form or action that is identified as non-waivable in 
regulations of the Department of Homeland Security.
    (d) Requests for records under the Freedom of Information Act. Fees 
for production or disclosure of records under 5 U.S.C. 552 may be 
waived or reduced in accordance with 28 CFR 16.11.

PART 1239--INITIATION OF REMOVAL PROCEEDINGS

0
9. The authority citation for 8 CFR part 1239 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1221, 1229.


0
10. In Sec.  1239.1, paragraph (a) is revised to read as follows:


Sec.  1239.1  Notice to appear.

    (a) Commencement. Every removal proceeding conducted under section 
240 of the Act (8 U.S.C. 1229a) to determine the deportability or 
inadmissibility of an alien is commenced by the filing of a notice to 
appear with the immigration court. For provisions relating to the 
issuance of a notice to appear by an immigration officer, or supervisor 
thereof, see 8 CFR 239.1(a).
* * * * *
0
11. Section 1239.2 is amended by:
0
a. Removing and reserving paragraph (b); and by
0
b. Revising paragraphs (a), (c), and (d), to read as follows:


Sec.  1239.2  Cancellation of notice to appear.

    (a) Prior to commencement of proceedings. For provisions relating 
to the authority of an immigration officer to cancel a notice to appear 
prior to the vesting of jurisdiction with the immigration judge, see 8 
CFR 239.2(a) and (b).
    (b) [Reserved]
    (c) Motion to dismiss. After commencement of proceedings pursuant 
to 8 CFR 1003.14, government counsel or an officer enumerated in 8 CFR 
239.1(a) may move for dismissal of the matter on the grounds set out 
under 8 CFR 239.2(a). Dismissal of the matter shall be without 
prejudice to the alien or the Department of Homeland Security.
    (d) Motion for remand. After commencement of the hearing, 
government counsel or an officer enumerated in 8 CFR 239.1(a) may move 
for remand of the matter to the Department of Homeland Security 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 Department of Homeland Security.
* * * * *

PART 1287--FIELD OFFICERS; POWERS AND DUTIES

0
12. The authority citation for Part 1287 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357.

0
13. Section 1287.4 is amended by:
0
a. Revising paragraphs (a)(1), (a)(2)(i), (a)(2)(ii)(A), and paragraph 
(c) to read as set forth below; and
0
b. Amending paragraph (d) by removing the words ``officer or''.


Sec.  1287.4  Subpoena.

    (a) Who may issue--(1) Criminal or civil investigations. For 
provisions relating to the authority of immigration officers to issue a 
subpoena requiring the production of records and evidence for use in 
criminal or civil investigations, see 8 CFR 287.4(a)(1).
    (2) Proceedings other than naturalization proceedings--(i) Prior to 
commencement of proceedings. For provisions relating to who may issue a 
subpoena requiring the attendance of witnesses or the production of 
documentary evidence, or both, for use in any proceeding under this 
title, other

[[Page 44908]]

than under 8 CFR part 335, or any application made ancillary to the 
proceeding, see 8 CFR 287.4(a)(2)(i).
    (ii) Subsequent to commencement of any proceeding. (A) In any 
proceeding under this chapter and in any proceeding ancillary thereto, 
an immigration judge having jurisdiction over the matter may, upon his/
her own volition or upon application of government counsel, the alien, 
or other party affected, issue subpoenas requiring the attendance of 
witnesses or for the production of books, papers and other documentary 
evidence, or both.
* * * * *
    (c) Service. For provisions relating to who may serve a subpoena 
issued under this section, see 8 CFR 287.4(c).
* * * * *

    Dated: July 21, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-17118 Filed 7-27-04; 8:45 am]
BILLING CODE 4410-30-P