[Federal Register Volume 70, Number 213 (Friday, November 4, 2005)]
[Rules and Regulations]
[Pages 67087-67090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21980]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 236, 239, 241 and 287

[ICE No. 2298-03]
RIN 1653-AA27


Powers and Authority of Officers and Employees

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: This rule continues the process of conforming the text of the 
Code of Federal Regulations to the governmental structures established 
in the Homeland Security Act and Reorganization Plan. This rule is not 
intended to and does not restrict or otherwise limit the authority of 
any Department of Homeland Security officer.

DATES: This final rule is effective November 4, 2005.

FOR FURTHER INFORMATION CONTACT: Jack Penca, Chief Counsel, Law 
Enforcement Support Center; 188 Harvest Lane, Williston,Vermont 05495; 
telephone number: (802) 872-6056.

SUPPLEMENTARY INFORMATION:

Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2135) (HSA), 6 U.S.C. 
101 et seq., which created the new Department of Homeland Security 
(Department or DHS). Pursuant to the provisions of the HSA, DHS came 
into existence on January 24, 2003. The functions of the

[[Page 67088]]

Immigration and Naturalization Service (Service) and all authorities 
with respect to those functions, transferred to DHS on March 1, 2003, 
and the Service was abolished on that date, pursuant to the HSA and the 
Department of Homeland Security Reorganization Plan, as modified 
(Reorganization Plan). The transition and savings provisions of the 
HSA, including sections 1512(d) and 1517 of the HSA, 6 U.S.C. 552(d), 
557, provide that references relating to the Service in statutes, 
regulations, directives or delegations of authority shall be deemed to 
refer to the appropriate official or component of DHS.
    This rule amends various lists of DHS officials authorized to 
perform certain immigration enforcement functions, including making 
administrative arrests for immigration violations, making custody 
determinations, issuing Notices to Appear (which set forth the charges 
against an alien and order the alien to appear before an immigration 
judge), and issuing Warrants of Removal (which authorize the removal of 
an alien from the United States after the issuance of a final 
administrative order). While this rule constitutes a delegation of 
authority, and constitutes a public statement thereof, it is not the 
only means by which such authority may be delegated by the Secretary 
pursuant to 8 CFR 2.1. The Secretary retains the authority to further 
delegate immigration authorities and functions through internal 
directives, memoranda, or other means. See Id. This rule does not alter 
any other delegation of authority by the Secretary that is not 
addressed in the rule. The rule does not affect any rights of aliens or 
the general public. See 8 CFR 287.12.

Explanation of Changes

    This final rule:
    (1) Amends 8 CFR 236.1 to set forth a list of officers authorized 
to issue and serve Form I-286, Notice of Custody Determination.
    (2) Amends 8 CFR 239.1 to revise the list of officers authorized to 
issue a Notice to Appear, which sets forth the immigration charges 
against the alien.
    (3) Amends 8 CFR 241.2 to revise the list of officers authorized to 
issue
    Warrants of Removal, which authorizes the removal of an alien from 
the United States after a final administrative order is entered.
    (4) Amends 8 CFR 287.5(e)(2) to revise the list of officers 
authorized to issue an administrative Warrant of Arrest for immigration 
violations.

Administrative Procedure Act

    This rule relates to agency organization and management and is 
exempt from the notice of proposed rulemaking and delayed effective 
date requirements of the Administrative Procedure Act, 5 U.S.C. 553(a).

Executive Order 12866

    This rule is limited to agency organization and management and 
therefore is not a rule as defined by Executive Order 12866. 
Accordingly, a regulatory impact analysis is not required.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), do not 
apply.

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 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.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal government, 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.

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 Homeland Security has 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

List of Subjects

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 239

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 241

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 287

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

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

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

0
1. The authority citation for part 236 continues to read as follows:

    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); Pub. L. 
107-296, 116 Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR part 2.


0
2. Section 236.1 is amended by adding a new paragraph (g) to read as 
follows:


Sec.  236.1  Apprehension, custody, and detention.

* * * * *
    (g) Notice of custody determination. (1) In general. At the time of 
issuance of the notice to appear, or at any time thereafter and up to 
the time removal proceedings are completed, an immigration official may 
issue a Form I-286, Notice of Custody Determination. A notice of 
custody determination may be issued by those immigration officials 
listed in 8 CFR 287.5(e)(2) and may be served by those immigration 
officials listed in 8 CFR 287.5(e)(3), or other officers or employees 
of the Department or the United States who are delegated the authority 
to do so pursuant to 8 CFR 2.1.
    (2) Cancellation. If after the issuance of a notice of custody 
determination, a determination is made not to serve it, any official 
authorized to issue such notice may authorize its cancellation.

[[Page 67089]]

PART 239--INITIATION OF REMOVAL PROCEEDINGS

0
3. The authority citation for part 239 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1221, 1229; Pub. L. 107-296, 116 Stat. 
2135 (6 U.S.C. 101, et seq.); 8 CFR part 2.


0
4. Section 239.1 is amended by:
0
a. Revising paragraphs (a)(37) and (a)(38); and by
0
b. Adding paragraphs (a)(39) through (a)(41).
    The revisions and additions read as follows:


Sec.  239.1  Notice to appear.

    (a) * * *
* * * * *
    (37) Deputy port directors;
    (38) Supervisory service center adjudications officers;
    (39) Unit Chief, Law Enforcement Support Center;
    (40) Section Chief, Law Enforcement Support Center; or
    (41) Other officers or employees of the Department or of the United 
States who are delegated the authority as provided by 8 CFR 2.1 to 
issue notices to appear.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

0
5. 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, 1228, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4013(c)(4); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 
101, et seq.); 8 CFR part 2.

0
6. Section 241.2 is revised to read as follows:


Sec.  241.2  Warrant of removal.

    (a) Issuance of a warrant of removal. (1) In general. A Form I-205, 
Warrant of Removal, based upon the final administrative removal order 
in the alien's case shall be issued by any of the following immigration 
officials:
    (i) Director, Detention and Removal Operations;
    (ii) Deputy Assistant Director, Field Operations;
    (iii) Field Office Directors;
    (iv) Deputy Field Office Directors;
    (v) Assistant Field Office Directors;
    (vi) Officers in Charge;
    (vii) Special Agents in Charge;
    (viii) Deputy Special Agents in Charge;
    (ix) Associate Special Agents in Charge;
    (x) Assistant Special Agents in Charge;
    (xi) Group Supervisors;
    (xii) Resident Agents in Charge;
    (xiii) District Field Officers;
    (xiv) Chief Patrol Agents;
    (xv) Deputy Chief Patrol Agents;
    (xvi) Assistant Chief Patrol Agents;
    (xvii) Patrol Agents in Charge;
    (xviii) Unit Chief, Law Enforcement Support Center;
    (xix) Section Chief, Law Enforcement Support Center;
    (xx) Port Directors;
    (xxi) Deputy Port Directors;
    (xxii) Assistant Port Directors;
    (xxiii) Director, Field Operations;
    (xxiv) Deputy Director, Field Operations;
    (xxv) Assistant Director, Field Operations; and
    (xxvi) Other officers or employees of the Department or the United 
States who are delegated the authority as provided in 8 CFR 2.1 to 
issue Warrants of Removal.
    (2) Costs and care during removal. The immigration officials listed 
in paragraphs (a)(1)(i) through (xxv) of this section, and other 
officers or employees of the Department or the United States who are 
delegated the authority as provided in 8 CFR 2.1, shall exercise the 
authority contained in section 241 of the Act to determine at whose 
expense the alien shall be removed and whether his or her mental or 
physical condition requires personal care and attention en route to his 
or her destination.
    (b) Execution of the warrant of removal. Any officer authorized by 
8 CFR 287.5(e)(3) to execute administrative warrants of arrest may 
execute a warrant of removal.

PART 287--FIELD OFFICERS; POWERS AND DUTIES

0
7. The authority citation for part 287 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 
Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101, et seq.); 8 CFR part 
2.


0
8. Section 287.5(e)(2) is revised to read as follows:


Sec.  287.5  Exercise of power by immigration officers.

* * * * *
    (e) * * *
    (2) Issuance of arrest warrants for immigration violations. A 
warrant of arrest may be issued by any of the following immigration 
officials who have been authorized or delegated such authority:
    (i) District directors (except foreign);
    (ii) Deputy district directors (except foreign);
    (iii) Assistant district directors for investigations;
    (iv) Deputy assistant district directors for investigations;
    (v) Assistant district directors for deportation;
    (vi) Deputy assistant district directors for deportation;
    (vii) Assistant district directors for examinations;
    (viii) Deputy assistant district directors for examinations;
    (ix) Officers in charge (except foreign);
    (x) Assistant officers in charge (except foreign);
    (xi) Chief patrol agents;
    (xii) Deputy chief patrol agents;
    (xiii) Assistant chief patrol agents;
    (xiv) Patrol agents in charge;
    (xv) Assistant patrol agents in charge;
    (xvi) Field operations supervisors;
    (xvii) Special operations supervisors;
    (xviii) Supervisory border patrol agents;
    (xix) The Assistant Commissioner, Investigations;
    (xx) Institutional Hearing Program directors;
    (xxi) Area port directors;
    (xxii) Port directors;
    (xxiii) Deputy port directors;
    (xxiv) Assistant Area port directors;
    (xxv) Supervisory deportation officers;
    (xxvi) Supervisory detention and deportation officers;
    (xxvii) Group Supervisors;
    (xxviii) Director, Office of Detention and Removal Operations;
    (xxix) Special Agents in Charge;
    (xxx) Deputy Special Agents in Charge;
    (xxxi) Associate Special Agents in Charge;
    (xxxii) Assistant Special Agents in Charge;
    (xxxiii) Resident Agents in Charge;
    (xxxiv) Field Office Directors;
    (xxxv) Deputy Field Office Directors;
    (xxxvi) District Field Officers;
    (xxxvii) Supervisory district adjudications officers;
    (xxxviii) Supervisory asylum officers;
    (xxxix) Supervisory special agents;
    (xl) Director of investigations;
    (xli) Directors or officers in charge of detention facilities;
    (xlii) Directors of field operations;
    (xliii) Deputy or assistant directors of field operations;
    (xliv) Unit Chief, Law Enforcement Support Center;
    (xlv) Section Chief, Law Enforcement Support Center;
    (xlvi) Director, Field Operations;
    (xlvii) Deputy Director, Field Operations;
    (xlviii) Assistant Director, Field Operations;
    (xlix) Immigration Enforcement Agents; or

[[Page 67090]]

    (l) Other officers or employees of the Department or the United 
States who are delegated the authority as provided in 8 CFR 2.1 to 
issue warrants of arrest.
* * * * *

    Dated: October 17, 2005.
Michael Chertoff,
Secretary of Homeland Security.
[FR Doc. 05-21980 Filed 11-3-05; 8:45 am]
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