10312 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

Executive Office for Immigration

Review

8 CFR Parts 1, 3, 103, 204, 207, 208,

209, 211, 212, 213, 214, 216, 217, 221,

223, 232, 233, 234, 235, 236, 237, 238,

239, 240, 241, 242, 243, 244, 245, 246,

248, 249, 251, 252, 253, 274a, 286, 287,

299, 316, 318, and 329

[INS No. 1788–96; AG ORDER No. 2071–

97]

RIN 1115–AE47

Inspection and Expedited Removal of

Aliens; Detention and Removal of

Aliens; Conduct of Removal

Proceedings; Asylum Procedures

AGENCY: Immigration and Naturalization

Service, Justice, and Executive Office for

Immigration Review, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This interim rule amends the

regulations of the Immigration and

Naturalization Service (Service) and the

Executive Office for Immigration

Review (EOIR) to implement the

provisions of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 (IIRIRA) governing

expedited and regular removal

proceedings, handling of asylum claims,

and other activities involving the

apprehension, detention, hearing of

claims and ultimately the removal of

inadmissible and deportable aliens. This

rule incorporates a number of changes

which are a part of the Administration’s

reinvention and regulation streamlining

initiative.

DATES: Effective date: This interim rule

is effective April 1, 1997.

Comment date: Written comments

must be submitted on or before July 7,

1997.

ADDRESSES: Please submit written

comments, in triplicate, to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, NW, Room 5307,

Washington, DC 20536. To ensure

proper handling, please reference INS

number 1788–96 on your

correspondence. Comments are

available for public inspection at the

above address by calling (202) 514–3048

to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: For

matters relating to the Executive Office

for Immigration Review—Peggy Philbin,

General Counsel, Executive Office for

Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, VA

22041, telephone number (703) 305–

0470; for asylum issues—Michael Shaul,

Field Manual Project Office,

Immigration and Naturalization Service,

425 I Street NW, ULLB—4th Floor,

Washington, DC 20536, telephone

number (202) 616–7439; for inspections

issues—Linda Loveless, Office of

Inspections, Immigration and

Naturalization Service, 425 I Street NW,

Room 4064, Washington, DC 20536,

telephone number (202) 616–7489; for

detention and removal issues—Len

Loveless, Office of Detention and

Deportation, Immigration and

Naturalization Service, 425 I Street NW,

Room 3008, Washington, DC 20536,

telephone number (202) 616–7799.

SUPPLEMENTARY INFORMATION:

Background

The Immigration and Naturalization

Service and the Executive Office for

Immigration Review jointly published a

proposed rule on January 3, 1997 (62 FR

443–517 (1997)), to implement sections

of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,

Pub. L. 104–208, which was enacted on

September 30, 1996. This legislation

significantly amended the Immigration

and Nationality Act (Act) by revising the

asylum process and providing a

mechanism for the determination and

review of certain applicants who

demonstrate a credible fear of

persecution if returned to their own

country; expanding the grounds of

inadmissibility; redefining applicants

for admission to include aliens who

entered the United States without

inspection; creating new expedited

removal procedures for aliens

attempting to enter the United States

through fraud or misrepresentation or

without proper documents;

consolidating the former exclusion and

deportation proceedings into one

unified removal proceeding; and

reorganizing and renumbering

numerous provisions of existing law.

The effective date of most of the

provisions affecting asylum, inspection,

and removal processes is April 1, 1997,

and implementing regulations must be

in place by March 1, 1997. The

proposed rule allowed only a 30-day

comment period. The limited comment

period was necessary, given the short

statutory deadline and the time needed

to draft the rule, coordinate with

interested agencies, and complete the

regulatory review process by the Office

of Management and Budget. In order to

meet the statutory deadline for an

implementing regulation and yet

provide adequate opportunity for public

input on the issues addressed in this

rulemaking, this rule is being published

as an interim rule with an additional

120-day comment period.

The Department received 124

comments on the proposed rule. Most of

the commenters represented either

attorney organizations or voluntary

organizations predominantly involved

with refugees and asylum claimants.

Commenters addressed a variety of

topics, with much of the focus on

asylum, expedited removal, and

voluntary departure. The Department

also received comments from individual

members of Congress and Congressional

subcommittees. Since many of the

comments were duplicative or endorsed

the submissions of other commenters,

they will be addressed by topic, rather

than referencing each specific comment

and commenter. Also, because many of

the comments were complex and dealt

with issues that may be better addressed

after the Department has had a period of

time to gain operational experience

under the new law, suggestions that

were not adopted for the interim period

will be further considered when a final

rule is prepared. A number of comments

were received concerning sections of the

regulations that were not specifically

changed by the proposed rule, but were

simply moved to new sections. The

Department has not addressed these

comments at this time, but will consider

them either as part of separate

rulemaking initiatives or as part of the

final rule rather than the interim rule,

after the Service and EOIR more closely

study the proposals. This

supplementary information will identify

significant changes made to the

proposed rule and briefly discuss

reasons why many other major

suggestions were not adopted at this

time.

Although the Department has

addressed the major comments received,

there will be further detailed analysis of

these comments, as well as

consideration of the additional

comments received during the 120-day

comment period following publication

of the interim regulation. This will

ensure every suggestion is more fully

explored. Commenters responding to

the interim rule may choose to amend

or expand on prior comments or address

other areas not raised by commenters

during the first comment period.

Definitions

Several sections of the statute, such as

sections 212(a)(9), 240B, and 241 of the

Act, refer to arriving aliens, even though

this term is not defined in statute. After

carefully considering these references,

the Department felt that the statute
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10313

seemed to differentiate more clearly

between aliens at ports-of-entry and

those encountered elsewhere in the

United States. For clarity, ‘‘arriving

alien’’ was specifically defined in 8 CFR

part 1, and the Department invited

commentary on the proper scope of the

regulatory definition.

One commenter suggested that aliens

interdicted in United States waters

should not be included in the definition

because persons arriving in United

States waters have already legally

arrived in the United States. The Board

of Immigration Appeals (BIA) has

consistently held that the mere crossing

into the territorial waters of the United

States has never satisfied the test of

having entered the United States. See

Matter of G, 20 I&N Dec. 764 (BIA 1993).

Aliens who have not yet established

physical presence on land in the United

States cannot be considered as anything

other than arriving aliens. In addition,

the Department has for years relied on

interdiction efforts to stem the flow of

inadmissible aliens and attempted

illegal entries by sea. The inclusion of

aliens interdicted at sea in the definition

of arriving alien will support the

Department’s mandate to protect the

nation’s borders against illegal

immigration. These provisions in no

way alter the Department’s current

interdiction policy and should not be

construed as to require that all

interdicted aliens be brought to the

United States. Only when an express

decision is made, in accordance with

existing interdiction policies, to

transport an interdicted alien to the

United States, will that alien be

considered an arriving alien for

purposes of the Act.

Another commenter suggested that

the definition be expanded to include

aliens who have been present for less

than 24 hours in the United States

without inspection and admission. The

Department extensively considered this

and similar options, such as a distancebased distinction. For the reasons

discussed below relating to the decision

not to apply the expedited removal

provisions at this time to certain aliens

who entered without inspection, and

considering the difficulty not only in

establishing that the alien entered

without inspection, but also in

determining the exact time of the alien’s

arrival, the Department continues to

believe the position taken in the

proposed rule is correct and will not

modify this definition in the interim

rule. The definition of ‘‘arriving alien’’

will be given further consideration in

the final rule, however, drawing upon

the experience of the early

implementation of the interim rule.

One commenter objected to the

inclusion of parolee in the definition of

arriving alien. The definition in the

proposed rule states ‘‘An arriving alien

remains such even if paroled pursuant

to section 212(d)(5) of the Act.’’ The

inclusion of paroled aliens was based on

the statutory language in section

212(d)(5) of the Act, which states

‘‘* * * but such parole of such alien

shall not be regarded as an admission of

the alien and when the purposes of such

parole shall, in the opinion of the

Attorney General, have been served the

alien shall forthwith return or be

returned to the custody from which he

or she was paroled and thereafter his

case shall continue to be dealt with in

the same manner as that of any other

applicant for admission to the United

States.’’ Existing regulations at

§ 212.5(d) relating to termination of

parole echo this provision, stating

‘‘* * * he or she shall be restored to

the status he or she had at the time of

parole.’’ The Department feels there is

solid statutory basis for inclusion of

certain paroled aliens in the definition

of arriving alien, and so will retain this

provision.

The Department has added two

additional definitions for the sake of

clarity. The term ‘‘Service counsel’’ has

been added to clarify that although the

term refers to any immigration officer

designated to represent the Service

before the Immigration Court or the BIA.

Existing regulations interchangeably use

this term and a variety of other terms,

including trial attorney, district counsel

and assistant district counsel. The term

‘‘aggravated felony’’ has also been

defined by reference to section

101(a)(43) of the Act as amended by

IIRIRA. The regulatory definition

clarifies that the amended section

101(a)(43) applies to any proceeding,

application, custody determination or

adjudication.

Parole of Aliens

This interim rule modifies § 212.5(a)

to comport with the statutory change

made by IIRIRA to section 212(d)(5)(A)

of the Act.

Withdrawal of Application for

Admission

The proposed rule contains

provisions to implement the

longstanding practice used by the

Service to permit applicants for

admission to voluntarily withdraw their

application for admission to the United

States in lieu of removal proceedings,

now included in section 235(a)(4) of the

Act. The withdrawal provisions in the

proposed rule were written to conform

with rulings of the BIA on withdrawal

and with standard practice in many

jurisdictions. Several commenters

suggested that every alien subject to the

expedited removal provisions should

automatically be offered the opportunity

to withdraw his or her application for

admission prior to the secondary

inspection interview. Permission to

withdraw an application for admission

is solely at the discretion of the

Attorney General and is not a right of

the alien, a premise that has been

consistently upheld by the BIA. Only

the Attorney General may decide

whether to pursue removal charges

against an alien who has violated the

immigration laws. Withdrawal of

application for admission is only one of

several discretionary options that may

be considered by the Service once the

facts of the case are known, and so will

not automatically be offered to all aliens

subject to expedited removal.

The Department does, however, share

the concern of several commenters that

aliens who may be inadvertently or

unintentionally in violation of the

immigration laws or regulations should

not be subject to the harsh consequences

of a formal removal order. The

Department also wishes to ensure that

the expedited removal provisions and

the discretionary option to permit

withdrawal are applied consistently and

fairly throughout the nation. Although

not included in the regulations at this

time, the Department intends to

formulate policy guidance and criteria

for determining the types of cases in

which such permission should or

should not be considered.

Classes Subject to Expedited Removal

The Department requested public

comment regarding the appropriate use

of the authority conferred by the statute

upon the Attorney General to expand

the class of aliens subject to expedited

removal. Most commenters commended

the Department on its decision not to

apply at this time the expedited removal

provisions to aliens in the United States

who have not been admitted or paroled

and who cannot establish continuous

physical presence in the United States

for the previous two years. At this time,

the Department will apply the

provisions only to ‘‘arriving aliens,’’ as

defined in § 1.1(q). The Department

acknowledges that application of the

expedited removal provisions to aliens

already in the United States will involve

more complex determinations of fact

and will be more difficult to manage,

and therefore wishes to gain insight and

experience by initially applying these

new provisions on a more limited and

controlled basis.
10314 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

The Department does, however,

reserve the right to apply the expedited

removal procedures to additional

classes of aliens within the limits set by

the statute, if, in the Commissioner’s

discretion, such action is operationally

warranted. It is emphasized that a

proposed expansion of the expedited

removal procedures may occur at any

time and may be driven either by

specific situations such as a sudden

influx of illegal aliens motivated by

political or economic unrest or other

events or by a general need to increase

the effectiveness of enforcement

operations at one or more locations.

Although several commenters

suggested that imposition of the

provisions should only occur after

publication of a proposed rule followed

by a comment period, the statute does

not impose any specific notice

requirement in connection with the

Attorney General’s designation under

section 235(b)(1)(A)(3), and certainly

does not impose the requirement of a

full administrative rulemaking. Indeed,

such a requirement would defeat a

major purpose of this provision: to

allow the Attorney General to respond

rapidly, effectively, and flexibly to

situations of mass influx or other

exigencies. The Attorney General has

elected to exercise this authority in

connection with publication of a notice

in the Federal Register (in advance,

where practicable) simply as a matter of

sound administration and policy. The

provisions contained in § 235.3(b) of

this interim rule will apply for now only

to arriving aliens.

Several commenters suggested that

certain classes of individuals, such as

minors, certain nonimmigrant

classifications, and aliens claiming to be

lawful permanent residents or U.S.

citizens, should not be subject to

expedited removal, or that it should not

be applied where resources or location

do not permit optimal inspection

conditions. Some stated that aliens in

expedited removal should be entitled to

a full hearing before an immigration

judge. The statute is clear that the

expedited removal provisions apply to

all aliens inadmissible under sections

212(a)(6)(C) or (7) of the Act, and that

such aliens are not entitled to further

hearing or review with specific limited

exceptions. Although the statute does

not require it, the Department has

provided for supervisory review and

concurrence on all expedited removal

orders. The statute itself provides for

review of a claim to lawful permanent

resident, refugee, or asylee status. In

addition, the Department has a certain

amount of prosecutorial discretion

provided by statute. It may, in lieu of

instituting removal proceedings, permit

an alien to withdraw his or her

application for admission in those cases

where there is no fraudulent intent and

the alien is inadmissible only through

inadvertent error or misinformation.

There are also discretionary waivers

available in certain cases.

Reorganization of § 235.3(b)(1) and (2)

In order to provide a more logical

discussion of the applicability of the

expedited removal provisions and the

procedures for applying them,

§ 235.3(b)(1) (determination of

inadmissibility) and § 235.3(b)(2)

(applicability) as they appeared in the

proposed regulation have been

interchanged and revised as discussed

below.

Expedited Removal Procedures

Many commenters stated that the

provisions in § 235.3(b) were not

sufficiently explicit to ensure that the

expedited removal provisions are fairly

and consistently applied. Because most

of these commenters represented

organizations primarily concerned with

refugee and asylum issues, we have

addressed this topic in detail below in

the section relating to credible fear

determinations and claims of asylum or

fear of persecution by aliens subject to

expedited removal.

Review of Claim of Status as Lawful

Permanent Resident, Asylee, or Refugee

Several commenters suggested

provisions of § 235.3(b)(5) were not

sufficiently clear to provide adequate

review of claims by returning lawful

permanent residents, asylees, or

refugees who are subject to expedited

removal. Specifically, the commenters

asserted that § 235.3(b)(5)(ii) could be

interpreted to imply that an alien whose

claim to lawful permanent residence is

verified and is not granted a

discretionary waiver or provided an

opportunity through deferred inspection

to present the required documents could

be ordered removed under section

235(b) of the Act. These commenters

requested that § 235.3(b)(5)(iv) of the

proposed regulation be amended to

allow that claimed lawful permanent

residents, asylees, or refugees (who the

Service has been unable to verify ever

was admitted in such status) be referred

directly to removal proceedings under

section 240 of the Act.

For the following reasons, these

sections of the proposed regulation will

not be changed in the interim rule.

Section 235.3(b)(5)(ii) of the proposed

regulation relates to those arriving

aliens whose prior admission as a

lawful permanent resident has been

verified by the immigration officer by

referring to official Service records. The

Department intends that when such a

prior admission is verified, the

individual will not be removed under

the expedited removal provisions of

section 235(b) of the Act, regardless of

the officer’s determination as to the

individual’s current admissibility and/

or retention of such lawful permanent

status. For that reason the first sentence

of § 235.3(b)(5)(ii) sets forth this

prohibition. Since the removal

provisions under section 235(b) of the

Act are not available, the only actions

left for the examining officer are to:

admit the individual (through the grant

of a waiver if need be); defer inspection

to allow the individual to retrieve the

appropriate documents; or place the

person in removal proceedings under

section 240 of the Act. This process will

allow those individuals verified as

having once been admitted as a lawful

permanent resident, asylee, or refugee a

full evidentiary hearing in removal

proceedings under section 240 of the

Act before an immigration judge to

address the heavily fact-based issues of

abandonment of status or other issues

concerning loss of status. The language

‘‘may initiate proceedings’’ was used

here to indicate that the officer is not

required to initiate any proceedings but

may opt to admit the individual into the

United States.

As for those individuals claiming to

be returning lawful permanent

residents, asylees, or refugees, but who

are not verified by the Service as having

ever been admitted in such status, the

referral to the immigration judge in

§ 235.3(b)(5)(iv) is for the purpose of

allowing the individual to establish

such a prior admission in such status,

nothing more. If the individual

establishes such a prior admission, the

immigration judge will terminate the

expedited removal order and at that

point that person will be in the same

position as the person whose prior

admission was verified by the

inspecting Service officer: the Service

can admit the individual or contest his

or her current retention of such status in

the context of removal proceedings

under section 240 of the Act.

Another commenter contended that it

is not appropriate to refer aliens who are

verified as having been admitted or

establish that they were once admitted

as lawful permanent residents, asylees,

or refugees to proceedings under section

240 of the Act. Section 235(b)(1)(C) of

the Act states that the Attorney General

shall provide regulations for

administrative review of an expedited

removal order entered against ‘‘an alien

who claims under oath . . .’’ to have
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10315

been lawfully admitted as a lawful

permanent resident, asylee, or refugee.

The statute provides no further directive

as to how aliens who actually have been

admitted in such status are to be

processed if, in fact, the Service believes

that such status may no longer be valid.

If that claim is never verified or

established before the inspecting

Service officer or an Immigration Judge,

the expedited removal order entered

against the alien will be effected and the

alien will be removed from the United

States. However, once an alien

establishes admission in such status, it

is not inconsistent with the statute for

further proceedings against an alien

known to have been lawfully admitted

as a permanent resident, asylee, or

refugee to occur in the context of

proceedings under section 240 of the

Act. Further, given the greater interests

and ties to the United States normally

at stake for such aliens compared to

those arriving without any previous

status, the Department considers it

appropriate that verified arriving

permanent residents, asylees, and

refugees be accorded the protections

inherent in proceedings under section

240 of the Act.

Review of Claim to U.S. Citizenship

Several commenters stated that while

the statute and regulations provide for

review of an expedited removal order of

an alien claiming to be a lawful

permanent resident, refugee, or asylee,

there is no such provision for review of

a claim to U.S. citizenship. While U.S.

citizens are not subject to the

inadmissibility and removal provisions

of the Act and the Department makes

every effort to prevent the inadvertent

removal of U.S. citizens, there are

approximately 35,000 false claims to

U.S. citizenship made every year at

ports-of-entry. Congress recognized this

problem in IIRIRA by adding a new

ground of inadmissibility to section

212(a)(6)(C)(ii) of the Act specifically

designating such aliens as inadmissible

and subject to the expedited removal

provisions. Existing regulations at

§ 235.1(b), which have been in place for

many years, place the burden of

establishing a claim to U.S. citizenship

on the person seeking entry. Otherwise,

that person is inspected as an alien. To

provide an additional level of review

and safeguard against a mistaken

determination, the Department will

institute the same procedures contained

in § 235.3(b)(5) for persons who have

not been able to establish U.S.

citizenship, but who maintain a claim

under oath or under penalty of perjury

to be U.S. citizens, which are used for

persons claiming to be lawfully

admitted as permanent residents,

refugees, or asylees.

Several commenters stated that the

regulations do not provide any criteria

for the detention or release of these

individuals. The provisions of

§ 235.3(b)(2)(iii) requiring detention of

all aliens subject to the expedited

removal provisions and issued a

removal order also apply to persons

whose claim to lawful permanent

resident, refugee, asylee, or U.S. citizen

status has not been verified. To clarify

that detention is required for these

individuals, the interim rule reiterates

this requirement in § 235.3(b)(5)(i).

Filing of an Application for a Refugee

Travel Document While Outside the

United States

Several commenters remarked

favorably on the proposal to revise 8

CFR part 223 to allow refugees and

asylees to apply for refugee travel

documents from outside the United

States, after departure from the United

States, under certain very limited

circumstances. The Department

proposed this revision with full

awareness of the provision in section

208(c)(1) of the Act under which the

Attorney General may allow the alien to

travel abroad ‘‘with the prior consent of

the Attorney General.’’ Despite the

implied language of the statute, the

Department felt that an exception was

warranted for those cases where the

alien innocently departed in ignorance

of the requirement or, although aware of

the requirement, departed without

applying for the document due to an

urgent humanitarian need, such as the

impending death of a close relative. It

should be noted that the current

regulations only require that an

application be filed before departure,

not that the applicant delay travel until

after the application is approved and the

document is received. The Service has

always provided the option of allowing

the alien to pick up the document

overseas at an American consular post.

A few commenters suggested that the

decision whether to accept such

applications not be left to the discretion

of the Service. This change has been

made. However, the regulation does not

remove the general requirement that the

application be filed before departure,

nor does it intend that the new

procedure be viewed as a routine

method of obtaining the document.

Although not specifically stated in the

regulation, the Department intends that

if it is apparent that the alien knew of

the general requirement and simply

chose to ignore it (e.g., if the alien had

previously been issued a refugee travel

document through this ‘‘overseas

procedure’’ and there was no emergency

necessitating the more recent

departure), the director may determine

that favorable exercise of discretionary

authority is not warranted. Accordingly,

the regulation provides that the district

director having jurisdiction over the

overseas location, or over the inspection

facility in the case of an alien at a portof-entry, may deny the application as a

matter of discretion.

A few commenters suggested that

there be no limit on how long after

departure the application may be filed.

Others suggested that the time limit be

shortened from 1 year to 6 months to

coincide with the 6 month time frame

in section 101(a)(13)(C) of the Act,

which is the period during which a

lawful permanent resident who meets

certain other requirements is not

considered to be an applicant for

admission. Another commenter stated

that the validity of a refugee travel

document approved under this process

should not be limited to 1 year from the

date of the alien’s departure from the

United States, so long as the application

was filed within 1 year of that

departure. The 1-year limitation was

chosen because it is the maximum

validity period for which a document

would have been approved had the

alien complied with the requirement of

filing prior to departure. Allowing an

applicant to file from outside the United

States more than 1 year after departure

would effectively authorize a longer

validity period for the person who failed

to comply with the requirement than for

one who did. This would not be

appropriate. Likewise, the 6-month

period during which a lawful

permanent resident (who meets the

other criteria in section 101(a)(13) of the

Act) is not deemed to be seeking

admission is not analogous to that of the

stranded refugee, since the refugee is

clearly deemed to be seeking admission.

Additionally, 6 months might be too

short a time for the alien who realizes

his or her error to file the application

and for the Service to verify eligibility

and approve that application. The

Department feels that in those cases

where it is proper to allow an exception

from the requirement to file before

departure, it is appropriate that the

document be valid for the same length

of time as for the person who complied

with that requirement.

Revision of Asylum Procedures

In general, many commenters

requested that specific ‘‘step-by-step’’

procedural instructions be placed in the

regulations regarding the interview

process at both the secondary inspection

stage and the credible fear
10316 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

determination stage. Although a number

of these suggestions have been adopted,

others have not. While the Department

appreciates both the necessity for equal

and proper treatment of all cases and

the advantages of standardization, it

must also recognize that not all

situations are identical and the

interviewing officer must be allowed a

certain amount of flexibility in

conducting interviews to account for

differences in individual situations.

Convention Against Torture

Many commenters urged that there be

express reference in several parts of the

regulation to the non-refoulement

obligation under Article 3 of the

Convention Against Torture. This article

requires a state not to ‘‘expel, return

(‘refouler’) or extradite a person to

another state where there are substantial

grounds for believing that he or she

would be in danger of being subjected

to torture.’’ This article has been in

effect for the United States since

November 1994. Although Article 3 of

the Torture Convention itself is not selfexecuting, the Attorney General has

sufficient administrative authority to

ensure that the United States observes

the limitations on removal required by

this provision. In fact, the Service has

received and considered individual

requests for relief under the Torture

Convention since November 1994 and

has arranged for relief where

appropriate. For the present, the

Department intends to continue to carry

out the non-refoulement provision of

the Torture Convention through its

existing administrative authority rather

than by promulgating regulations. The

Service is, however, developing

thorough guidelines to address Article 3

issues and intends to issue those

guidelines soon. These guidelines

generally, and the expedited removal

process in particular, will be

implemented in accordance with Article

3.

Prohibitions on Filing Asylum

Applications

There were numerous comments on

the prohibitions on the filing of asylum

applications in section 208(a)(2) of the

Act. Because of the importance of a

decision to deny an alien the right to

apply for asylum, the Department has

chosen to adopt the suggestion that only

asylum officers, immigration judges,

and the BIA be empowered to make

such determinations. The Department

has also made clear that, while the alien

must establish by clear and convincing

evidence that he or she applied within

one year of his or her arrival in the

United States, the alien’s burden of

establishing that one of the exceptions

in section 208(a)(2)(D) applies must

only be to the ‘‘satisfaction of the

Attorney General.’’ The rule also

contemplates that the asylum officer or

immigration judge hearing such a case

will explore the reasons for the late

filing. Finally, and importantly, the

Department has decided to follow the

recommendation that the date of arrival

used to determine the one-year period

in section 208(a)(2)(B), consistent with

the effective date of that section, be no

earlier than April 1, 1997. Thus, the first

case to which this prohibition could

apply would be one filed on April 2,

1998.

Regarding the changed circumstances

exception in section 208(a)(2)(D), the

Department has followed the

recommendation of numerous

commentators to drop the language

limiting this exception, for purposes of

section 208(a)(2)(B), to circumstances

that arise after the one-year period. The

Department has also decided to provide

a better definition of this exception by

indicating that the definition may

include either changed conditions in the

home country or changes in objective

circumstances relating to the applicant

in the United States, including changes

in applicable U.S. law, that create a

reasonable possibility that the applicant

may qualify for asylum. Because of

inconsistency between the formulation

of changed circumstances in section

208(a)(2)(D) and the formulation in

section 240(c)(5)(ii) of the Act, which

permits an alien to file a motion to

reopen beyond the time limit normally

applicable to such a motion, the

Department has decided to drop the

requirement that, for purposes of the

prohibition in section 208(a)(2)C), such

exception may only be raised through a

motion to reopen.

A large number of commenters

requested that the Department list

examples of what is meant by

extraordinary circumstances within the

meaning of section 208(a)(2)(D) of the

Act, and several commenters suggested

examples that they believed were

appropriate. Accordingly, the

Department has included such a list in

the interim rule. It is important to bear

two points in mind when reviewing the

list. First, the list is not all-inclusive,

and it is recognized that there are many

other circumstances that might apply if

the applicant is able to show that but for

such circumstances the application

would have been filed within the first

year of the alien’s arrival in the United

States. Second, the alien still has the

burden of establishing the existence of

the claimed circumstance and that but

for that circumstance, the application

would have been filed within the year.

Some commenters requested that the

Department clarify that failure to

establish changed circumstances or

extraordinary circumstances might bar

an applicant from applying for asylum,

it does not bar him or her from applying

for withholding of removal. The

Department agrees and the interim rule

contains this clarification.

Some commenters objected to the

requirement that an alien who meets the

extraordinary circumstances criteria, file

the application ‘‘as soon after the

deadline as practicable given those

circumstances,’’ preferring instead the

phrase ‘‘within a reasonable time period

given those circumstances.’’ The

Department has adopted this suggestion

and a similar formulation for the

‘‘changed circumstances’’ exception.

‘‘Asylum-Only’’ Hearings

The Department noted a conflict in

the proposed rule between the

provisions of § 208.2(b)(1)(i)(C) and

§ 252.2(b) regarding crewmembers who

are granted landing permits prior to

April 1, 1997, and subsequently become

deportable. The former provision would

place such alien in ‘‘asylum-only’’

proceedings before the immigration

judge, while the latter would place him

or her in regular removal proceedings

under section 240 of the Act. The

interim rule corrects this conflict by

specifying that the ‘‘asylum-only’’

process applies to those crewmembers

granted landing privileges on or after

April 1, 1997. Also, § 208.2(b)(2) has

been expanded to explain the

consequences of failure to appear for an

asylum-only hearing and to set forth

conditions and limitations on reopening

such proceedings.

Discovery and FOIA Issues

Some commenters expressed concern

about the statement in 8 CFR 208.12 that

‘‘[n]othing in this part shall be

construed to entitle the applicant to

conduct discovery directed towards the

records, officers, agents, or employees of

the Service, the Department of Justice or

the Department of States.’’ Specifically,

they feared that the provision would

preclude someone from seeking, or

excuse the Service from providing,

information under the Freedom of

Information Act (FOIA). This fear is

totally groundless. FOIA provisions are

covered under separate statutory and

regulatory bases. The Service is guided

by 5 U.S.C. 522 and 8 CFR 103 with

regard to FOIA matters, neither of which

are in any way affected by this

rulemaking.
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10317

Persecution for Illegal Departure or

Applying for Asylum

Several commenters objected to the

proposed elimination of

§ 208.13(b)(2)(ii) and § 208.16(b)(4),

which require asylum officers and

immigration judges to give ‘‘due

consideration’’ to evidence that the

government of the applicant’s country of

nationality or last habitual residence

persecutes its nationals or residents if

they leave the country without

authorization or seek asylum in another

country. These commenters interpreted

this change to mean that the Department

does not wish to consider seriously such

evidence or to grant asylum or

withholding to persons who are at risk

of punishment for illegal departure from

their countries or for applying for

asylum abroad. This is not the case. The

Department and the United States

Government continue to deplore and

oppose certain countries’ practice of

severely punishing their citizens for

illegal departure or for applying for

asylum in another country. The

Department also acknowledges that

persons who face severe punishment for

such acts may continue to qualify for

asylum or withholding of removal.

However, the regulation at issue did not

clearly implement this policy. First, it

requires only that asylum officers and

immigration judges give ‘‘due

consideration’’ to evidence of such

practices; this is a vague and indefinite

standard. Second, it obliges adjudicators

to consider evidence of whether a

country ‘‘persecutes’’ its nationals for

such actions. Such language begs the

very question that an adjudicator must

answer in deciding such a case: Does

the alleged punishment amount to

persecution? It is well-established that

not all punishment for illegal departure

constitutes persecution. See, e.g., Sovich

v. Esperdy, 319 F. 2d 21 (2d Cir. 1963);

Matter of Chumpitazi, 16 I&N Dec. 629

(BIA 1978). However, in some cases, it

may. Such a question must be resolved

on a case-by-case basis. Thus, rather

than continue to have an ambiguous

regulation on this issue, the Department

believes its adjudicators should apply

the same standards to these cases as

they would to any other case in which

the applicant claims a fear that derives

from governmental prosecution. This is

best accomplished by removing the

provisions in question from the

regulations.

Exception to the Prohibition on

Withholding of Deportation in Certain

Cases

Several commenters objected to the

proposed rule’s limitation in

§ 208.16(c)(3) on those aliens who may

be eligible for relief under section

243(h)(3) of the Act, as amended by Pub.

L. 104–132. In particular, these

commenters object to the notion that the

United States may summarily preclude

from eligibility for withholding of

deportation aliens convicted of a

particularly serious crime, including an

aggravated felony, without individually

considering their cases. However, it is

well established in U.S. law that aliens

who have been convicted of an

aggravated felony are mandatorily

barred from obtaining withholding of

deportation. See, e.g., Kofa v. INS, 60 F.

3d 1084, 1090 (4th Cir. 1995) (en banc).

In the proposed regulation

implementing section 243(h)(3) of the

Act, the Department decided, consistent

with the revisions made to the

withholding of deportation statute by

the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, to

make relief under this section available

only to those persons convicted of an

aggravated felony who receive an

aggregate sentence of imprisonment of

less than 5 years. This proposal is

almost entirely consistent with a recent

precedent decision issued by the BIA on

this issue. See Matter of Q–T–M–T–, Int.

Dec. 3300 (BIA 1996). Thus, the

Department intends to retain the basic

approach in the proposed regulation.

We have only added a sentence

providing that an alien convicted of an

aggravated felony shall be presumed to

have been convicted of a particularly

serious crime. This minor change

renders the regulation fully consistent

with the Board’s decision in Matter of

Q–T–M–T–, supra.

Admission of the Spouse and Children

of an Asylee

The proposed rule reserved § 208.19

for regulations pertaining to the

admission of the spouse and children of

an asylee. This matter was the subject of

a separate proposed rule published July

9, 1996, see 61 FR 35,984 (1996) and the

Department had intended to incorporate

the revised regulations into this interim

rule. However, because analysis of the

comments to that earlier proposed rule

has not been completed, the Department

will instead redesignate the existing

regulations at § 208.21 as § 208.19. The

revised regulations on the admission of

the spouse and children of an asylee

will be incorporated into the final

regulations, which will be published

after the expiration of the comment

period for this interim rule.

Credible Fear Standard

Several commenters urged that we

adopt regulatory language emphasizing

that the credible fear standard is a low

one and that cases of certain types

should necessarily meet that standard.

Since the statute expressly defines the

term ‘‘credible fear of persecution,’’ we

have chosen not to provide in the rule

a further refinement of this definition.

However, both INS and EOIR will give

extensive training to their officials on

the purpose of the credible fear standard

and how it is to be applied to particular

cases. The Department believes that

such training will ensure that the

standard is implemented in a way

which will encourage flexibility and a

broad application of the statutory

standard.

Employment Authorization for Asylum

Applicants

Almost all who chose to comment on

the Department’s position regarding

work authorization for asylum

applicants were pleased with the

decision to continue to allow the

applicant to apply for an employment

authorization document once the

asylum application has been pending

for 150 days. One commenter requested

that the 150-day period be abolished,

but that suggestion was not deemed

viable, especially in light of the new

statutorily-mandated 6-month minimum

time before granting such authorization

contained in section 208(d)(2) of the

Act.

The Department has also modified the

regulations relating to employment

authorization at §§ 208.7(a) and

274a.12(a)(8) to ensure that applicants

who appear to an asylum officer to be

eligible for asylum but have not yet

received a grant of asylum are able to

obtain employment authorization.

Section 208(d)(5)(A)(i) of the Act obliges

the Service, prior to granting asylum, to

check the identity of the applicant

‘‘against all appropriate records or

databases maintained by the Attorney

General and by the Secretary of State

* * *.’’ Such databases include, among

others, the Federal Bureau of

Investigation’s (FBI) fingerprint

database. At present, the Service

initiates such a fingerprint check at the

time it grants asylum; if the check turns

up information that undercuts that

decision, asylum is later revoked. The

Service’s experience is that the FBI’s

fingerprint checks often take a

significant period of time to complete.

The new statutory requirement at

section 208(d)(5)(A)(i) of the Act thus

means that after April 1, 1997, an alien

who would otherwise appear to be

eligible for asylum may have to wait for

a long period of time before he or she

can be granted asylum or employment

authorization. (A similar problem may
10318 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

arise in the case of an alien who is

determined to be a refugee under the

new language in section 101(a)(42) of

the Act but is precluded from being

granted asylum because of the cap in

section 207(a)(5) of the Act.) Such a

result is contrary to one of the chief

purposes of the asylum reforms brought

about by the regulatory changes of

January 1995: to ensure that bona fide

asylees are eligible to obtain

employment authorization as quickly as

possible. Thus, consistent with the

authority in section 208(d)(2) of the Act,

the Department has decided to make

employment authorization available to

asylum applicants who are

recommended for a grant of asylum but

have not yet received such grant of

asylum or withholding. An alien may

apply for employment authorization

under these provisions as soon as he or

she receives notice of the grant

recommendation.

Credible Fear Determinations and

Claims of Asylum or Fear of

Persecution by Alien Subject to

Expedited Removal

Under the new section 235(b)(1)(A)(ii)

of the Act, an alien subject to expedited

removal who indicates an intention to

apply for asylum or who expresses a

fear of persecution will be referred to an

asylum officer to determine if the alien

has a credible fear of persecution. Many

commenters stated that the regulation in

§ 235.3 was not sufficiently detailed in

delineating the following procedures for

recognizing and referring arriving aliens

who may be genuine refugees fleeing

persecution: disclosures to arriving

aliens; conditions of secondary

inspection; use of interpreters;

representation during secondary

inspection; written record of

proceeding; time and place of credible

fear interview; detention pending a

determination of credible fear; and

detention following a determination of

credible fear. We will address these

concerns individually.

Disclosures to Arriving Aliens

Many commenters expressed the

opinion that all arriving aliens should

be provided with information

concerning the credible fear interview.

This contention is based on the

language of the statute in section

235(b)(1)(B)(iv) that states: ‘‘The

Attorney General shall provide

information concerning the asylum

interview described in this

subparagraph to aliens who may be

eligible * * *.’’ The commenters’

position is that this requirement is not

limited only to aliens who ‘‘are’’

eligible, but that all aliens who are

suspected of qualifying for expedited

removal ‘‘may’’ be eligible, and that the

information should be given before the

secondary inspection pre-screening

process.

To understand the Service position on

this issue, one must understand the

general inspection process. All persons

entering the United States at ports-ofentry undergo primary inspection. U.S.

citizens are exempt from the inspection

process, but must nevertheless undergo

an examination to determine

entitlement to exemption from

inspection. In FY 96, the Service

conducted more than 475 million

primary inspections. During the primary

inspection stage, the immigration officer

literally has only a few seconds to

examine documents, run basic lookout

queries, and ask pertinent questions to

determine admissibility and issue

relevant entry documents. At most land

border ports-of-entry, primary

inspection duties are shared with U.S.

Customs inspectors, who are crossdesignated to perform primary

immigration inspections. If there appear

to be discrepancies in documents

presented or answers given, or if there

are any other problems, questions, or

suspicions that cannot be resolved

within the exceedingly brief period

allowed for primary inspection, the

person must be referred to a secondary

inspection procedure, where a more

thorough inquiry may be conducted. In

addition, aliens are often referred to

secondary inspection for routine

matters, such as processing immigration

documents and responding to inquiries.

While millions of aliens (almost 10

million in FY 96) are referred to

secondary inspection each year for

many reasons, approximately 90 percent

of these aliens are ultimately admitted

to the United States in a very short

period of time once they have been

interviewed and have established their

admissibility.

The secondary officer often does not

know if an alien is likely to be removed

under the expedited removal process

until he or she has questioned the alien.

Congress, in drafting the expedited

removal provisions, chose to include

both section 212(a)(6)(C) and 212(a)(7)

of the Act as the applicable grounds of

inadmissibility. The common

perception is that most expedited

removal cases will involve obvious

fraudulent documents, or aliens arriving

with no documents at all. This is not

necessarily the type of case that most

frequently falls within the provisions of

sections 212(a)(6)(C) and (7) of the Act.

Section 212(a)(6)(C) of the Act includes

‘‘any alien who, by fraud or willfully

misrepresenting a material fact, seeks to

procure (or has sought to procure or has

procured) a visa, other documentation,

or admission into the United States or

other benefit provided under this Act

* * *,’’ as well as aliens who falsely

represent themselves to be citizens of

the United States. In addition to the

presentation of fraudulent documents,

the falsity of which may not be verified

until a thorough examination has been

conducted, the fraud and

misrepresentation referenced in this

section may include falsehoods told by

the alien concerning his or her

admission or other misrepresentations

told to Government officials now or in

the past.

Section 212(a)(7) of the Act, in

addition to covering a lack of valid

documents (including expired or

incorrect visas or passports), also

encompasses the alien ‘‘who is not in

possession of a valid unexpired

immigrant visa.’’ Under immigration

law, aliens who cannot establish

entitlement to one of the nonimmigrant

categories contained in the Act are

presumed to be immigrants, and, if not

in possession of a valid immigrant visa,

are inadmissible under section 212(a)(7)

of the Act. The majority of the aliens

currently found inadmissible to the

United States fall into this category and

will now be subject to expedited

removal. Again, inadmissibility under

this ground often cannot be determined

until the secondary inspector has

thoroughly questioned the alien.

To fully advise, prior to any

secondary questioning, nearly all aliens

referred to secondary inspection of the

expedited removal procedures and of

the possibility of requesting asylum

would needlessly delay the millions of

aliens who are ultimately found

admissible after secondary questioning.

For almost all of these people, asylum,

fear of persecution, or fear of return is

not an issue.

The Service has very carefully

considered how best to ensure that bona

fide asylum claimants are given every

opportunity to assert their claim, while

at the same time not unnecessarily

burdening the inspections process or

encouraging spurious asylum claims.

Service procedures require that all

expedited removal cases will be

documented by creation of an official

Service file, to include a complete

sworn statement taken from the alien

recording all the facts of the case and

the reasons for a finding of

inadmissibility. This sworn statement

will be taken on a new Form I–867AB,

Record of Sworn Statement in

Proceedings under Section 235(b)(1) of

the Act. The form will be used in every

case where it is determined that an alien
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10319

is subject to the expedited removal

process, and contains a statement of

rights, purpose, and consequences of the

process. Among other things, it clearly

advises the alien that this may be the

only opportunity to present information

concerning any fears or concerns about

being removed from the United States,

and that any information concerning

that fear will be heard confidentially by

another officer. The final page of the

form contains a standard question

asking if the alien has any fear or

concern of being removed or of being

sent home. If, during the course of the

sworn statement, or at any time in the

process, the alien indicates a fear or

concern of being removed, he or she

will be given a more detailed written

explanation of the credible fear

interview process prior to being placed

in detention pending the credible fear

interview. The Inspector’s Field Manual

will contain detailed instructions and

guidance to officers to assist them in

recognizing potential asylum claims,

and this topic will also be covered in

officer training. Every expedited

removal case also undergoes

supervisory review before the alien is

removed from the United States. The

Service is confident that these

safeguards will adequately protect

potential asylum claimants. To ensure

that these procedures are followed in

every expedited removal case, language

has been added to § 235.3(b)(4)

outlining the procedures.

Conditions of Secondary Inspection

Numerous commenters indicated that

the secondary inspection should be

conducted in private, comfortable

rooms, and that no secondary inspection

should take place before an alien has

had time to rest (some commenters

suggested 24 hours), eat, and consult

with family, friends, counsel, or other

representatives. The commenters also

suggest that aliens should have access to

interpreters before and during the

screening process.

At airports, the inspection facilities

for the Federal Inspection Services

(FIS), which includes the Service, U.S.

Customs Service, the U.S. Department of

Agriculture, and the U.S. Public Health

Service, are provided by the airport

authorities. While the Government has

input when new facilities are

constructed, the inspection areas,

especially in older airports, simply do

not allow for the amenities suggested by

the commenters. The same is true for

land border ports, where the facility is

usually provided by the General

Services Administration and overall

space is often extremely limited. The

Service has always made every effort to

afford as much privacy during sensitive

or complex interviews as conditions

allow, and will continue to do so.

As for delaying the secondary

interview to allow every alien time to

rest prior to being questioned, the

Service again points out that it conducts

more than ten million secondary

inspections each year. Most of those

questioned are eager to have their

inspection completed as quickly as

possible. The Department has neither

the resources nor the authority to detain

all secondary referrals without first

conducting a prompt interview to

determine inadmissibility.

Use of Interpreters

The issue of language barriers and the

use of interpreters is not new to the

Service. The Service makes use of

interpreters whenever necessary and

will continue to do so to ensure that all

aliens are fully apprised of the

proceedings against them. The Service

currently uses its own officers, many of

whom are bilingual or multilingual,

airport personnel, or telephonic

interpretive services when in-person

interpreters are not available.

Occasionally, family members or

persons waiting to meet the arriving

alien may be allowed to assist in

translation of the interview. The Service

will use appropriate means to ensure

that aliens being removed are advised of

and understand the reasons for the

removal and the consequences of such

removal.

Representation During Secondary

Inspection

Several commenters stated that an

alien subject to expedited removal

should be able to obtain representation

or counsel prior to any secondary

inspection interview. As discussed in

the section on disclosures to aliens in

expedited removal, the secondary

inspection officer often does not know

that an alien will be subject to expedited

removal until such questioning has

taken place, nor will all determinations

of inadmissibility under section

212(a)(6)(C) or (7) of the Act result in an

expedited removal order. Section 292 of

the Act provides that in any removal

proceeding before an immigration judge,

the person concerned shall have the

privilege of being represented by

counsel, at no expense to the

Government. Congress did not amend

this section to include proceedings

before an immigration officer. In

addition, while Congress specifically

provided for consultation prior to the

credible fear interview, it did not

provide for consultation prior to the

immigration inspection and issuance of

the order. Therefore, the Department

will retain its interpretation that an

alien in primary or secondary

inspection is not entitled to

representation, except where the person

has become the focus of a criminal

investigation and has been taken into

custody for that purpose.

Written Record of Proceeding

Several commenters expressed

concern that there be a complete record

of proceeding to ensure that Service

officers are making proper decisions. As

previously explained, an official Service

file will be created on every expedited

removal case. The file will include

photographs, fingerprints, copies of any

documentary or other evidence

presented or discovered, and a complete

written sworn statement. The sworn

statement will record all facts of the

case and the alien’s statements. As with

all sworn statements taken by the

Service, the alien is required to initial

each page and any corrections, and sign

the statement certifying that he or she

has read (or had read to him or her), the

statement and that it is true and correct.

When necessary, interpreters will be

used. The language added to the

regulation at § 235.3(b)(2) requires that

such sworn statement be taken in every

case. Procedures developed for the

Inspector’s Field Manual also contain

very specific instructions regarding the

record of proceeding.

Time and Place of Credible Fear

Interview

Several commenters requested that

the regulations state where and when

the credible fear interviews will take

place. The statute provides that credible

fear interviews may take place either at

a port-of-entry or at other locations that

the Attorney General may designate.

The Service intends that most

interviews will be conducted at Service

detention facilities, but prefers the

flexibility to make adjustments to this

arrangement as the need arises.

Therefore, this operational concern will

not be addressed in the regulation. The

Service maintains detention facilities

near several major airports such as JFK,

Miami, and Los Angeles, as well as

many locations along the southern

border and other sites like Denver,

Seattle, and Houston. In circumstances

where the port of arrival is not near a

Service detention facility and it is

impractical to transport the alien to a

Service facility, the alien may be

detained in other Service-approved

detention sites, such as local or county

jails. In these instances an asylum
10320 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

officer will travel to the detention site

to conduct the interview.

Several commenters suggest that the

Service should conduct credible fear

interviews at its local asylum offices

whenever possible. The Service declines

to be bound by this suggestion because

of the prohibitive costs involved in

transporting aliens, under escort, to and

from detention facilities. However, the

Service retains the option to conduct

interviews at places designated for

asylum officers.

Similarly, the Service intends that

aliens will normally be given 48 hours

from the time of arrival at the detention

facility, in which to contact family

members, friends, attorneys, or

representatives. During the referral

process from the port-of-entry, they will

be given a list of pro bono

representatives. This list is provided for

the purpose of consultation prior to the

interview, and does not entitle the alien

to formal counsel or representation

during the credible fear interview. The

aliens will be given access to a

telephone to make such contacts.

Commenters suggest that aliens be given

petty cash or be permitted to make

telephone calls at Government expense;

however, the statute that provides for

such consultation specifically states that

the consultation shall be at no expense

to the Government.

Detention Pending a Determination of

Credible Fear

A few commenters stated that the

provisions of § 235.3(b)(4) for detention

of aliens awaiting a credible fear

determination are too harsh, and asked

that the rule be amended to allow for

parole of such aliens. However, because

section 235(b)(1)(B)(iii)(IV) of the Act

requires that an alien in expedited

removal proceedings ‘‘shall be detained

pending a final determination of

credible fear of persecution and, if

found not to have such a fear, until

removed,’’ the Department feels that

parole is appropriate only in the very

limited circumstances specified in

§ 235.3(b)(4). The interim rule has been

amended, however, to clarify that aliens

found to have a credible fear will be

subject to the generally applicable

detention and parole standards

contained in the Act. Although parole

authority is specifically limited while a

credible fear determination is pending

under § 235.3(b)(4), those found to have

a credible fear and referred for a hearing

under section 240 of the Act will be

subject to the rule generally applicable

to arriving aliens in § 235.3(c). In

addition, § 235.3(c) has been amended

to retain detention authority for aliens

whose admissibility will be determined

in exclusion proceedings after April 1,

1997.

Review of Credible Fear Determinations

The proposed regulation provides that

an alien may receive, upon request,

review by an immigration judge of an

asylum officer’s finding of no credible

fear. A number of commenters requested

that language be inserted in the interim

regulation which presumes that an

asylum officer’s finding of no credible

fear will be reviewed by an immigration

judge unless the alien desires to

abandon the review and return to his or

her home country. If such a suggestion

is not adopted, these commenters

request that, at a minimum, language be

inserted requiring that the asylum

officer advise the alien of his or her

right to request review of the negative

decision and requiring the officer to ask

the alien whether he or she desires such

review. The language of section

235(b)(1)(B)(iii)(III) of the Act clearly

provides that the alien has the

obligation to request review of a

negative credible fear determination.

The Department notes that § 208.30(e) of

the proposed regulation requires the

asylum officer to inquire whether the

alien wishes review of the negative

credible fear determination. This

provision is appropriated into Form I–

589.

A number of commenters asked that

the regulation provide that, whenever

practicable, the credible fear review be

conducted in person; that the alien may

be assisted by an attorney or other

representative; and that an interpreter

be provided when necessary. Another

commenter stated, however, that no

counsel should be allowed in the review

of credible fear determinations; rather, a

representative should be allowed to

submit a written statement. The

Department recognizes the concerns

raised by these commenters. However,

because the proposed regulation sets

forth a procedure for credible fear

review that is consistent with the

language of section 235(b)(1)(B)(iii)(III)

of the Act and provides the Attorney

General the flexibility to administer

such a procedure, the rule was not

changed.

One commenter asserted that the

proposed regulation that provides for an

alien who demonstrates a credible fear

of persecution to be placed in removal

proceedings under section 240 of the

Act is incorrect. The commenter

maintains that IIRIRA contemplates that

such aliens will be limited to an

‘‘asylum only’’ hearing with an appeal

to the Board. This portion of the

regulation will not be changed in the

interim rule. Section 235(b)(1)(B)(ii) of

the Act provides that if an asylum

officer determines that an alien has a

credible fear of persecution, the alien

‘‘shall be detained for further

consideration of the application for

asylum. The remainder of section 235(b)

of the Act is very specific as to what

procedures should be followed if an

alien does not establish a credible fear.

However, the statute is silent as to the

procedures for those who do

demonstrate a credible fear of

persecution. Once an alien establishes a

credible fear of persecution, the purpose

behind the expedited removal

provisions of section 235 of the Act to

screen out arriving aliens with

fraudulent documents or no documents

and with no significant possibility of

establishing a claim to asylum has been

satisfied. Therefore, the further

consideration of the application for

asylum by an alien who has established

a credible fear of persecution will be

provided for in the context of removal

proceedings under section 240 of the

Act.

Detention Following a Determination of

Credible Fear

Numerous commenters stated that

aliens who have established a credible

fear of persecution are presumptively

eligible for release and should not be

detained unless the government can

demonstrate that the alien poses a

danger to the community or a risk of

flight. Some stated that the burden

should be on the government to prove

that custody is necessary. Again, the

clear language of the statute states that

such aliens shall be detained. The

parole provisions of section 212(d)(5) of

the Act provide discretionary authority

to the Attorney General to parole into

the United States or from custody only

on a case-by-case basis. The credible

fear standard sets a low threshold of

proof of potential entitlement to asylum;

many aliens who have passed the

credible fear standard will not

ultimately be granted asylum. It should

also be noted, as stated by one

commenter, that these aliens are prima

facie inadmissible to the United States.

However, the Department intends, as

part of the credible fear interview

process, to assess the eligibility for

parole of aliens who have been

determined to have a credible fear. The

discretion to release from custody will

remain with the district director on a

case-by-case basis.

Effect of Initiation of Removal

Proceedings

Several commenters objected to the

language in section 239.3 providing that

the filing of a notice to appear has no
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10321

effect in determining periods of

unlawful presence. These commenters

noted that this section of the regulation

could be interpreted to mean that the

period of time a respondent is in

removal proceedings is not a period

‘‘authorized by the Attorney General,’’

which would mean that removal

proceedings would not toll the running

of time periods for purposes of the bars

to admission in section 212(a)(9)(B) of

the Act. The result, the commenters

assert, would be that people would be

compelled to abandon their legitimate

claims for relief from removal because,

by pursuing such relief before an

immigration judge or on appeal to the

Board, an individual would risk

accruing over 180 days in ‘‘unlawful

status’’ and thereby becoming

inadmissible under section

212(a)(9)(B)(i)(I) of the Act. The

commenters recommended that either

this language in section 239.2 be deleted

or that it be replaced by a statement that

the filing of a notice to appear tolls the

period of unlawful presence.

Upon review, the Department has

concluded that the regulation will be

retained without change in the interim

rule. Section 212(a)(9)(B)(iv) of the

statute is clear that any period of illegal

presence may tolled only in very limited

circumstances. This section of the

statute does not include issuance of a

charging document among those

circumstances. The Department does

not agree that application of this section

will deter aliens from pursuing valid

claims for relief in removal proceedings.

The same forms of relief, including

asylum and adjustment of status, remain

available in such cases, even after

passage of the 180 day and one year

time limits. Similarly, availability of

voluntary departure is unchanged.

Further clarification of the applicability

of section 212(a)(9) will be included in

a separate proposed rule which the

Service is currently drafting.

Motions to Reopen After Departure

From United States

A few commenters recommended that

motions to reopen be permitted after

departure and that the Department

delete the language in § 3.2(d) of the

proposed rule providing that motions to

reopen or reconsider cannot be made by

or on behalf of a person after that

person’s departure from the United

States. These commenters contend that

this regulation is no longer valid

because IIRIRA substituted former

section 106(c) of the Act with new

section 242. New section 242 of the Act

does not contain the provision of former

section 106(c) barring judicial review of

a final order of deportation or exclusion

if the alien departed the United States

after issuance of that order. The

commenters assert that if a petition for

review of habeas corpus is successful,

the petitioner should be lawfully

entitled to reopen his or her removal

case, even though he or she departed

from the United States. They argue that

such motions will promote judicial

efficiency and economy.

The Department has decided not to

adopt this suggestion and the interim

regulations will not be changed. No

provision of the new section 242 of the

Act supports reversing the long

established rule that a motion to reopen

or reconsider cannot be made in

immigration proceedings by or on behalf

of a person after that person’s departure

from the United States.

Departure Constituting Withdrawal of

Motion

In the proposed regulation, § 3.2(d)

did not provide that departure from the

United States after the filing of a motion

to reopen or a motion to reconsider

constitutes a withdrawal of such

motion. The Department has

reconsidered the advisability of

adjudicating motions to reopen and

reconsider subsequent to an alien’s

departure from the United States. The

interim regulation retains the long

established principal that any departure

subsequent to moving to reopen or

reconsider constitutes a withdrawal of

that motion. The Department believes

that the burdens associated with the

adjudication of motions to reopen and

reconsider on behalf of deported or

departed aliens would greatly outweigh

any advantages this system might

render. Further, the Department is

confident that the immigration judge’s

discretionary authority to stay the

deportation or removal of an alien who

has filed a motion to reopen or

reconsider will safeguard an alien from

being inappropriately deported before

he is heard on his motion to reopen or

motion to reconsider.

Time and Numerical Limitations on

Filing Motions

A number of commenters pointed out

that §§ 3.2(d) and 3.23(b) subject all

parties to time and numerical limits for

motions to reopen in deportation and

exclusion proceedings, but apply those

limits only to aliens in removal

proceedings. These commenters argue

that the same limitations should apply

to all parties in all proceedings.

IIRIRA specifically mandates that

‘‘[a]n alien may only file one motion to

reopen’’ in removal proceedings.

Congress has imposed limits on motions

to reopen, where none existed by statute

before, and specifically imposed those

limits on the alien only. The interim

regulations will not be changed.

One commenter suggested that the

time and numerical limitations for

motions to reopen should be broader

than changed country conditions, as

provided in § 3.23(b)(4). The commenter

asserted that IIRIRA contains a much

broader exception for individuals to

apply for asylum beyond the one year

deadline and that it is inconsistent for

the statute to provide these broader

exceptions if eligible applicants will be

barred from applying for asylum

because of the stricter motion to reopen

standard. As noted earlier, the

Department has decided to drop the

requirement that the changed

circumstances exception to the one year

filing deadline in section 208(a)(2) of

the Act be raised only through a motion

to reopen. The Department also notes

that the standard for reopening an

asylum case provided in 8 CFR

3.23(b)(4) is entirely consistent with the

asylum reopening standard provided in

IIRIRA.

Retention of September 30, 1996 CutOff Date on Filing Certain Motions

Some commenters indicated that

§ 3.2(c)(2) does not retain the September

30, 1996 cut-off date for earlier motions

to reopen, while the proposed section

3.2(b)(2) does retain the July 31, 1996

cut-off date for earlier motions to

reconsider. The commenters point out

that although these dates have passed,

they should be retained to ensure the

rights of respondents who submitted

timely motions that have not yet been

adjudicated. Since the commenters

demonstrate that the cut-off date in

§§ 3.2(c)(2) and 3.23(b)(1) are not

necessarily obsolete references, those

sections are revised in the interim

regulation to retain the appropriate cutoff dates.

Immigration Court Rules of Procedure

One commenter noted that § 3.12

omitted disciplinary proceedings under

§ 292.3 from the scope of the rules of

Immigration Court procedure. The

commenter correctly noted that no

explanation had been given as to why

disciplinary proceedings were omitted

from the scope of the rules. Section

292.3 is currently being revised by EOIR

and will ultimately be moved into 8

CFR 3. It was thought that the

disciplinary proceedings regulations

would have been revised and moved

into part 3 prior to publication of this

interim regulation and that a reference

to § 292.3 would not be necessary. The

disciplinary proceedings regulation,

however, is still in progress. The interim
10322 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

rule will therefore place the reference to

disciplinary proceedings pursuant to

§ 292.3 back into § 3.12.

One commenter claimed that

§ 3.25(b), which allows the immigration

judge to waive a hearing and enter a

decision upon a stipulated request for

that order, raises due process concerns

because the provision requiring an

immigration judge to determine that the

alien’s waiver is voluntary, knowing

and intelligent is not an adequate

safeguard. The interim rule does not

change this provision. The requirement

that the immigration judge determine if

an unrepresented alien’s waiver is

voluntary, knowing and intelligent

before granting a stipulated request for

an order safeguards against an

imprudent waiver of a formal

adjudication on the part of an

unrepresented alien. Further, the

request for the order and waiver of the

hearing must not only be stipulated to

by both the alien and the Service, but

must also be approved by the

immigration judge. If an immigration

judge is confronted with a stipulated

request raising due process concerns, he

or she may examine that request in the

context of a hearing.

Comments Relating to Removal

Hearings Under Section 240 of the Act

Several commenters were concerned

with various aspects of the ordinary

removal hearing process. One aspect of

the removal process that received

several comments was the method of

service of Form I–862, Notice to Appear.

Specifically, commenters were

concerned that service of the notice to

appear by regular mail would be

inadequate. A few commenters have

assumed that because service by

certified mail is not required in all

cases, it will not be used in any case.

Both the statute and the regulations,

however, allow for service by regular

mail only when personal service is ‘‘not

practicable.’’ Moreover, because the

regulatory provisions at issue follow

exactly the requirements of the Act,

these provisions have not been changed

in the interim rule.

Commenters expressed concern over

the provision at § 240.8(d) that states

that it is the alien’s burden to establish

that mandatory grounds for denial of

any application for relief do not apply.

It is well-settled that an alien bears the

burden of establishing eligibility for

relief or a benefit. This provision merely

reflects this well-settled rule. Also, an

alien is only required to establish

eligibility by a preponderance of the

evidence. This provision has not been

changed in the interim rule.

One commenter expressed concern

that § 240.10 of the proposed regulation

does not cross-reference § 236.1(e).

Section 236.1(e) requires that every

detained alien be notified that he or she

has the privilege of communication with

consular authorities. The commenter

proposed that § 240.10 require the

Service to determine whether the alien

is covered by § 236.1(e) and therefore

must have an opportunity to contact the

consular officer before a responsive

pleading. The Service is required to

comply with this requirement before

commencement of removal proceedings.

In the unlikely event that the Service

failed to comply with this requirement,

such a procedure could unduly delay an

otherwise routine removal case. Contact

with a consular officer is unlikely to

have any bearing on a respondent’s

inadmissibility or deportability. The

delay in the proceedings and its

attendant cost would generate little

substantive benefit for the alien as a

result.

One commenter expressed concern

over provisions in § 240.10(g)

implementing section 241(b) of the Act.

Those provisions allow the Attorney

General to remove an alien to a country

other than as designated by the alien

under certain circumstances. The

commenter suggests a 30-day waiting

period for removal from the time the

alien is given notice of the new country

of removal. The Service has considered

this suggestion and has decided not to

change this provision in the interim

rule. This procedure is not required by

the Act, and would place a significant

strain on detention resources.

Another commenter argued that

provisions in § 240.7(a) relating to the

admissibility of prior statements in

removal proceedings were unnecessary.

Specifically, the commenter was

concerned about criminal pleas

resulting in less than a criminal

conviction and their effect on removal

proceedings. It is always within the

authority of the immigration judge to

assign the statement a proper weight.

Moreover, this provision was carried

over from the prior regulations where it

formerly existed at § 242.14(c). Thus,

this section has not been changed in the

interim rule.

Several commenters requested that

§ 240.12(a) of the proposed regulation

include language that was in former

§ 242.18(a) requiring that the decision of

an immigration judge ‘‘shall include a

discussion of the evidence and findings

as to deportability [inadmissibility].’’

The commenters assert that such

findings and discussion of the evidence

is necessary for the respondent to

properly determine whether to file a

motion for reconsideration of that

decision or to prepare a notice of appeal

with sufficient specificity to prevent a

summary dismissal by the Board under

§ 3.1(d)(1)(1–a) of the regulations. The

Department disagrees. The proposed

regulation allows for an adequate

articulation of the immigration judge’s

basis for his or her decision as well as

the underlying reasons for granting or

denying the request. The rule provides

sufficient information for the

respondent to prepare a notice of appeal

with sufficient specificity to prevent a

summary dismissal of appeal. For these

reasons this section has not been

changed in the interim rule.

Other comments regarding procedures

are not discussed individually and have

not been adopted in this interim rule.

Most recommended changes to existing

procedures or commented on matters

which directly resulted from changes to

the law itself. These comments will be

reviewed and considered in greater

detail when the final rule is prepared.

Guardian Ad Litem

In the proposed rulemaking, the

Department solicited comments on the

advisability of procedures for

appointment of guardians ad litem.

Several thorough and detailed

comments were received. Because the

issue is a complex and sensitive one, the

Department has decided to further

examine the issue and prepare a

separate rulemaking at a later date.

Cancellation of Removal

A number of commenters expressed

concern with section 240.20(b) of the

proposed regulation, which states that

an application for cancellation of

removal may be filed only with the

Immigration Court after jurisdiction has

vested pursuant to section 8 CFR 3.14.

Section 3.14(a) provides that

jurisdiction vests when a charging

document is filed with the Immigration

Court by the Service. The practical

concern raised by the commenters arise

if the Service serves Form I–862, Notice

to Appear, on a respondent but does not

file it with the Immigration Court. If the

Service does not file a notice to appear

which has been served, a respondent

would not have access to the

Immigration Court to obtain forms of

relief such as cancellation of removal or

adjustment of status. Moreover, the

service of the notice to appear will cut

off the accrual of time in continuous

residence or continuous physical

presence for that respondent under new

section 240A(d)(1) of the Act. The

commenters proposed that language be

added to § 3.14(a) of the regulation

allowing for jurisdiction to vest and
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10323

proceedings to commence when a

charging document is filed by the

Service or by a respondent. The

commenters added that § 3.14(a) already

permits immigration judges to conduct

bond proceedings and credible fear

determinations without a charging

document being filed with the court.

Thus, they assert, there is no rational

basis to permit the initiation of those

two types of proceedings and not permit

an immigration judge to consider an

application for cancellation of removal

after a respondent files a charging

document that previously has been

served on the respondent by the Service.

The ability to file a charging document

has rested exclusively with the Service

for a number of years, without problem.

This portion of the proposed regulation

will not be changed in the interim rule.

The issue of the initiation of removal

proceedings lies within the

prosecutorial discretion of the Service.

The Service needs to have control over

when charging documents are filed with

the Immigration Courts in order to best

manage its administrative resources.

Apprehension, Custody, and Detention

of Aliens

The IIRIRA extended the mandatory

detention provisions to additional

classes of inadmissible and deportable

aliens but provided an exception for

certain witnesses. It also allowed the

Attorney General the option of a

transition period for implementation of

mandatory detention. The Service

exercised this discretion and

implemented the transition period

custody rules on October 9, 1996,

effective for 1 year. This interim rule

amends the regulations to comply with

the amended Act by removing the

release from custody provisions for

aliens who may no longer be released.

These amendments to the regulations

will take effect upon the termination of

the transition period. As for noncriminal aliens, the rule reflects the new

$1,500 minimum bond amount

specified by IIRIRA. Despite being

applicants for admission, aliens who are

present without having been admitted

or paroled (formerly referred to as aliens

who entered without inspection) will be

eligible for bond and bond

redetermination.

Several commenters complained that

the Service has no national standards of

detention. They stated that policies,

practices, and decisions regarding

outside communication are bewildering,

arbitrary, and inconsistent. Consistent

with its focus on providing safe, secure,

and humane detention environments,

the Service has implemented detention

facility improvements and has set as a

goal the accreditation of each of its

facilities. The Krome Service Processing

Center (SPC) has received accreditation

with commendation from the Joint

Commission of Healthcare

Organizations (JCHO), the most

prestigious medical accreditation that

can be awarded. Currently, six SPCs are

accredited by the National Commission

on Correctional Health Care (NCCHC),

and accreditation is pending at the

remaining three SPCs. The Denver

contract facility is also NCCHC

accredited. Six contract facilities have

American Correctional Association

(ACA) accreditation and two others

have begun the accreditation process.

Several commenters stated that the

Service should require ACA standards

in local detention facilities used.

Approximately 46 percent of the

detention space used by the Service is

with state and local facilities. Formal

ACA accreditation of a state or local

facility is a matter for the state or local

government. The Service could not meet

its detention requirements by using only

facilities that have been formally

accredited. The Service has established

its own rigorous inspection program

that uses ACA standards for evaluation

of a facility. The Service will not use a

facility that fails to pass our inspection.

Several commenters stated that § 236

of the proposed rule as written is a

reversal of long established procedure

that provides that a noncriminal alien is

presumptively eligible for release. The

Service has been strongly criticized for

its failure to remove aliens who are not

detained. A recent report by the

Department of Justice Inspector General

shows that when aliens are released

from custody, nearly 90 percent abscond

and are not removed from the United

States. The mandate of Congress, as

evidenced by budget enhancements and

other legislation, is increased detention

to ensure removal. Accordingly, because

the Service believes that the regulation

as written is consistent with the intent

of Congress, the interim rule has not

modified the proposed rule in this

regard.

Several commenters noticed a

discrepancy between the discussion in

the supplementary information and the

substance of § 236.1(c)(5) of the

proposed regulation. The

supplementary information stated the

Department’s intended approach, and

clause (i) of the proposed regulation was

in error. Accordingly, the interim rule

removes paragraph (c)(5)(i) of § 236.1

and renumbers the remaining

paragraphs (c)(5)(ii), (iii), and (iv). The

effect of this change is that inadmissible

aliens, except for arriving aliens, have

available to them bond redetermination

hearings before an immigration judge,

while arriving aliens do not. This

procedure maintains the status quo

regarding release decisions for aliens in

proceedings, as discussed in the

supplementary information of the

proposed regulation.

One commenter stated that no

criminal alien may be released pursuant

to the Transition Period Custody Rules

in section 303(b)(3) of IIRIRA where

there is sufficient space to detain the

individual alien. The same commenter

stated that it was not the intention of

Congress that EOIR continue to exercise

bond redetermination authority under

the Transition Rules. Aside from the

classes of aliens covered by the

Transition Rules, however, the basic

structure of the Rules is essentially that

of section 242(a)(2) of the Act as it stood

prior to AEDPA, providing for the

release of ‘‘lawfully admitted’’ criminal

aliens (as well as unremovable criminal

aliens), in the exercise of the Attorney

General’s discretion, when such aliens

can demonstrate the absence of a danger

to the community or a flight risk upon

release. The Department intends to issue

a separate proposed rule in the near

future establishing both substantive

limitations and procedural safeguards

concerning the release of criminal aliens

eligible to be considered for release

under the Transition Rules.

Accordingly, the interim rule has not

been modified.

Expedited Deportation Procedures for

Aliens Convicted of Aggravated

Felonies Who Are Not Lawful

Permanent Residents

The interim rule amends the Service’s

regulations to comply with the Act, as

amended, by: including aliens who have

lawful permanent residence on a

conditional basis under section 216 of

the Act as being subject to expedited

administrative deportation procedures;

removing references to prima facie

eligibility for relief; and eliminating

references to release from custody, since

aliens subject to these proceedings are

now statutorily ineligible for release as

a result of changes to other sections of

the Act.

Several commenters addressed the

time period for response, the role of the

deciding Service officer, the risk of

deporting U.S. citizens or permanent

residents, and other aspects of the

procedure. These procedures were not

changed from the regulation as it was

written at § 242.25. These comments

were previously addressed when the

regulation was published on August 24,

1995.
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Voluntary Departure and Employment

Authorization

The proposed rule outlined how

voluntary departure would be handled

at various stages of proceedings. Since

new section 240B of the Act and the

corresponding proposed regulations

represented a significant departure from

the predecessor provisions for voluntary

departure, public comments regarding

the Department’s approach to

implementation of this provision were

particularly welcomed.

Several commenters wrote in

opposition to the language in § 240.25

providing that ‘‘[t[he Service may attach

to the granting of voluntary departure

any conditions it deems necessary to

ensure the alien’s timely departure from

the United States.’’ Many based their

opposition on their contention that the

language was ‘‘beyond the scope of the

legislation.’’ However, a similar

provision already exists in regulation.

The present § 242.5(b) states that

‘‘officers * * * may deny or grant the

application and determine the

conditions under which the alien’s

departure shall be effected.’’ Similarly,

current § 244.1 states that voluntary

departure may be authorized ‘‘under

such conditions as the district director

shall direct.’’ Basically, the language of

the proposed rule merely stated what

was already in regulation. In addition, it

is noted that voluntary departure is a

privilege granted by the Service and is

not an entitlement to be claimed by the

alien. An alien must establish both that

he or she is statutorily eligible for

voluntary departure and that he or she

merits voluntary departure in the

exercise of discretion. See Matter of

Seda, 17 I&N Dec. 550 (BIA 1980). The

ability to attach conditions to a grant of

voluntary departure is necessary to the

Service’s ability to consider the request

and is fully consistent with the intent of

Congress in enacting section 240B of the

Act, which tightens the previously

applicable voluntary departure

provisions in order better to assure

actual departure. Therefore, the

language will not be changed for the

interim rule.

Several commenters objected to the

maximum time limits for voluntary

departure of 120 days prior to

completion of removal proceedings, and

60 days at the completion of removal

proceedings. Those commenters

indicated that the statutory language

limiting voluntary departure to 120 and

60 days did not preclude an

interpretation authorizing additional

extensions of voluntary departure in

increments of 120 or 60 days. Several

commenters, however, wrote in support

of the voluntary departure provisions

contained in the proposed rule. One

commenter stated that ‘‘it would be

unlawful to extend or renew voluntary

departure beyond the single period of 60

or 120 days specified in that section.’’

Another commenter stated that ‘‘These

changes represent nothing more or less

than what has been mandated by

Congress, and there is no basis on which

they can be substantively altered or

amended in the promulgation of the

interim rule.’’

In its proper form, voluntary

departure serves several functions. First,

it allows the Service to allocate its

enforcement resources more efficiently

through case management. Second, it

saves resources by allowing aliens to

depart at their own expense rather than

at the expense of the government.

Finally, it benefits the aliens involved

by allowing them to avoid the harsh

consequences of a formal order of

removal. Too often, however, voluntary

departure has been sought and obtained

by persons who have no real intention

to depart. The IIRIRA was intended as

a comprehensive reform of the

immigration system and was

specifically designed to curb abuses of

voluntary departure. A reading of the

voluntary departure provisions allowing

for extensions of voluntary departure in

multiple increments of 120 or 60 days

inconsistent with the purpose of the

statute and would be at best difficult to

reconcile with the language of section

240B of the Act.

Prior to IIRIRA, the authority for

voluntary departure was found in

section 244(e) of the Act, which

contained no time limitation. Now, for

the first time, there are statutory

restrictions limiting the time for which

voluntary departure may be authorized.

The Conference Report on H.R. 2202

stated that under section 240B(a) of the

Act, ‘‘[p]ermission to depart voluntarily

under this subsection shall not be valid

for a period exceeding 120 days * * *.’’

Similarly, the Conference Report stated

that under section 240B(b) of the Act,

‘‘[t]he period for voluntary departure

cannot exceed 60 days * * *. The

Department concludes that the total

period, including all extensions, may

not exceed 120 days for voluntary

departure granted prior to completion of

proceedings or 60 days for voluntary

departure granted at the conclusion of

proceedings.

Several commenters objected to the

elimination of employment

authorization for aliens who have been

granted voluntary departure. Several

other commenters wrote in favor of the

elimination. Prior to April 1, 1997,

voluntary departure was often granted

by EOIR and the Service for extended

periods of time. With grants and

extensions of voluntary departure for

extended periods of time, it was

reasonable to allow for employment

authorization. Now, voluntary departure

is limited to a maximum of 120 days.

Moreover, it has long been recognized

that employment provides a magnet that

draws aliens to this country. Voluntary

departure provides an opportunity for

an alien to complete the process of

departure from the United States and

should not be seen as a new opportunity

for employment authorization. Although

the granting of voluntary departure will

not, in and of itself, cause any

previously approved employment

authorization to be terminated, neither

will the granting of voluntary departure

provide a new opportunity to apply for

employment authorization. Therefore,

the interim rule will eliminate the

general provision found at

§ 274a.12(c)(12) for employment

authorization for aliens who have been

granted voluntary departure.

Employment authorization will be

retained only for beneficiaries of the

Family Unity Program (section 301 of

the Immigration Act of 1990, Pub. L.

101–649).

Several commenters expressed

concern about the consequences for

certain abused immigrant spouses and

children of lawful permanent residents

with properly filed self-petitions who

were granted voluntary departure and

work authorization pending availability

of an immigrant visa. The Department

shares the concerns of the commenters

and is looking at how best to address

them outside the context of voluntary

departure.

Several commenters objected to the

provisions for appeals, generally stating

that the Service could appeal approvals,

yet aliens cannot appeal denials. In

§ 240.25 (voluntary departure by the

Service), the appeal procedure at

paragraph (e) states that a denial of an

application for voluntary departure may

not be appealed, but such denial shall

be without prejudice to the alien’s right

to apply to the immigration judge in

accordance with § 240.26. Section

240.26(g)(1) (voluntary departure by

EOIR) places limitations for appeals

only on the Service, and places none on

the alien. Section 240.26(g)(2) discusses

an appeal of a grant or denial of

voluntary departure. Therefore, the

appeal procedures in §§ 240.25(e) and

240.26(g)(1) and (2) do not allow the

Service to appeal approvals while

precluding aliens from appealing

denials. In reviewing the comments,

however, it became apparent that the

language of 240.26(g) appeared to
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10325

prohibit the Service from appealing a

grant of voluntary departure on the

ground that the alien was not eligible for

the relief. Any such implication was

unintended, and the language has been

corrected to reflect that both the alien

and the Government may appeal issues

of both eligibility and discretion, but

that neither may appeal the length of the

voluntary departure period granted by

the immigration judge.

One commenter expressed concern

about the dangerous intersection

between the voluntary departure time

limits and new section 212(a)(9)(B) of

the Act, which imposes a 3- to 10-year

bar to admission upon any alien

unlawfully present in the United States

from 180 days to more than 1 year. The

commenter pointed out that individuals

now granted voluntary departure for

extended periods of time for

humanitarian reasons will become

unlawfully present after 120 days of

voluntary departure. The commenter

stated that if deferred action is to be the

sole avenue of relief, the Service needs

to develop policy guidelines so that

district directors will not be afraid to

use it to enable the sick and the dying

to receive treatment and to enable their

parents to work for health insurance.

The Department acknowledges that

there will be some compelling

humanitarian cases for which voluntary

departure cannot be extended. A district

director will be able to give individual

consideration for a recommendation for

deferred action to the regional director.

If approved by the regional director,

employment authorization may be

granted under the provisions of

§ 274a.12(c)(14).

Several commenters objected to the

provision for revocation found in

§ 240.25(f), and stated that revocation of

voluntary departure should require

notice and the opportunity to be heard.

However, this provision already exists

in the current § 242.5(c), which provides

for revocation of a grant of voluntary

departure without notice. The

revocation is an adverse action initiated

by the Service; therefore, personal

service of the decision is required in

accordance with § 103.5a(c). However, a

notice of intent to revoke will not be

issued. The interim rule will be

amended to point out that the

revocation shall be communicated in

writing, and shall cite the statutory basis

for revocation.

Several commenters objected to the

limits in § 240.26(b)(1) on grants of

voluntary departure under section

240B(a) of the Act, particularly the

requirement that a request for such

relief be made at or before a master

calendar hearing, and decided by the

immigration judge within 30 days

thereafter. Other commenters stated that

these provisions were confusing.

The regulation has not been changed

substantively based on these comments

but has been revised to clarify the

applicable time periods. The revisions

make it clear that in order to obtain

voluntary departure from an

immigration judge under section

240B(a) of the Act, an alien must request

it prior to or at the master calendar

hearing at which the case is initially

calendared for a merits hearing, which

is not necessarily the first master

calendar hearing. This ensures that the

alien is not obligated to request

voluntary departure at preliminary

stages of the process, before the case is

ready to be scheduled for a merits

hearing. The Department believes that

this allows sufficient time for the alien

to consider voluntary departure and

other options and to discuss them with

counsel. If such requests cannot be

resolved at the master calendar hearing

the immigration judge may take an

additional 30 day period in case he or

she desires additional time to consider

the voluntary departure request or to

complete the processing. In the event

that the alien decides only after the

specified master calendar hearing that

he or she wishes to request voluntary

departure, such a request can still be

made later, but requires the concurrence

of the Service under § 240.26(b)(2).

Finally, even without Service

concurrence, the immigration judge may

grant voluntary departure under section

240B(b) of the Act upon conclusion of

the proceeding.

Several commenters objected to the

language at § 240.26(b)(1)(iv)

authorizing the grant of voluntary

departure by immigration judges

pursuant to section 240B(a) of the Act

only if the alien waives appeal of all

issues. The Department believes that

voluntary departure authorized by

immigration judges prior to completion

of proceedings should be for the

purpose of settling cases in the interests

of economy and justice. If an alien

wishes to contest any issues, the proper

forum will be a merits hearing. Once a

case proceeds to a merits hearing and

contested issues are settled, voluntary

departure remains a form of relief;

however, it may be authorized only

pursuant to the provisions of section

240B(b) of the Act for voluntary

departure granted at the completion of

removal proceedings.

Several commenters wrote that the

regulation should provide an exemption

for an alien who would otherwise have

a removal order issued against him or

her for failing to depart when the alien,

through no fault of his own, has not

obtained travel documents. The

regulation already provides, at

§ 240.26(b)(3)(ii), that the Service in its

discretion may extend the period within

which the alien must provide such

documentation. However, the provision

for extension is discretionary and not an

entitlement. The alien in removal

proceedings bears the responsibility to

demonstrate eligibility for any relief

requested. The alien is encouraged to

work with the government of his or her

home country to obtain a valid passport

or other travel authorization if a travel

document is necessary for return to that

country. Failure to obtain necessary

travel documentation will leave the

Department no option but to enforce the

alternate order of removal.

Several commenters pointed out that

in a case involving an alien who was

previously granted voluntary departure

and failed to depart, the proposed

regulation correctly reflects the statutory

language that such an alien is not

eligible for voluntary departure or relief

under sections 240A, 245, 248, and 249

of the Act. The commenters pointed out,

however, that the proposed regulation

fails to include the statutory

requirement that the alien must receive

notice of the penalty for failing to

depart. The Department agrees with the

commenters, and will change the

language in the interim rule to reflect

the requirement that a voluntary

departure order permitting an alien to

depart voluntarily shall inform the alien

of the penalties under section 240B(d) of

the Act.

Sections 240B(a)(1) and 240B(b)(1)(C)

of the statute bar aliens deportable

under section 237(a)(2)(A)(iii) of the Act

from voluntary departure. Because

aliens entering without inspection are

no longer considered deportable,

however, the statutory bar might be read

as allowing such aliens to obtain

voluntary departure despite an

aggravated felony conviction. The

statute would thus create the anomaly of

more favorable treatment for aggravated

felons who enter without inspection.

The Department does not believe that

Congress intended such an anomaly. In

any event, having become aware of the

problem, the Department now exercises

its discretion to bar such aliens from

receiving this form of relief.

Finally, several commenters requested

clarification regarding the effect of a

motion or appeal to the Immigration

Court, BIA, or a federal court on any

period of voluntary departure already

granted. Since an alien granted

voluntary departure prior to completion

of proceedings must concede

removeability and agree to waive
10326 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

pursuit of any alternative form of relief,

no such appeal or motion would be

possible in this situation. Regarding

post-hearing voluntary departure, the

Department considered several options,

but has not adopted any position or

modified the interim rule. The

Department has identified three possible

options: no tolling of any period of

voluntary departure; tolling the

voluntary departure period for any

period that an appeal or motion is

pending; or setting a brief, fixed period

of voluntary departure (for example, 10

days) after any appeal or motion is

resolved. The Department wishes to

solicit additional public comments on

these or other possible approaches to

this issue so that it can be resolved

when a final rule is promulgated.

Detention and Removal of Aliens

Ordered Removed

This rule provides for the assumption

of custody during the removal period,

allows detention beyond the period, and

provides conditions for discretionary

release and supervision of aliens who

cannot be removed during the period.

Several commenters stated that the

wording of the statute provides for

release of noncriminal aliens during the

removal period and suggested that the

Service adopt a policy of allowing the

alien to remain at liberty during the 90-

day removal period. One commenter

stated that the proposed rule is

consistent with the language and intent

of IIRIRA and should be retained in the

interim rule. The plain language of the

statute requires that an alien be held in

custody during the 90-day removal

period and not be released. Accordingly,

the proposed language is retained in the

interim rule.

Several commenters stated that the

statute requires release on an order of

supervision after the expiration of the

90-day removal period. One commenter

stated that the proposed rule is

consistent with the language and intent

of IIRIRA and should be retained in the

interim rule. Taken together, sections

241(a)(3) and (a)(6) of the Act provide

that any alien who is inadmissible or

who is deportable on the grounds

enumerated in paragraph (a)(6) may be

detained beyond the removal period.

Additionally, any alien who is a risk to

the community or is unlikely to appear

for removal may be detained regardless

of the charge of inadmissibility or

deportability. Accordingly, the

proposed language is retained in the

interim rule.

Reinstatement of Removal Orders

Against Aliens Illegally Reentering

Several commenters suggested that

aliens caught illegally reentering the

United States after removal should be

provided a hearing before an

immigration judge. They expressed

concern that issues such as identity and

the propriety of the earlier removal

order would not be addressed. One

commenter argued that new section

241(a)(5) of the Act was not intended to

be a substantive revision of former

section 242(f) of the Act, which also

dealt with reinstatement of deportation

orders, but was merely taken from a bill

proposing to recodify the Act without

substantive change. One commenter

wrote in support of these provisions,

stating that they were consistent with

the language and intent of IIRIRA.

A review of the relevant statutory

provisions reveals that a substantive

change was in fact effected in the

transition from section 242(f) of the Act

to section 241(a)(5) of the Act. Section

242(f) of the Act provided only that the

deportation order was to be reinstated

upon illegal entry. New section

241(a)(5) of the Act provides that the

removal order is reinstated from its

original date, but adds the provision

‘‘and is not subject to being reopened or

reviewed.’’

The Service has taken steps to ensure

the positive identification of an alien

apprehended and removed under this

section. In § 241.8(a)(2), the regulation

requires fingerprint identification before

an alien can be removed under section

241(a)(5) of the Act. In cases where no

fingerprints are available and the alien

disputes that he or she was previously

removed, the alien will not be removed

under section 241(a)(5) of the Act.

Because the process mandated by the

proposed rule adequately addresses the

concerns expressed by the commenters,

this provision remains unchanged in the

interim rule.

Detention and Removal of Stowaways

Section 241.11 implements section

305 of IIRIRA, defining the

responsibilities for stowaways and costs

of detention in the new section 241 of

the Act. All stowaways are deemed to be

inadmissible under the Act and are not

entitled to a hearing on admissibility.

Those with a credible fear of

persecution may seek asylum in

accordance with 8 CFR part 208 in

special proceedings before an

immigration judge. The statute is very

specific regarding most detention and

removal responsibilities of the carriers.

Several commenters stated that the

regulations do not contain a definition

of stowaway. Since IIRIRA added a clear

definition of stowaway in section

101(a)(49) of the Act, the Department

saw no need to repeat the definition in

the regulations. One commenter

objected to the 15-day detention period

for asylum-seeking stowaways, for

which the owner of the vessel or aircraft

bringing the stowaway is obligated for

the costs of detention. As this time

frame is mandated by statute in section

241(c)(3)(A)(ii)(III) of the Act, the

Department is bound by it.

One commenter suggested that the

regulation clearly define the situations

where the Service should allow the

carrier to remove, by aircraft, a

stowaway who arrived by vessel. The

regulation at § 241.11(c)(1) has been

amended to include general

circumstances where the Service might

favorably consider such request. These

circumstances will also be more

thoroughly addressed in the Inspector’s

Field Manual.

One commenter stated that the

regulations should define how the

Service will make a determination that

the necessary travel documents for the

stowaway cannot be obtained, so as to

shift the costs of the stowaway’s

detention from the carrier to the Service,

as stated in section 241(c)(3)(A)(ii)(II) of

the Act. The Department has not had

sufficient time to consider this issue and

so will address it in the final rule.

Adjustment of Status

Some commenters objected to the

policy statement contained in the

proposed rule that amended

§ 245.1(c)(8) and indicated that, as an

exercise of discretion, the Attorney

General would not adjust the status of

arriving aliens ordered removed under

section 235(b)(1) of the Act or in

proceedings under section 240 of the

Act. Those commenters believed that

such a statement exceeded the Attorney

General’s authority by eliminating an

immigration benefit that has not been

eliminated by an act of Congress. Other

commenters suggested that the policy

statement did not go far enough and that

the policy should be expanded to

include all inadmissible aliens in

section 240 proceedings, not just

arriving aliens. In this interim rule, the

Department will maintain the position

taken in the proposed rule. This

position promotes the Department’s

objective of taking steps to preserve the

integrity of the visa issuance process

while preserving the current additional

avenue for review of discretionary

denials of adjustment applications filed

by aliens present without inspection

and admission. The Department

continues to believe this position is
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10327

consistent with the intent of Congress

when it passed IIRIRA.

In response to the commenters who

suggested this policy exceeded the

Attorney General’s statutory authority, it

is noted that section 245 of the Act

clearly and unambiguously states that

adjustment of status is a discretionary

decision, subject to such regulatory

limitations as the Attorney General may

prescribe. The same commenters stated

that aliens who depart using an advance

parole authorization and whose

applications are subsequently denied

would no longer be able to renew their

adjustment application before an

immigration judge. However, the

revisions to § 245.2(a)(5)(ii) contained in

the proposed rule preserved this

procedure.

Rescission of Adjustment of Status

The interim rule includes several

changes to 8 CFR part 246 that update

obsolete references and bring the

regulation into agreement with the

statute. References to special inquiry

officer were updated to refer to

immigration judges. References to status

of permanent residence acquired

through outdated sections of law, and

any related procedures for special report

to Congress, were eliminated. In § 246.2,

the provision that limited the rescission

authority of the district director to cases

that had been adjusted under section

245 of 249 or the Act was expanded to

include all types of adjustment, thereby

bringing the regulation into accord with

the statute. In § 246.6, the requirements

for immigration judges’ decisions were

changed to comport with the

requirements of immigration judges’

decisions found in § 240.12. The

reference to Form I–151 in § 246.9 was

removed because Form I–151 is no

longer a valid document.

Elimination of Mexican Border Visitor’s

Permit

The proposed rule eliminated the

Form I–444, Mexican Border Visitor’s

Permit, which is issued at land border

ports-of-entry along the United States/

Mexico border to Mexican nationals

traveling for more than 72 hours but less

than 30 days in duration or for more

than 25 miles from the United States/

Mexico border but within the five states

of Arizona, California, Nevada, New

Mexico, or Texas. The elimination was

proposed because the Form I–444 does

not have adequate security features to

deter counterfeiting, and provides no

tracking or enforcement benefits.

One commenter suggested that since

the elimination of the Form I–444 was

not mandated by IIRIRA and

represented a significant departure from

past procedure, it should be removed

from this rule and proposed in a

separate rulemaking. The commenter

specifically objected to the elimination

of the time and distance controls

imposed on Mexican nationals inherent

in the issuance of the Form I–444. As

stated in the proposed rule, the Service

has been unable to demonstrate that

there is any connection between the

limits on travel by persons issued Forms

I–444 and immigration violations.

Mexican nationals must undergo the

same interview process to obtain a

Border Crossing Card (BCC) or

nonimmigrant visa as any other

applicant from any other country. New

validity periods have been imposed in

recent years on the BCC, requiring

periodic renewal. A Mexican national

entering with a BCC undergoes the same

inspection process as any other

applicant for admission and must

establish eligibility as a visitor for

business or pleasure upon each entry to

the United States. Presently, Mexican

nationals who request entry at a

Mexican land border port-of-entry to

travel more than 30 days or beyond the

five-state area, and who establish

admissibility as a visitor, are issued

Form I–94, Arrival/Departure Record,

and allowed to proceed anywhere in the

United States with no additional

restrictions. Mexican BCC holders

entering the United States by air or via

the Canadian land border are also

admitted with no restrictions. The

elimination of the Form I–444 does not

expand the possible use of the BCC in

any way; it merely standardizes the

entry documentation issued. The

Department can see no reason to

continue to impose specific controls on

Mexican nationals seeking admission

only at Mexican border ports-of-entry,

and so accordingly will retain in the

interim rule the elimination of Form I–

444 in favor of more thoroughly

documenting entry with Form I–94.

Visa Waiver Pilot Program (VWPP)

The provisions relating to the VWPP

in 8 CFR part 217 were included in the

proposed rule primarily as part of the

review intended to streamline and

eliminate duplication in Department

regulations. In addition, several changes

were made to conform to new statutory

terminology and to include certain new

procedures created as a result of IIRIRA.

One commenter expressed concern that

there could be confusion in § 217.4 as to

what constitutes fraudulent or

counterfeit documents and that aliens

could be removed without the

opportunity for review by an

immigration judge. The language in this

section was not changed from what has

existed in the regulations for years.

Moreover, aliens applying under the

VWPP are, by statute, not entitled to a

hearing before an immigration judge,

except on the basis of an asylum claim.

The only change that the proposed rule

made to this provision was that the

hearing provided for VWPP asylum

claimants is now more clearly limited to

asylum issues only. In addition,

inadmissible VWPP applicants may be

temporarily refused permission to enter

the United States, but are not subject to

the formal expedited removal provisions

of section 235(b)(1) of the Act.

One commenter objected to several

aspects of the amended language in

§ 217.6 relating to carrier agreements.

Since most of the language in this

section is already contained on the

Form I–775, Visa Waiver Pilot Program

Agreement, which is signed by all

carriers participating in the VWPP,

much of this section has been removed

from the interim rule. The commenter

objected to the elimination of due

process safeguards in allowing

termination of agreements by the

Commissioner, with 5 days notice to the

carrier, for failure to meet the terms of

the agreement. This is not a new

provision. The exact language has

existed in the regulations since at least

1991 and has also been part of the

existing Form I–775 for years, and will

be retained. The definition of round

(return) trip ticket has been revised to

conform with terminology used

elsewhere in the regulation and carrier

agreement, and to provide for electronic

ticketing technology.

Miscellaneous Changes

The proposed rule contemplated

removing 8 CFR part 215, Controls of

Aliens Departing from the United States,

because it was also contained in the

Department of State regulations. The

Department has decided to retain 8 CFR

part 215.

The proposed rule contained § 240.39,

which retained material previously

found in § 242.22, and § 240.54, which

preserved the former § 242.23. These

sections have been removed from the

interim rule since the subjects are

encompassed by §§ 3.23 and 241.8,

respectively.

One commenter correctly noted that

§ 216.5(e)(3)(ii) had been amended to

allow an alien in exclusion, deportation,

or removal proceedings to file a petition

for waiver only until such time as there

is a final order of deportation or

removal. In § 216.5(e)(3), adjudication of

a waiver is based upon the alien’s claim

of having been battered or subjected to

extreme mental cruelty. The commenter

stated that there is no reason to shorten
10328 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

the period allotted for a battered woman

and child to file a battered spouse

waiver. The proposed rule change was

meant to apply generally to all aliens

filing a petition for a waiver, and was

intended to add a point of finality to the

time when the petition could be filed.

Therefore, the interim rule has been

amended to clarify the general

applicability to all petitions for waiver.

The regulation will permit filing of a

petition for waiver at any time prior to

the second anniversary of obtaining

permanent resident status and up to the

point of receiving a final order in

exclusion, deportation, or removal

proceedings, which includes any

possible Federal court review.

Several commenters were concerned

about removing language at

§ 204.2(a)(1)(iii)(A) through (C), which

dealt with commencement and

termination of proceedings, and

exemptions from the general prohibition

against approval of visa petitions filed

on the basis of marriages during

proceedings. The language was removed

as part of the Service’s streamlining

initiative because it was duplicative of

language in § 245.1(c)(8). The interim

rule does clarify that in visa petition

proceedings the burden of proof remains

on the petitioner to establish eligibility

for the exemption found at section

204(g) of the Act. In addition,

§ 204.2(a)(1)(iii) introductory text has

been amended reflecting that

§ 245.1(c)(8) has been renumbered as

§ 245.1(c)(9).

Streamlining, Updating, and

Reorganization

Several commenters expressed

concern about sections of the regulation

that were identified in the

Supplementary Information of the

proposed regulation as being revised

solely for the purpose of streamlining:

elimination of unnecessary recitation of

statutory provisions; discussion of

procedural matters; elimination of

duplication; or general updating. It is

emphasized that these streamlining

changes neither created new

requirements nor abolished any existing

ones. Similarly, several comments

concerned regulatory provisions that

were simply carried over from the

existing regulation, but relocated to new

sections in order to conform with the

general regulatory outline for the

affected sections. Although the

Department reviewed these comments,

none resulted in further amendments to

the streamlined or reorganized

paragraphs. Other commenters proposed

changes to current regulations that are

beyond the scope of this rulemaking.

These suggestions will be considered for

inclusion in separate regulations after

implementation of IIRIRA.

The Department solicited comments

on the general organization and

restructuring contained in the proposed

regulation. No comments were received

on this topic. Accordingly, the

organizational structure has not been

revised in the interim 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 the rule will not have a significant

adverse economic impact on a

substantial number of small entities

because of the following factors. This

rule affects only federal government

operations by codifying statutory

amendments to the Immigration and

Nationality Act primarily regarding the

examination, detention, and removal of

aliens from the United States. It affects

only individuals and does not impose

any reporting or compliance

requirements on small entities.

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.

Executive Order 12866

This rule is considered by the

Department of Justice to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

because it will have a significant

economic impact on the federal

government in excess of $100 million.

No economic impact is anticipated for

state and local governments. The

Service projects significant increases in

detention-related costs due to the

provisions of IIRIRA that mandate the

custody of criminal aliens who have

committed two or more crimes

involving moral turpitude, aliens

convicted of firearms offenses, and

aliens who have been convicted of an

aggravated felony. The type of crime

that will qualify as an ‘‘aggravated

felony’’ has been greatly expanded

under IIRIRA. In addition, all aliens,

even non-criminal aliens, who are

subject to a final administrative order of

removal must be held in custody until

the alien can be removed from the

United States. If the person is not

removed within 90 days he or she may

be released from custody.

The Commissioner has notified

Congress pursuant to section 303(b) of

IIRIRA that the Service lacks sufficient

space to immediately implement the

mandatory custody provisions. This

notification will delay for 1-year full

implementation of the new mandatory

custody provisions. Section 303(b) also

provides for an additional 1-year delay

in implementation of the mandatory

custody provisions upon a second

certification that space and personnel

are inadequate to comply with the

requirement. The Service estimates that

the cost to enforce the requirement to

detain all criminal aliens will be at least

$205,000,000. Of that total, personnel

costs account for $65,284,000 and

include detention and deportation

officers ($32,873,000), investigators

($25,501,000), legal proceedings

personnel ($4,968,000), and

administrative support ($1,942,000).

Non-personnel requirements are

projected to be at least $139,732,000 and

includes increases in bed space and

related alien custody requirements

($82,782,000—funds 3,600 beds @

$63.00 per day), increases in alien travel

expenses ($36,000,000—3,600 removals

@ $1,000 each), and detention vehicle

expenses ($20,950,000). The Service is

currently in the process of projecting the

costs of the IIRIRA requirement that we

detain all aliens with administratively

final orders of deportation pending their

removal.

In addition to these detention related

costs, the Service estimates that the

expenses for training employees on the

provisions of the new law and the

regulations will be $2,977,500. The cost

to the Service related to additional

forms or changes needed to current

forms is estimated to be $2,000,000

(until the final list of form requirements

is completed it is not possible to more

accurately assess this cost). Finally, the

Department believes there may be some

increases needed for immigration judges

to review credible fear determinations

made under section 235(b) of the Act.

The EOIR estimates increases in its

costs related to IIRIRA-mandated

immigration judge review of credible

fear determinations (which must be

made under stringent time frames) and

the prompt immigration judge review

that IIRIRA requires of certain expedited

removal orders entered against aliens

claiming to be, lawful permanent

residents, asylees, or refugees. Further,

EOIR projects costs associated with the

possible need for an Immigration Court

presence at certain ports-of-entry and

additional detention centers, which will

result from the above-mentioned
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10329

credible fear review and expedited

removal review process. Also, there will

be costs related to the overall need for

an increased Immigration Court

presence at existing Service detention

centers to support the processing of the

additional detainees that will result

from the implementation of this rule.

Similarly, EOIR anticipates a need for

construction of new Immigration Courts

at new detention facilities the Service

may open as a result of this rule’s

implementation.

Although there are still a number of

unknown variables which could effect

the total costs to EOIR to implement its

part of the new expedited removal

process and to respond to the increased

number of detained individuals in

proceedings under this rule, EOIR

estimates that the total annual cost for

EOIR could be as high as $25,000,000.

Of that total, the cost for hiring new

immigration judges and legal support

staff is projected to be $21,300,000. The

cost for new video and audio

teleconferencing equipment is estimated

at $3,000,000. Training costs are

expected to be approximately $400,000.

Finally, forms and other support

requirements are estimated to cost

$300,000.

Small Business Regulatory Enforcement

Fairness Act of 1996

The Department of Justice considers

this rule to be a ‘‘major’’ rule under the

Small Business Regulatory Enforcement

Fairness Act of 1996 in view of the

projected expenditures for the federal

government as discussed in the

preceding section. The Department

finds good cause to make this rule

effective on April 1, 1997, in order to

meet the statutory deadline. These rules

are essential for the implementation of

the provisions of Title III-A of IIRIRA,

which become effective on that date

pursuant to Section 309(a) of IIRIRA.

Executive Order 12612

The regulation adopted herein will

not have substantial direct effects on the

States, on the relationship between the

National Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient Federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988

This interim rule meets the applicable

standards set forth in section 3(a) and

3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

The information collection

requirements contained in this rule have

been approved by the Office of

Management and Budget under the

provisions of the Paperwork Reduction

Act. The OMB control numbers for these

collections are contained in 8 CFR

299.5, Display of control numbers.

List of Subjects

8 CFR Part 1

Administrative practice and

procedure, Immigration.

8 CFR Part 3

Administrative practice and

procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and

procedure, Authority delegations

(Government agencies), Reporting and

recordkeeping requirements.

8 CFR Part 204

Administrative practice and

procedure, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 207

Administrative practice and

procedure, Refugees, Reporting and

recordkeeping requirements.

8 CFR Part 208

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

8 CFR Part 209

Aliens, Immigration, Refugees.

8 CFR Part 211

Immigration, Passports and visas,

Reporting and recordkeeping

requirements.

8 CFR Part 212

Administrative practice and

procedure, Aliens, Immigration,

Passports and visas, Reporting and

recordkeeping requirements.

8 CFR Part 213

Immigration, Surety bonds.

8 CFR Part 214

Administrative practice and

procedure, Aliens.

8 CFR Part 216

Administrative practice and

procedure, Aliens.

8 CFR Part 217

Air carriers, Aliens, Maritime carriers,

Passports and visas.

8 CFR Part 221

Aliens, Surety bonds.

8 CFR Part 223

Aliens, Reporting and recordkeeping

requirements.

8 CFR Part 232

Aliens, Public health.

8 CFR Part 233

Administrative practice and

procedure, Air carriers, Government

contracts, Travel.

8 CFR Part 234

Air carriers, Aircraft, Airports, Aliens.

8 CFR Part 235

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

8 CFR Part 236

Administrative practice and

procedure, Aliens, Immigration.

8 CFR Part 237

Aliens.

8 CFR Part 238

Administrative practice and

procedure, Aliens.

8 CFR Part 239

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

8 CFR Part 240

Administrative practice and

procedure, Aliens, Immigration.

8 CFR Part 241

Administrative practice and

procedure, Aliens, Immigration.

8 CFR Part 242

Administrative practice and

procedure, Aliens, Immigration.

8 CFR Part 243

Administrative practice and

procedure, Aliens.

8 CFR Part 244

Administrative practice and

procedure, Aliens.

8 CFR Part 245

Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 246

Administrative practice and

procedure, Aliens, Immigration.
10330 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

8 CFR Part 248

Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 249

Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 251

Air carriers, Aliens, Crewmen,

Maritime carriers, Reporting and

recordkeeping requirements.

8 CFR Part 252

Air carriers, Airmen, Aliens,

Crewmen, Maritime carriers, Reporting

and recordkeeping requirements.

8 CFR Part 253

Air carriers, Airmen, Aliens, Maritime

carriers, Reporting and recordkeeping

requirements, Seamen.

8 CFR Part 274a

Administrative practice and

procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping

requirements.

8 CFR Part 286

Air carriers, Immigration, Reporting

and recordkeeping requirements.

8 CFR Part 287

Immigration, Law enforcement

officers.

8 CFR Part 299

Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 316

Citizenship and naturalization,

Reporting and recordkeeping

requirements.

8 CFR Part 318

Citizenship and naturalization.

8 CFR Part 329

Citizenship and naturalization,

Military Personnel, Veterans.

Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amended

as follows:

PART 1—DEFINITIONS

1. The authority citation for part 1 is

revised to read as follows:

Authority: 8 U.S.C. 1101; 8 CFR part 2.

2. Section 1.1 is amended by revising

paragraph (l), and by adding new

paragraphs (q) through (t) to read as

follows:

§ 1.1 Definitions.

* * * * *

(l) The term immigration judge means

an attorney whom the Attorney General

appoints as an administrative judge

within the Executive Office for

Immigration Review, qualified to

conduct specified classes of

proceedings, including a hearing under

section 240 of the Act. An immigration

judge shall be subject to such

supervision and shall perform such

duties as the Attorney General shall

prescribe, but shall not be employed by

the Immigration and Naturalization

Service.

* * * * *

(q) The term arriving alien means an

alien who seeks admission to or transit

through the United States, as provided

in 8 CFR part 235, at a port-of-entry, or

an alien who is interdicted in

international or United States waters

and brought into the United States by

any means, whether or not to a

designated port-of-entry, and regardless

of the means of transport. An arriving

alien remains such even if paroled

pursuant to section 212(d)(5) of the Act.

(r) The term respondent means a

person named in a Notice to Appear

issued in accordance with section 239(a)

of the Act, or in an Order to Show Cause

issued in accordance with § 242.1 of this

chapter as it existed prior to April 1,

1997.

(s) The term Service counsel means

any immigration officer assigned to

represent the Service in any proceeding

before an immigration judge or the

Board of Immigration Appeals.

(t) The term aggravated felony means

a crime (or a conspiracy or attempt to

commit a crime) described in section

101(a)(43) of the Act. This definition is

applicable to any proceeding,

application, custody determination, or

adjudication pending on or after

September 30, 1996, but shall apply

under section 276(b) of the Act only to

violations of section 276(a) of the Act

occurring on or after that date.

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

3. The authority citation for part 3

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103,

1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509,

510, 1746; sec. 2, Reorg. Plan No. 2 of 1950;

3 CFR, 1949–1953 Comp., p. 1002.

4. Section 3.1 is amended by revising

paragraphs (b)(1), (b)(2), (b)(3), (b)(7),

(b)(9), and (b)(10) to read as follows:

§ 3.1 General authorities.

* * * * *

(b) * * *

(1) Decisions of Immigration Judges in

exclusion cases, as provided in 8 CFR

part 240, Subpart D.

(2) Decisions of Immigration Judges in

deportation cases, as provided in 8 CFR

part 240, Subpart E, except that no

appeal shall lie seeking review of a

length of a period of voluntary

departure granted by an Immigration

Judge under section 244E of the Act as

it existed prior to April 1, 1997.

(3) Decisions of Immigration Judges in

removal proceedings, as provided in 8

CFR part 240, except that no appeal

shall lie seeking review of the length of

a period of voluntary departure granted

by an immigration judge under section

240B of the Act or part 240 of this

chapter.

* * * * *

(7) Determinations relating to bond,

parole, or detention of an alien as

provided in 8 CFR part 236, Subpart A

and 8 CFR part 240, Subpart E.

* * * * *

(9) Decisions of Immigration Judges in

asylum proceedings pursuant to

§ 208.2(b) of this chapter.

(10) Decisions of Immigration Judges

relating to Temporary Protected Status

as provided in 8 CFR part 244.

* * * * *

5. Section 3.2 is amended by:

a. Revising the section heading;

b. Revising paragraph (b)(2);

c. Revising paragraph (c)(2) and (c)(3),

and by

d. Revising paragraphs (d) through

(g)(1), to read as follows:

§ 3.2 Reopening or reconsideration before

the Board of Immigration Appeals.

* * * * *

(b) * * *

(2) A motion to reconsider a decision

must be filed with the Board within 30

days after the mailing of the Board

decision or on or before July 31, 1996,

whichever is later. A party may file only

one motion to reconsider any given

decision and may not seek

reconsideration of a decision denying a

previous motion to reconsider. In

removal proceedings pursuant to section

240 of the Act, an alien may file only

one motion to reconsider a decision that

the alien is removable from the United

States.

(c) * * *

(2) Except as provided in paragraph

(c)(3) of this section, a party may file

only one motion to reopen deportation

or exclusion proceedings (whether

before the Board or the Immigration

Judge) and that motion must be filed no

later than 90 days after the date on

which the final administrative decision

was rendered in the proceeding sought

to be reopened, or on or before

September 30, 1996, whichever is later.

Except as provided in paragraph (c)(3)
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10331

of this section, an alien may file only

one motion to reopen removal

proceedings (whether before the Board

or the Immigration Judge) and that

motion must be filed no later than 90

days after the date on which the final

administrative decision was rendered in

the proceeding sought to be reopened.

(3) In removal proceedings pursuant

to section 240 of the Act, the time

limitation set forth in paragraph (c)(2) of

this section shall not apply to a motion

to reopen filed pursuant to the

provisions of § 3.23(b)(4)(ii). The time

and numerical limitations set forth in

paragraph (c)(2) of this section shall not

apply to a motion to reopen

proceedings:

(i) Filed pursuant to the provisions of

§ 3.23(b)(4)(iii)(A)(1) or

§ 3.23(b)(4)(iii)(A)(2);

(ii) To apply or reapply for asylum or

withholding of deportation based on

changed circumstances arising in the

country of nationality or in the country

to which deportation has been ordered,

if such evidence is material and was not

available and could not have been

discovered or presented at the previous

hearing;

(iii) Agreed upon by all parties and

jointly filed. Notwithstanding such

agreement, the parties may contest the

issues in a reopened proceeding; or

(iv) Filed by the Service in exclusion

or deportation proceedings when the

basis of the motion is fraud in the

original proceeding or a crime that

would support termination of asylum in

accordance with § 208.22(f) of this

chapter.

* * * * *

(d) Departure, deportation, or

removal. A motion to reopen or a

motion to reconsider shall not be made

by or on behalf of a person who is the

subject of exclusion, deportation, or

removal proceedings subsequent to his

or her departure from the United States.

Any departure from the United States,

including the deportation or removal of

a person who is the subject of exclusion,

deportation, or removal proceedings,

occurring after the filing of a motion to

reopen or a motion to reconsider, shall

constitute a withdrawal of such motion.

(e) Judicial proceedings. Motions to

reopen or reconsider shall state whether

the validity of the exclusion,

deportation, or removal order has been

or is the subject of any judicial

proceeding and, if so, the nature and

date thereof, the court in which such

proceeding took place or is pending,

and its result or status. In any case in

which an exclusion, deportation, or

removal order is in effect, any motion to

reopen or reconsider such order shall

include a statement by or on behalf of

the moving party declaring whether the

subject of the order is also the subject

of any pending criminal proceeding

under the Act, and, if so, the current

status of that proceeding. If a motion to

reopen or reconsider seeks discretionary

relief, the motion shall include a

statement by or on behalf of the moving

party declaring whether the alien for

whose relief the motion is being filed is

subject to any pending criminal

prosecution and, if so, the nature and

current status of that prosecution.

(f) Stay of deportation. Except where

a motion is filed pursuant to the

provisions of §§ 3.23(b)(4)(ii) and

3.23(b)(4)(iii)(A), the filing of a motion

to reopen or a motion to reconsider shall

not stay the execution of any decision

made in the case. Execution of such

decision shall proceed unless a stay of

execution is specifically granted by the

Board, the Immigration Judge, or an

authorized officer of the Service.

(g) Filing procedures. (1) English

language, entry of appearance, and proof

of service requirements. A motion and

any submission made in conjunction

with a motion must be in English or

accompanied by a certified English

translation. If the moving party, other

than the Service, is represented, Form

EOIR–27, Notice of Entry of Appearance

as Attorney or Representative Before the

Board, must be filed with the motion. In

all cases, the motion shall include proof

of service on the opposing party of the

motion and all attachments. If the

moving party is not the Service, service

of the motion shall be made upon the

Office of the District Counsel for the

district in which the case was

completed before the Immigration

Judge.

* * * * *

6. The following sentence is added to

the end of § 3.4:

§ 3.4 Withdrawal of appeal.

* * * Departure from the United

States of a person who is the subject of

deportation or removal proceedings,

except for arriving aliens as defined in

§ 1.1(q) of this chapter, subsequent to

the taking of an appeal, but prior to a

decision thereon, shall constitute a

withdrawal of the appeal, and the initial

decision in the case shall be final to the

same extent as though no appeal had

been taken.

Subpart B—Immigration Court

7. In Part 3, the heading of Subpart B

is revised as set forth above.

8. Section 3.9 is revised to read as

follows:

§ 3.9 Chief Immigration Judge.

The Chief Immigration Judge shall be

responsible for the general supervision,

direction, and scheduling of the

Immigration Judges in the conduct of

the various programs assigned to them.

The Chief Immigration Judge shall be

assisted by Deputy Chief Immigration

Judges and Assistant Chief Immigration

Judges in the performance of his or her

duties. These shall include, but are not

limited to:

(a) Establishment of operational

policies; and

(b) Evaluation of the performance of

Immigration Courts, making appropriate

reports and inspections, and taking

corrective action where indicated.

9. Section 3.10 is revised to read as

follows:

§ 3.10 Immigration Judges.

Immigration Judges, as defined in 8

CFR part 1, shall exercise the powers

and duties in this chapter regarding the

conduct of exclusion, deportation,

removal, and asylum proceedings and

such other proceedings which the

Attorney General may assign them to

conduct.

10. Section 3.11 is revised to read as

follows:

§ 3.11 Administrative control Immigration

Courts.

An administrative control

Immigration Court is one that creates

and maintains Records of Proceedings

for Immigration Courts within an

assigned geographical area. All

documents and correspondence

pertaining to a Record of Proceeding

shall be filed with the Immigration

Court having administrative control

over that Record of Proceeding and shall

not be filed with any other Immigration

Court. A list of the administrative

control Immigration Courts with their

assigned geographical areas will be

made available to the public at any

Immigration Court.

Subpart C—Immigration Court—Rules

of Procedure

11. In part 3, the heading of Subpart

C is revised as set forth above.

12. Section 3.12 is amended by

revising the last sentence, and adding a

new sentence at the end of the section,

to read as follows:

§ 3.12 Scope of rules.

* * * Except where specifically

stated, the rules in this subpart apply to

matters before Immigration Judges,

including, but not limited to,

deportation, exclusion, removal, bond,

rescission, departure control, asylum

proceedings, and disciplinary
10332 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

proceedings under § 292.3 of this

chapter. The sole procedures for review

of credible fear determinations by

Immigration Judges are provided for in

§ 3.42.

13. Section 3.13 is revised to read as

follows:

§ 3.13 Definitions.

As used in this subpart:

Administrative control means

custodial responsibility for the Record

of Proceeding as specified in § 3.11.

Charging document means the written

instrument which initiates a proceeding

before an Immigration Judge. For

proceedings initiated prior to April 1,

1997, these documents include an Order

to Show Cause, a Notice to Applicant

for Admission Detained for Hearing

before Immigration Judge, and a Notice

of Intention to Rescind and Request for

Hearing by Alien. For proceedings

initiated after April 1, 1997, these

documents include a Notice to Appear,

a Notice of Referral to Immigration

Judge, and a Notice of Intention to

Rescind and Request for Hearing by

Alien.

Filing means the actual receipt of a

document by the appropriate

Immigration Court.

Service means physically presenting

or mailing a document to the

appropriate party or parties; except that

an Order to Show Cause or Notice of

Deportation Hearing shall be served in

person to the alien, or by certified mail

to the alien or the alien’s attorney and

a Notice to Appear or Notice of Removal

Hearing shall be served to the alien in

person, or if personal service is not

practicable, shall be served by regular

mail to the alien or the alien’s attorney

of record.

14. Section § 3.14 is amended by:

a. Revising paragraph (a), and by

b. Adding a new paragraph (c) to read

as follows:

§ 3.14 Jurisdiction and commencement of

proceedings.

(a) Jurisdiction vests, and proceedings

before an Immigration Judge commence,

when a charging document is filed with

the Immigration Court by the Service.

The charging document must include a

certificate showing service on the

opposing party pursuant to § 3.32 which

indicates the Immigration Court in

which the charging document is filed.

However, no charging document is

required to be filed with the

Immigration Court to commence bond

proceedings pursuant to §§ 3.19,

236.1(d) and 240.2(b) of this chapter.

* * * * *

(c) Immigration Judges have

jurisdiction to administer the oath of

allegiance in administrative

naturalization ceremonies conducted by

the Service in accordance with

§ 337.2(b) of this chapter.

15. Section 3.15 is amended by:

a. Revising the section heading;

b. Amending paragraph (b)

introductory text and paragraph (b)(6),

by adding the phrase ‘‘and Notice to

Appear’’ immediately after the phrase

‘‘Order to Show Cause’’;

c. Redesignating paragraph (c) as (d);

d. Adding a new paragraph (c); and by

e. Revising newly redesignated

paragraph (d), to read as follows:

§ 3.15 Contents of the order to show cause

and notice to appear and notification of

change of address.

* * * * *

(c) Contents of the Notice to Appear

for Removal Proceedings. In the Notice

to Appear for removal proceedings, the

Service shall provide the following

administrative information to the

Immigration Court. Failure to provide

any of these items shall not be

construed as affording the alien any

substantive or procedural rights.

(1) The alien’s names and any known

aliases;

(2) The alien’s address;

(3) The alien’s registration number,

with any lead alien registration number

with which the alien is associated;

(4) The alien’s alleged nationality and

citizenship; and

(5) The language that the alien

understands.

(d) Address and telephone number.

(1) If the alien’s address is not provided

on the Order to Show Cause or Notice

to Appear, or if the address on the Order

to Show Cause or Notice to Appear is

incorrect, the alien must provide to the

Immigration Court where the charging

document has been filed, within five

days of service of that document, a

written notice of an address and

telephone number at which the alien

can be contacted. The alien may satisfy

this requirement by completing and

filing Form EOIR–33.

(2) Within five days of any change of

address, the alien must provide written

notice of the change of address on Form

EOIR–33 to the Immigration Court

where the charging document has been

filed, or if venue has been changed, to

the Immigration Court to which venue

has been changed.

§ 3.16 [Amended]

16. Section 3.16(b) is amended by

revising the term ‘‘respondent/

applicant’’ to read ‘‘alien’’.

§ 3.17 [Amended]

17. Section 3.17(a) is amended in the

first sentence by revising the term

‘‘respondent/applicant’’ to read ‘‘alien’’,

and by revising the phrase ‘‘the

appropriate EOIR form’’ to read ‘‘Form

EOIR–28’’.

18. Section 3.18 is revised to read as

follows:

§ 3.18 Scheduling of cases.

(a) The Immigration Court shall be

responsible for scheduling cases and

providing notice to the government and

the alien of the time, place, and date of

hearings.

(b) In removal proceedings pursuant

to section 240 of the Act, the Service

shall provide in the Notice to Appear,

the time, place and date of the initial

removal hearing, where practicable. If

that information is not contained in the

Notice to Appear, the Immigration Court

shall be responsible for scheduling the

initial removal hearing and providing

notice to the government and the alien

of the time, place, and date of hearing.

In the case of any change or

postponement in the time and place of

such proceeding, the Immigration Court

shall provide written notice to the alien

specifying the new time and place of the

proceeding and the consequences under

section 240(b)(5) of the Act of failing,

except under exceptional circumstances

as defined in section 240(e)(1) of the

Act, to attend such proceeding. No such

notice shall be required for an alien not

in detention if the alien has failed to

provide the address required in section

239(a)(1)(F) of the Act.

§ 3.19 [Amended]

19. Section 3.19(a) is amended by

revising the reference to ‘‘part 242 of

this chapter’’ to read ‘‘8 CFR part 236’’

wherever it appears in the paragraph.

20. Section 3.19(d) is amended in the

first sentence by adding the term ‘‘or

removal’’ immediately after the word

‘‘deportation’’.

21. Section 3.19 is amended by

removing paragraph (h).

22. In § 3.20, paragraph (a) is revised

to read as follows:

§ 3.20 Change of venue.

(a) Venue shall lie at the Immigration

Court where jurisdiction vests pursuant

to § 3.14.

* * * * *

23. Section 3.23 is amended by

revising the section heading and

paragraph (b) to read as follows:

§ 3.23 Reopening or Reconsideration

before the Immigration Court.

(a) * * *

(b) Before the Immigration Court. (1)

In general. An Immigration Judge may

upon his or her own motion at any time,

or upon motion of the Service or the
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10333

alien, reopen or reconsider any case in

which he or she has made a decision,

unless jurisdiction is vested with the

Board of Immigration Appeals. Subject

to the exceptions in this paragraph and

paragraph (b)(4), a party may file only

one motion to reconsider and one

motion to reopen proceedings. A motion

to reconsider must be filed within 30

days of the date of entry of a final

administrative order of removal,

deportation, or exclusion, or on or

before July 31, 1996, whichever is later.

A motion to reopen must be filed within

90 days of the date of entry of a final

administrative order of removal,

deportation, or exclusion, or on or

before September 30, 1996, whichever is

later. A motion to reopen or to

reconsider shall not be made by or on

behalf of a person who is the subject of

removal, deportation, or exclusion

proceedings subsequent to his or her

departure from the United States. Any

departure from the United States,

including the deportation or removal of

a person who is the subject of exclusion,

deportation, or removal proceedings,

occurring after the filing of a motion to

reopen or a motion to reconsider shall

constitute a withdrawal of such motion.

The time and numerical limitations set

forth in this paragraph do not apply to

motions by the Service in removal

proceedings pursuant to section 240 of

the Act. Nor shall such limitations

apply to motions by the Service in

exclusion or deportation proceedings,

when the basis of the motion is fraud in

the original proceeding or a crime that

would support termination of asylum in

accordance with § 208.22(f) of this

chapter.

(i) Form and contents of the motion.

The motion shall be in writing and

signed by the affected party or the

attorney or representative of record, if

any. The motion and any submission

made in conjunction with it must be in

English or accompanied by a certified

English translation. Motions to reopen

or reconsider shall state whether the

validity of the exclusion, deportation, or

removal order has been or is the subject

of any judicial proceeding and, if so, the

nature and date thereof, the court in

which such proceeding took place or is

pending, and its result or status. In any

case in which an exclusion, deportation,

or removal order is in effect, any motion

to reopen or reconsider such order shall

include a statement by or on behalf of

the moving party declaring whether the

subject of the order is also the subject

of any pending criminal proceeding

under the Act, and, if so, the current

status of that proceeding.

(ii) Filing. Motions to reopen or

reconsider a decision of an Immigration

Judge must be filed with the

Immigration Court having

administrative control over the Record

of Proceeding. A motion to reopen or a

motion to reconsider shall include a

certificate showing service on the

opposing party of the motion and all

attachments. If the moving party is not

the Service, service of the motion shall

be made upon the Office of the District

Counsel for the district in which the

case was completed. If the moving

party, other than the Service, is

represented, a Form EOIR–28, Notice of

Appearance as Attorney or

Representative Before an Immigration

Judge must be filed with the motion.

The motion must be filed in duplicate

with the Immigration Court,

accompanied by a fee receipt.

(iii) Assignment to an Immigration

Judge. If the Immigration Judge is

unavailable or unable to adjudicate the

motion to reopen or reconsider, the

Chief Immigration Judge or his or her

delegate shall reassign such motion to

another Immigration Judge.

(iv) Replies to motions; decision. The

Immigration Judge may set and extend

time limits for replies to motions to

reopen or reconsider. A motion shall be

deemed unopposed unless timely

response is made. The decision to grant

or deny a motion to reopen or a motion

to reconsider is within the discretion of

the Immigration Judge.

(v) Stays. Except in cases involving in

absentia orders, the filing of a motion to

reopen or a motion to reconsider shall

not stay the execution of any decision

made in the case. Execution of such

decision shall proceed unless a stay of

execution is specifically granted by the

Immigration Judge, the Board, or an

authorized officer of the Service.

(2) Motion to reconsider. A motion to

reconsider shall state the reasons for the

motion by specifying the errors of fact

or law in the Immigration Judge’s prior

decision and shall be supported by

pertinent authority. Such motion may

not seek reconsideration of a decision

denying previous motion to reconsider.

(3) Motion to reopen. A motion to

reopen proceedings shall state the new

facts that will be proven at a hearing to

be held if the motion is granted and

shall be supported by affidavits and

other evidentiary material. Any motion

to reopen for the purpose of acting on

an application for relief must be

accompanied by the appropriate

application for relief and all supporting

documents. A motion to reopen will not

be granted unless the Immigration Judge

is satisfied that evidence sought to be

offered is material and was not available

and could not have been discovered or

presented at the former hearing. A

motion to reopen for the purpose of

providing the alien an opportunity to

apply for any form of discretionary

relief will not be granted if it appears

that the alien’s right to apply for such

relief was fully explained to him or her

by the Immigration Judge and an

opportunity to apply therefore was

afforded at the hearing, unless the relief

is sought on the basis of circumstances

that have arisen subsequent to the

hearing. Pursuant to section 240A(d)(1)

of the Act, a motion to reopen

proceedings for consideration or further

consideration of an application for relief

under section 240A(a) (cancellation of

removal for certain permanent

residents) or 240A(b) (cancellation of

removal and adjustment of status for

certain nonpermanent residents) may be

granted only if the alien demonstrates

that he or she was statutorily eligible for

such relief prior to the service of a

notice to appear, or prior to the

commission of an offense referred to in

section 212(a)(2) of the Act that renders

the alien inadmissible or removable

under sections 237(a)(2) of the Act or

(a)(4), whichever is earliest. The

Immigration Judge has discretion to

deny a motion to reopen even if the

moving party has established a prima

facie case for relief.

(4) Exceptions to filing deadlines.—(i)

Asylum. The time and numerical

limitations set forth in paragraph (b)(1)

of this section shall not apply if the

basis of the motion is to apply for relief

under section 208 or 241(b)(3) of the Act

and is based on changed country

conditions arising in the country of

nationality or the country to which

removal has been ordered, if such

evidence is material and was not

available and could not have been

discovered or presented at the previous

proceeding. The filing of a motion to

reopen under this section shall not

automatically stay the removal of the

alien. However, the alien may request a

stay and, if granted by the Immigration

Judge, the alien shall not be removed

pending disposition of the motion by

the Immigration Judge. If the original

asylum application was denied based

upon a finding that it was frivolous,

then the alien is ineligible to file either

a motion to reopen or reconsider, or for

a stay of removal.

(ii) Order entered in absentia in

asylum proceedings or removal

proceedings. An order of removal

entered in absentia in asylum

proceedings pursuant to § 208.2(b) of

this chapter or in removal proceedings

pursuant to section 240(b)(5) of the Act

may be rescinded only upon a motion

to reopen filed within 180 days after the

date of the order of removal, if the alien
10334 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

demonstrates that the failure to appear

was because of exceptional

circumstances as defined in section

240(e)(1) of the Act. An order entered in

absentia pursuant to § 208.2(b) of this

chapter or pursuant to section 240(b)(5)

may be rescinded upon a motion to

reopen filed at any time if the alien

demonstrates that he or she did not

receive notice in accordance with

sections 239(a)(1) or (2) of the Act, or

the alien demonstrates that he or she

was in Federal or state custody and the

failure to appear was through no fault of

the alien. However, in accordance with

section 240(b)(5)(B) of the Act, no

written notice of a change in time or

place of proceeding shall be required if

the alien has failed to provide the

address required under section

239(a)(1)(F) of the Act. The filing of a

motion under this paragraph shall stay

the removal of the alien pending

disposition of the motion by the

Immigration Judge. An alien may file

only one motion pursuant to this

paragraph.

(iii) Order entered in absentia in

deportation or exclusion proceedings.

(A) An order entered in absentia in

deportation proceedings may be

rescinded only upon a motion to reopen

filed:

(1) Within 180 days after the date of

the order of deportation if the alien

demonstrates that the failure to appear

was because of exceptional

circumstances beyond the control of the

alien (e.g., serious illness of the alien or

serious illness or death of an immediate

relative of the alien, but not including

less compelling circumstances); or

(2) At any time if the alien

demonstrates that he or she did not

receive notice or if the alien

demonstrates that he or she was in

federal or state custody and the failure

to appear was through no fault of the

alien.

(B) A motion to reopen exclusion

hearings on the basis that the

Immigration Judge improperly entered

an order of exclusion in absentia must

be supported by evidence that the alien

had reasonable cause for his failure to

appear.

(C) The filing of a motion to reopen

under paragraph (b)(4)(iii)(A) of this

section shall stay the deportation of the

alien pending decision on the motion

and the adjudication of any properly

filed administrative appeal.

(D) The time and numerical

limitations set forth in paragraph (b)(1)

of this section shall not apply to a

motion to reopen filed pursuant to the

provisions of paragraph (b)(4)(iii)(A) of

this section.

(iv) Jointly filed motions. The time

and numerical limitations set forth in

paragraph (b)(1) of this section shall not

apply to a motion to reopen agreed upon

by all parties and jointly filed.

24. Section 3.25 is revised to read as

follows:

§ 3.25 Form of the proceeding.

(a) Waiver of presence of the parties.

The Immigration Judge may, for good

cause, and consistent with section

240(b) of the Act, waive the presence of

the alien at a hearing when the alien is

represented or when the alien is a minor

child at least one of whose parents or

whose legal guardian is present. When

it is impracticable by reason of an

alien’s mental incompetency for the

alien to be present, the presence of the

alien may be waived provided that the

alien is represented at the hearing by an

attorney or legal representative, a near

relative, legal guardian, or friend.

(b) Stipulated request for order;

waiver of hearing. An Immigration Judge

may enter an order of deportation,

exclusion or removal stipulated to by

the alien (or the alien’s representative)

and the Service. The Immigration Judge

may enter such an order without a

hearing and in the absence of the parties

based on a review of the charging

document, the written stipulation, and

supporting documents, if any. If the

alien is unrepresented, the Immigration

Judge must determine that the alien’s

waiver is voluntary, knowing, and

intelligent. The stipulated request and

required waivers shall be signed on

behalf of the government and by the

alien and his or her attorney or

representative, if any. The attorney or

representative shall file a Notice of

Appearance in accordance with

§ 3.16(b). A stipulated order shall

constitute a conclusive determination of

the alien’s deportability or removability

from the United States. The stipulation

shall include:

(1) An admission that all factual

allegations contained in the charging

document are true and correct as

written;

(2) A concession of deportability or

inadmissibility as charged;

(3) A statement that the alien makes

no application for relief under the Act;

(4) A designation of a country for

deportation or removal under section

241(b)(2)(A)(i) of the Act;

(5) A concession to the introduction

of the written stipulation of the alien as

an exhibit to the Record of Proceeding;

(6) A statement that the alien

understands the consequences of the

stipulated request and that the alien

enters the request voluntarily,

knowingly, and intelligently;

(7) A statement that the alien will

accept a written order for his or her

deportation, exclusion or removal as a

final disposition of the proceedings; and

(8) A waiver of appeal of the written

order of deportation or removal.

(c) Telephonic or video hearings. An

Immigration Judge may conduct

hearings through video conference to

the same extent as he or she may

conduct hearings in person. An

Immigration Judge may also conduct a

hearing through a telephone conference,

but an evidentiary hearing on the merits

may only be conducted through a

telephone conference with the consent

of the alien involved after the alien has

been advised of the right to proceed in

person or, where available, through a

video conference, except that credible

fear determinations may be reviewed by

the Immigration Judge through a

telephone conference without the

consent of the alien.

25. Section 3.26 is amended by

revising paragraph (c) and adding a new

paragraph (d) to read as follows:

§ 3.26 In absentia hearings.

* * * * *

(c) In any removal proceeding before

an Immigration Judge in which the alien

fails to appear, the Immigration Judge

shall order the alien removed in

absentia if:

(1) The Service establishes by clear,

unequivocal, and convincing evidence

that the alien is removable; and

(2) The Service establishes by clear,

unequivocal, and convincing evidence

that written notice of the time and place

of proceedings and written notice of the

consequences of failure to appear were

provided to the alien.

(d) Written notice to the alien shall be

considered sufficient for purposes of

this section if it was provided at the

most recent address provided by the

alien. If the respondent fails to provide

his or her address as required under

§ 3.15(d), no written notice shall be

required for an Immigration Judge to

proceed with an in absentia hearing.

This paragraph shall not apply in the

event that the Immigration Judge waives

the appearance of an alien under § 3.25.

26. Section 3.27 is amended by

revising paragraph (c) to read as follows:

§ 3.27 Public access to hearings.

* * * * *

(c) In any proceeding before an

Immigration Judge concerning an

abused alien spouse, the hearing and the

Record of Proceeding shall be closed to

the public unless the abused spouse

agrees that the hearing and the Record

of Proceeding shall be open to the

public. In any proceeding before an
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10335

Immigration Judge concerning an

abused alien child, the hearing and the

Record of Proceeding shall be closed to

the public.

27. Section 3.30 is revised to read as

follows:

§ 3.30 Additional charges in deportation or

removal hearings.

At any time during deportation or

removal proceedings, additional or

substituted charges of deportability and/

or factual allegations may be lodged by

the Service in writing. The alien shall be

served with a copy of these additional

charges and/or allegations and the

Immigration Judge shall read them to

the alien. The Immigration Judge shall

advise the alien, if he or she is not

represented by counsel, that the alien

may be so represented. The alien may be

given a reasonable continuance to

respond to the additional factual

allegations and charges. Thereafter, the

provision of § 240.10(b) of this chapter

relating to pleading shall apply to the

additional factual allegations and

charges.

28. Section 3.35 is revised to read as

follows:

§ 3.35 Depositions and subpoenas.

(a) Depositions. If an Immigration

Judge is satisfied that a witness is not

reasonably available at the place of

hearing and that said witness’ testimony

or other evidence is essential, the

Immigration Judge may order the taking

of deposition either at his or her own

instance or upon application of a party.

Such order shall designate the official

by whom the deposition shall be taken,

may prescribe and limit the content,

scope, or manner of taking the

deposition, and may direct the

production of documentary evidence.

(b) Subpoenas issued subsequent to

commencement of proceedings. (1)

General. In any proceeding before an

Immigration Judge, other than under 8

CFR part 335, the Immigration Judge

shall have exclusive jurisdiction to issue

subpoenas requiring the attendance of

witnesses or for the production of

books, papers and other documentary

evidence, or both. An Immigration Judge

may issue a subpoena upon his or her

own volition or upon application of the

Service or the alien.

(2) Application for subpoena. A party

applying for a subpoena shall be

required, as a condition precedent to its

issuance, to state in writing or at the

proceeding, what he or she expects to

prove by such witnesses or

documentary evidence, and to show

affirmatively that he or she has made

diligent effort, without success, to

produce the same.

(3) Issuance of subpoena. Upon being

satisfied that a witness will not appear

and testify or produce documentary

evidence and that the witness’ evidence

is essential, the Immigration Judge shall

issue a subpoena. The subpoena shall

state the title of the proceeding and

shall command the person to whom it

is directed to attend and to give

testimony at a time and place specified.

The subpoena may also command the

person to whom it is directed to

produce the books, papers, or

documents specified in the subpoena.

(4) Appearance of witness. If the

witness is at a distance of more than 100

miles from the place of the proceeding,

the subpoena shall provide for the

witness’ appearance at the Immigration

Court nearest to the witness to respond

to oral or written interrogatories, unless

there is no objection by any party to the

witness’ appearance at the proceeding.

(5) Service. A subpoena issued under

this section may be served by any

person over 18 years of age not a party

to the case.

(6) Invoking aid of court. If a witness

neglects or refuses to appear and testify

as directed by the subpoena served

upon him or her in accordance with the

provisions of this section, the

Immigration Judge issuing the subpoena

shall request the United States Attorney

for the district in which the subpoena

was issued to report such neglect or

refusal to the United States District

Court and to request such court to issue

an order requiring the witness to appear

and testify and to produce the books,

papers or documents designated in the

subpoena.

29. In Subpart C, a new § 3.42 is

added to read as follows:

§ 3.42 Review of credible fear

determination.

(a) Referral. Jurisdiction for an

Immigration Judge to review an adverse

credible fear finding by an asylum

officer pursuant to section 235(b)(1)(B)

of the Act shall commence with the

filing by the Service of Form I–863,

Notice of Referral to Immigration Judge.

The Service shall also file with the

notice of referral a copy of the written

record of determination as defined in

section 235(b)(1)(B)(iii)(II) of the Act,

including a copy of the alien’s written

request for review, if any.

(b) Record of proceeding. The

Immigration Court shall create a Record

of Proceeding for a review of an adverse

credible fear determination. This record

shall not be merged with any later

proceeding pursuant to section 240 of

the Act involving the same alien.

(c) Procedures and evidence. The

Immigration Judge may receive into

evidence any oral or written statement

which is material and relevant to any

issue in the review. The testimony of

the alien shall be under oath or

affirmation administered by the

Immigration Judge. If an interpreter is

necessary, one will be provided by the

Immigration Court. The Immigration

Judge shall determine whether the

review shall be in person, or through

telephonic or video connection (where

available). The alien may consult with

a person or persons of the alien’s

choosing prior to the review.

(d) Standard of review. The

Immigration Judge shall make a de novo

determination as to whether there is a

significant possibility, taking into

account the credibility of the statements

made by the alien in support of the

alien’s claim and such other facts as are

known to the Immigration Judge, that

the alien could establish eligibility for

asylum under section 208 of the Act.

(e) Timing. The Immigration Judge

shall conclude the review to the

maximum extent practicable within 24

hours, but in no case later than 7 days

after the date the supervisory asylum

officer has approved the asylum officer’s

negative credible fear determination

issued on Form I–869, Record of

Negative Credible Fear Finding and

Request for Review.

(f) Decision. If an Immigration Judge

determines that an alien has a credible

fear of persecution, the Immigration

Judge shall vacate the order entered

pursuant to section 235(b)(1)(B)(iii)(I) of

the Act. Subsequent to the order being

vacated, the Service shall issue and file

Form I–862, Notice to Appear, with the

Immigration Court to commence

removal proceedings. The alien shall

have the opportunity to apply for

asylum in the course of removal

proceedings pursuant to section 240 of

the Act. If an Immigration Judge

determines that an alien does not have

a credible fear of persecution, the

Immigration Judge shall affirm the

asylum officer’s determination and

remand the case to the Service for

execution of the removal order entered

pursuant to section 235(b)(1)(B)(iii)(I) of

the Act. No appeal shall lie from a

review of an adverse credible fear

determination made by an Immigration

Judge.

(g) Custody. An Immigration Judge

shall have no authority to review an

alien’s custody status in the course of a

review of an adverse credible fear

determination made by the Service.
10336 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

PART 103—POWERS AND DUTIES OF

SERVICE OFFICERS; AVAILABILITY

OF SERVICE RECORDS

30. The authority citation for part 103

continues to read as follows:

Authority: 5 U.S.C. 552, 552(a); 8 U.S.C.

1101, 1103, 1201, 1252 note, 1252b, 1304,

1356; 31 U.S.C. 9701; E.O. 12356; 47 FR

14874, 15557; 3 CFR, 1982 Comp., p. 166; 8

CFR part 2.

31. In § 103.1, paragraph (g)(3)(ii) is

revised to read as follows:

§ 103.1 Delegations of authority.

* * * * *

(g) * * *

(3) * * *

(ii) Asylum officers. Asylum officers

constitute a professional corps of

officers who serve under the

supervision and direction of the

Director of International Affairs and

shall be specially trained as required in

§ 208.1(b) of this chapter. Asylum

officers are delegated the authority to

hear and adjudicate credible fear of

persecution determinations under

section 235(b)(1)(B) of the Act and

applications for asylum and for

withholding of removal, as provided

under 8 CFR part 208.

* * * * *

§ 103.5 [Amended]

32. Section 103.5 is amended by:

a. Removing paragraph (a)(1)(iii)(B);

b. Redesignating paragraphs

(a)(1)(iii)(C) through (F) as paragraphs

(a)(1)(iii)(B) through (E), respectively;

and

c. Removing paragraph (a)(5)(iii).

33. In § 103.5a, paragraph (c)(1) is

revised to read as follows:

§ 103.5a Service of notification, decisions,

and other papers by the Service.

* * * * *

(c) * * *

(1) Generally. In any proceeding

which is initiated by the Service, with

proposed adverse effect, service of the

initiating notice and of notice of any

decision by a Service officer shall be

accomplished by personal service,

except as provided in section 239 of the

Act.

* * * * *

34. In § 103.6, paragraph (a) is revised

to read as follows:

§ 103.6 Surety bonds.

(a) Posting of surety bonds.—(1)

Extension agreements; consent of surety;

collateral security. All surety bonds

posted in immigration cases shall be

executed on Form I–352, Immigration

Bond, a copy of which, and any rider

attached thereto, shall be furnished the

obligor. A district director is authorized

to approve a bond, a formal agreement

to extension of liability of surety, a

request for delivery of collateral security

to a duly appointed and undischarged

administrator or executor of the estate of

a deceased depositor, and a power of

attorney executed on Form I–312,

Designation of Attorney in Fact. All

other matters relating to bonds,

including a power of attorney not

executed on Form I–312 and a request

for delivery of collateral security to

other than the depositor or his or her

approved attorney in fact, shall be

forwarded to the regional director for

approval.

(2) Bond riders.—(i) General. Bond

riders shall be prepared on Form I–351,

Bond Riders, and attached to Form I–

352. If a condition to be included in a

bond is not on Form I–351, a rider

containing the condition shall be

executed.

* * * * *

35. Section 103.7(b)(1) is amended by:

a. Removing the entry to ‘‘Form I–

444’’, and by

b. Adding the entry for ‘‘Form EOIR–

42’’ to the listing of forms, in proper

numerical sequence, to read as follows:

§ 103.7 Fees

* * * * *

(b) * * *

(1) * * *

* * * * *

Form EOIR–42. For filing application for

cancellation of removal under section 240A

of the Act—$100.00. (A single fee of $100.00

will be charged whenever cancellation of

removal applications are filed by two or more

aliens in the same proceedings).

* * * * *

PART 204—IMMIGRANT PETITIONS

36. The authority citation for part 204

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153,

1154, 1182, 1186a, 1255; 8 CFR part 2.

37. Section 204.2 is amended by:

a. Revising paragraph (a)(1)(iii)

introductory text;

b. Removing paragraphs (a)(1)(iii)(A)

through (C); and

c. Redesignating paragraphs

(a)(1)(iii)(D) through (I) as paragraphs

(a)(1)(iii)(A) through (F) respectively, to

read as follows:

§ 204.2 Petitions for relatives, widows, and

widowers, and abused spouses and

children.

(a) * * *

(1) * * *

(iii) Marriage during proceedings—

general prohibition against approval of

visa petition. A visa petition filed on

behalf of an alien by a United States

citizen or a lawful permanent resident

spouse shall not be approved if the

marriage creating the relationship

occurred on or after November 10, 1986,

and while the alien was in exclusion,

deportation, or removal proceedings, or

judicial proceedings relating thereto.

Determination of commencement and

termination of proceedings and

exemptions shall be in accordance with

§ 245.1(c)(9) of this chapter, except that

the burden in visa petition proceedings

to establish eligibility for the exemption

in § 245.1(c)(9)(iii)(F) of this chapter

shall rest with the petitioner.

* * * * *

PART 207—ADMISSION OF

REFUGEES

38. The authority citation for part 207

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1157,

1159, 1182; 8 CFR part 2.

39. Section 207.1 is amended by

removing paragraph (e), and by revising

paragraph (a) to read as follows:

§ 207.1 Eligibility.

(a) Filing jurisdiction. Any alien who

believes he or she is a refugee as defined

in section 101(a)(42) of the Act, and is

included in a refugee group identified in

section 207(a) of the Act, may apply for

admission to the United States by filing

an application in accordance with

§ 207.2 with the Service office having

jurisdiction over the area where the

applicant is located. In those areas too

distant from a Service office, the

application may be filed at a designated

United States consular office.

* * * * *

40. Section 207.3 is revised to read as

follows:

§ 207.3 Waivers of inadmissibility.

(a) Authority. Section 207(c)(3) of the

Act sets forth grounds of inadmissibility

under section 212(a) of the Act which

are not applicable and those which may

be waived in the case of an otherwise

qualified refugee and the conditions

under which such waivers may be

approved. Officers in charge of overseas

offices are delegated authority to initiate

the necessary investigations to establish

the facts in each waiver application

pending before them and to approve or

deny such waivers.

(b) Filing requirements. The applicant

for a waiver must submit Form I–602,

Application by Refugee for Waiver of

Grounds of Inadmissibility, with the

Service office processing his or her case.

The burden is on the applicant to show

that the waiver should be granted based

upon humanitarian grounds, family
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10337

unity, or the public interest. The

applicant shall be notified in writing of

the decision, including the reasons for

denial, if the application is denied.

There is no appeal from such decision.

§ 207.8 [Amended]

41. Section 207.8 is amended in the

last sentence by revising the reference to

‘‘sections 235, 236, and 237’’ to read

‘‘sections 235, 240, and 241’’.

42. Part 208 is revised to read as

follows:

PART 208—PROCEDURES FOR

ASYLUM AND WITHHOLDING OF

REMOVAL

Subpart A—Asylum and Withholding of

Removal

Sec.

208.1 General.

208.2 Jurisdiction.

208.3 Form of application.

208.4 Filing the application.

208.5 Special duties toward aliens in

custody of the Service.

208.6 Disclosure to third parties.

208.7 Employment authorization.

208.8 Limitations on travel outside the

United States.

208.9 Procedure for interview before an

asylum officer.

208.10 Failure to appear at an interview

before an asylum officer.

208.11 Comments from the Department of

State.

208.12 Reliance on information compiled

by other sources.

208.13 Establishing asylum eligibility.

208.14 Approval, denial, or referral of

application.

208.15 Definition of ‘‘firm resettlement.’’

208.16 Withholding of removal.

208.17 Decisions.

208.18 Determining if an asylum

application is frivolous.

208.19 Admission of the asylee’s spouse

and children.

208.20 Effect on exclusion, deportation, and

removal proceedings.

208.21 Restoration of status.

208.22 Termination of asylum or

withholding of removal or deportation.

208.23—29 [Reserved]

Subpart B—Credible Fear of Persecution

208.30 Credible fear determinations

involving stowaways and applicants for

admission found inadmissible pursuant

to section 212(a)(6)(C) or 212(a)(7) of the

Act.

Authority: 8 U.S.C. 1103, 1158, 1226, 1252,

1282; 8 CFR part 2.

Subpart A—Asylum and Withholding

or Removal

§ 208.1 General.

(a) Applicability. Unless otherwise

provided in this chapter, this subpart

shall apply to all applications for

asylum under section 208 of the Act or

for withholding of deportation or

withholding of removal under section

241(b)(3) of the Act, whether before an

asylum officer or an immigration judge,

regardless of the date of filing. For

purposes of this chapter, withholding of

removal shall also mean withholding of

deportation under section 243(h) of the

Act, as it appeared prior to April 1,

1997, except as provided in § 208.16(c).

Such applications are hereinafter

referred to generically as asylum

applications. The provisions of this part

shall not affect the finality or validity of

any decision made by a district director,

an immigration judge, or the Board of

Immigration Appeals in any such case

prior to April 1, 1997. No asylum

application that was filed with a district

director, asylum officer or immigration

judge prior to April 1, 1997, may be

reopened or otherwise reconsidered

under the provisions of this part except

by motion granted in the exercise of

discretion by the Board of Immigration

Appeals, an immigration judge, or an

asylum officer for proper cause shown.

Motions to reopen or reconsider must

meet the requirements of sections

240(c)(5) and (c)(6) of the Act, and 8

CFR parts 3 and 103, where applicable.

(b) Training of asylum officers. The

Director of International Affairs shall

ensure that asylum officers receive

special training in international human

rights law, nonadversarial interview

techniques, and other relevant national

and international refugee laws and

principles. The Director of International

Affairs shall also, in cooperation with

the Department of State and other

appropriate sources, compile and

disseminate to asylum officers

information concerning the persecution

of persons in other countries on account

of race, religion, nationality,

membership in a particular social group,

or political opinion, as well as other

information relevant to asylum

determinations, and shall maintain a

documentation center with information

on human rights conditions.

§ 208.2 Jurisdiction.

(a) Office of International Affairs.

Except as provided in paragraph (b) of

this section, the Office of International

Affairs shall have initial jurisdiction

over an asylum application filed by, or

a credible fear determination pertaining

to, an alien physically present in the

United States or seeking admission at a

port-of-entry. An application that is

complete within the meaning of

§ 208.3(c)(3) shall be either adjudicated

or referred by asylum officers under this

part in accordance with § 208.14. An

application that is incomplete within

the meaning of § 208.3(c)(3) shall be

returned to the applicant. Except as

provided in § 208.16(a), an asylum

officer shall not decide whether an alien

is entitled to withholding of removal

under section 241(b)(3) of the Act.

(b) Immigration Court—(1) Certain

aliens not entitled to proceedings under

section 240 of the Act. After Form I–863,

Notice of Referral to Immigration Judge,

has been filed with the Immigration

Court, an immigration judge shall have

exclusive jurisdiction over any asylum

application filed on or after April 1,

1997, by:

(i) An alien crewmember who:

(A) Is an applicant for a landing

permit;

(B) Has been refused permission to

land under section 252 of the Act; or

(C) On or after April 1, 1997, was

granted permission to land under

section 252 of the Act, regardless of

whether the alien has remained in the

United States longer than authorized;

(ii) An alien stowaway who has been

found to have a credible fear of

persecution pursuant to the procedure

set forth in subpart B of this part;

(iii) An alien who is an applicant for

admission pursuant to the Visa Waiver

Pilot Program under section 217 of the

Act;

(iv) An alien who was admitted to the

United States pursuant to the Visa

Waiver Pilot Program under section 217

of the Act and has remained longer than

authorized or has otherwise violated his

or her immigration status;

(v) An alien who has been ordered

removed under section 235(c) of the

Act; or

(vi) An alien who is an applicant for

admission, or has been admitted, as an

alien classified under section

101(a)(15)(S) of the Act.

(2) Rules of procedure. (i) General.

Proceedings falling under the

jurisdiction of the immigration judge

pursuant to paragraph (b)(1) of this

section shall be conducted in

accordance with the same rules of

procedure as proceedings conducted

under 8 CFR part 240, except the scope

of review shall be limited to a

determination of whether the alien is

eligible for asylum or withholding of

removal and whether asylum shall be

granted in the exercise of discretion.

During such proceedings all parties are

prohibited from raising or considering

any other issues, including but not

limited to issues of admissibility,

removability, eligibility for waivers, and

eligibility for any form of relief other

than asylum or withholding of removal.

(ii) Notice of hearing procedures and

in-absentia decisions. The alien will be

provided with notice of the time and

place of the proceeding. The request for

asylum and withholding of removal
10338 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

submitted by an alien who fails to

appear for the hearing shall be denied.

The denial of asylum and withholding

of removal for failure to appear may be

reopened only upon a motion filed with

the immigration judge with jurisdiction

over the case. Only one motion to

reopen may be filed, and it must be filed

within 90 days, unless the alien

establishes that he or she did not receive

notice of the hearing date or was in

Federal or State custody on the date

directed to appear. The motion must

include documentary evidence which

demonstrates that:

(A) The alien did not receive the

notice;

(B) The alien was in Federal or State

custody and the failure to appear was

through no fault of the alien; or

(C) ‘‘Exceptional circumstances,’’ as

defined in section 240(e)(1) of the Act,

caused the failure to appear.

(iii) Relief. The filing of a motion to

reopen shall not stay removal of the

alien unless the immigration judge

grants a written request for a stay

pending disposition of the motion. An

alien who fails to appear for a

proceeding under this section shall not

be eligible for relief under section 208,

212(h), 212(i), 240A, 240B, 245, 248, or

249 for a period of 10 years after the

date of the denial.

(3) Other aliens. Immigration judges

shall have exclusive jurisdiction over

asylum applications filed by an alien

who has been served Form I–221, Order

to Show Cause; Form I–122, Notice to

Applicant for Admission Detained for a

Hearing before an Immigration Judge; or

Form I–862, Notice to Appear, after a

copy of the charging document has been

filed with the Immigration Court.

Immigration judges shall also have

jurisdiction over any asylum

applications filed prior to April 1, 1997,

by alien crewmembers who have

remained in the United States longer

than authorized, by applicants for

admission under the Visa Waiver Pilot

Program, and by aliens who have been

admitted to the United States under the

Visa Waiver Pilot Program.

§ 208.3 Form of application.

(a) An asylum applicant must file

Form I–589, Application for Asylum or

Withholding of Removal, together with

any additional supporting evidence in

accordance with the instructions on the

form. The applicant’s spouse and

children shall be listed on the

application and may be included in the

request for asylum if they are in the

United States. One additional copy of

the principal applicant’s Form I–589

must be submitted for each dependent

included in the principal’s application.

(b) An asylum application shall be

deemed to constitute at the same time

an application for withholding of

removal, unless adjudicated in

deportation or exclusion proceedings

commenced prior to April 1, 1997. In

such instances, the asylum application

shall be deemed to constitute an

application for withholding of

deportation under section 243(h) of the

Act, as that section existed prior to

April 1, 1997. Where a determination is

made that an applicant is ineligible to

apply for asylum under section 208(a)(2)

of the Act, an asylum application shall

be construed as an application for

withholding of removal.

(c) Form I–589 shall be filed under the

following conditions and shall have the

following consequences:

(1) If the application was filed on or

after January 4, 1995, information

provided in the application may be used

as a basis for the initiation of removal

proceedings, or to satisfy any burden of

proof in exclusion, deportation, or

removal proceedings;

(2) The applicant and anyone other

than a spouse, parent, son, or daughter

of the applicant who assists the

applicant in preparing the application

must sign the application under penalty

of perjury. The applicant’s signature

establishes a presumption that the

applicant is aware of the contents of the

application. A person other than a

relative specified in this paragraph who

assists the applicant in preparing the

application also must provide his or her

full mailing address;

(3) An asylum application that does

not include a response to each of the

questions contained in the Form I–589,

is unsigned, or is unaccompanied by the

required materials specified in

paragraph (a) of this section is

incomplete. The filing of an incomplete

application shall not commence the

150-day period after which the

applicant may file an application for

employment authorization in

accordance with § 208.7. An application

that is incomplete shall be returned by

mail to the applicant within 30 days of

the receipt of the application by the

Service. If the Service has not mailed

the incomplete application back to the

applicant within 30 days, it shall be

deemed complete. An application

returned to the applicant as incomplete

shall be resubmitted by the applicant

with the additional information if he or

she wishes to have the application

considered;

(4) Knowing placement of false

information on the application may

subject the person placing that

information on the application to

criminal penalties under title 18 of the

United States Code and to civil

penalties under section 274C of the Act;

and

(5) Knowingly filing a frivolous

application on or after April 1, 1997, so

long as the applicant has received the

notice required by section 208(d)(4) of

the Act, shall render the applicant

permanently ineligible for any benefits

under the Act pursuant to § 208.18.

§ 208.4 Filing the application.

Except as prohibited in paragraph (a)

of this section, asylum applications

shall be filed in accordance with

paragraph (b) of this section.

(a) Prohibitions on filing. Section

208(a)(2) of the Act prohibits certain

aliens from filing for asylum on or after

April 1, 1997, unless the alien can

demonstrate to the satisfaction of the

Attorney General that one of the

exceptions in section 208(a)(2)(D) of the

Act applies. Such prohibition applies

only to asylum applications under

section 208 of the Act and not to

applications for withholding of removal

under section 241 of the Act. If an

applicant submits an asylum

application and it appears that one or

more of the prohibitions contained in

section 208(a)(2) of the Act apply, an

asylum officer or an immigration judge

shall review the application to

determine if the application should be

rejected or denied. For the purpose of

making determinations under section

208(a)(2) of the Act, the following rules

shall apply:

(1) Authority. Only an asylum officer,

an immigration judge, or the Board of

Immigration Appeals is authorized to

make determinations regarding the

prohibitions contained in section

208(a)(2)(B) or (C) of the Act;

(2) One-year filing deadline. (i) For

purposes of section 208(a)(2)(B) of the

Act, an applicant has the burden of

proving

(A) By clear and convincing evidence

that he or she applied within one year

of the alien’s arrival in the United States

or

(B) To the satisfaction of the asylum

officer, immigration judge, or Board of

Immigration Appeals that he or she

qualifies for an exception to the oneyear deadline.

(ii) The one-year period shall be

calculated from the date of the alien’s

last arrival in the United States or April

1, 1997, whichever is later. In the case

of an application that appears to have

been filed more than a year after the

applicant arrived in the United States,

an asylum officer or immigration judge

will determine whether the applicant

qualifies under one of the exceptions to

the deadline;
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10339

(3) Prior denial of application. For

purposes of section 208(a)(2)(C) of the

Act, an asylum application has not been

denied unless denied by an immigration

judge or the Board of Immigration

Appeals;

(4) Changed circumstances. (i) The

term ‘‘changed circumstances’’ in

section 208(a)(2)(D) of the Act shall refer

to circumstances materially affecting the

applicant’s eligibility for asylum. They

may include:

(A) Changes in conditions in the

applicant’s country of nationality or, if

the person is stateless, country of last

habitual residence or

(B) Changes in objective

circumstances relating to the applicant

in the United States, including changes

in applicable U.S. law, that create a

reasonable possibility that applicant

may qualify for asylum.

(ii) The applicant shall apply for

asylum within a reasonable period given

those ‘‘changed circumstances.’’

(5) The term extraordinary

circumstances in section 208(a)(2)(D) of

the Act shall refer to events or factors

beyond the alien’s control that caused

the failure to meet the 1-year deadline.

Such circumstances shall excuse the

failure to file within the 1-year period

so long as the alien filed the application

within a reasonable period given those

circumstances. The burden of proof is

on the applicant to establish to the

satisfaction of the asylum officer or

immigration judge that the

circumstances were both beyond his or

her control and that, but for those

circumstances, he or she would have

filed within the 1-year period. These

circumstances may include:

(i) Serious illness or mental or

physical disability of significant

duration, including any effects of

persecution or violent harm suffered in

the past, during the 1-year period after

arrival;

(ii) Legal disability (e.g., the applicant

was an unaccompanied minor or

suffered from a mental impairment)

during the first year after arrival;

(iii) Ineffective assistance of counsel,

provided that:

(A) The alien files an affidavit setting

forth in detail the agreement that was

entered into with counsel with respect

to the actions to be taken and what

representations counsel did or did not

make to the respondent in this regard;

(B) The counsel whose integrity or

competence is being impugned has been

informed of the allegations leveled

against him or her and given an

opportunity to respond; and

(C) The alien indicates whether a

complaint has been filed with

appropriate disciplinary authorities

with respect to any violation of

counsel’s ethical or legal

responsibilities, and if not, why not;

(iv) The applicant maintained

Temporary Protected Status until a

reasonable period before the filing of the

asylum application; and

(v) The applicant submitted an

asylum application prior to the

expiration of the 1-year deadline, but

that application was rejected by the

Service as not properly filed, was

returned to the applicant for corrections,

and was refiled within a reasonable

period thereafter.

(b) Filing location—(1) With the

service center by mail. Except as

provided in paragraphs (b)(2), (b)(3),

(b)(4) and (b)(5) of this section, asylum

applications shall be filed directly by

mail with the service center servicing

the asylum office with jurisdiction over

the place of the applicant’s residence or,

in the case of an alien without a United

States residence, the applicant’s current

lodging or the land border port-of-entry

through which the alien seeks

admission to the United States.

(2) With the asylum office. Asylum

applications shall be filed directly with

the asylum office having jurisdiction

over the matter in the case of an alien

who has received the express consent of

the Director of Asylum to do so.

(3) With the immigration judge.

Asylum applications shall be filed

directly with the Immigration Court

having jurisdiction over the case in the

following circumstances:

(i) During exclusion, deportation, or

removal proceedings, with the

Immigration Court having jurisdiction

over the port, district office, or sector

after service and filing of the

appropriate charging document.

(ii) After completion of exclusion,

deportation, or removal proceedings,

and in conjunction with a motion to

reopen pursuant to 8 CFR part 3 where

applicable, with the Immigration Court

having jurisdiction over the prior

proceeding. Any such motion must

reasonably explain the failure to request

asylum prior to the completion of the

proceedings.

(iii) In asylum proceedings pursuant

to § 208.2(b)(1) and after the Notice of

Referral to Immigration Judge has been

served on the alien and filed with the

Immigration Court having jurisdiction

over the case.

(4) With the Board of Immigration

Appeals. In conjunction with a motion

to remand or reopen pursuant to §§ 3.2

and 3.8 of this chapter where

applicable, an initial asylum application

shall be filed with the Board of

Immigration Appeals if jurisdiction over

the proceedings is vested in the Board

of Immigration Appeals under 8 CFR

part 3. Any such motion must

reasonably explain the failure to request

asylum prior to the completion of the

proceedings.

(5) With the district director. In the

case of any alien described in

§ 208.2(b)(1) and prior to the service on

the alien of Form I–863, any asylum

application shall be submitted to the

district director having jurisdiction

pursuant to 8 CFR part 103. The district

director shall forward such asylum

application to the appropriate

Immigration Court with the Form I–863

being filed with that Immigration Court.

(c) Amending an application after

filing. Upon request of the alien and as

a matter of discretion, the asylum officer

or immigration judge having jurisdiction

may permit an asylum applicant to

amend or supplement the application,

but any delay caused by such request

shall extend the period within which

the applicant may not apply for

employment authorization in

accordance with § 208.7(a).

§ 208.5 Special duties toward aliens in

custody of the Service.

(a) General. When an alien in the

custody of the Service requests asylum

or withholding of removal or expresses

a fear of persecution or harm upon

return to his or her country of origin or

to agents thereof, the Service shall make

available the appropriate application

forms and shall provide the applicant

with the information required by section

208(d)(4) of the Act, except in the case

of an alien who is in custody pending

a credible fear of persecution

determination under section

235(b)(1)(B) of the Act. Where possible,

expedited consideration shall be given

to applications of detained aliens.

Except as provided in paragraph (c) of

this section, such alien shall not be

excluded, deported, or removed before a

decision is rendered on his or her

asylum application.

(b) Certain aliens aboard vessels. (1)

If an alien crewmember or alien

stowaway on board a vessel or other

conveyance alleges, claims, or otherwise

makes known to an immigration

inspector or other official making an

examination on the conveyance that he

or she is unable or unwilling to return

to his or her country of nationality or

last habitual residence (if not a national

of any country) because of persecution

or a fear of persecution in that country

on account of race, religion, nationality,

membership in a particular social group,

or political opinion, the alien shall be

promptly removed from the conveyance.

If the alien makes such fear known to an

official while off such conveyance, the
10340 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

alien shall not be returned to the

conveyance but shall be retained in or

transferred to the custody of the Service.

(i) An alien stowaway will be referred

to an asylum officer for a credible fear

determination under § 208.30.

(ii) An alien crewmember shall be

provided the appropriate application

forms and information required by

section 208(d)(4) of the Act and may

then have 10 days within which to

submit an asylum application to the

district director having jurisdiction over

the port of entry. The district director,

pursuant to § 208.4(b), shall serve Form

I–863 on the alien and immediately

forward any such application to the

appropriate Immigration Court with a

copy of the Form I–863 being filed with

that court.

(2) Pending adjudication of the

application, and, in the case of a

stowaway the credible fear

determination and any review thereof,

the alien may be detained by the Service

or otherwise paroled in accordance with

§ 212.5 of this chapter. However,

pending the credible fear determination,

parole of an alien stowaway may be

permitted only when the Attorney

General determines, in the exercise of

discretion, that parole is required to

meet a medical emergency or is

necessary for a legitimate law

enforcement objective.

(c) Exception to prohibition on

removal. A motion to reopen or an order

to remand accompanied by an asylum

application pursuant to § 208.4(b)(3)(iii)

shall not stay execution of a final

exclusion, deportation, or removal order

unless such stay is specifically granted

by the Board of Immigration Appeals or

the immigration judge having

jurisdiction over the motion.

§ 208.6 Disclosure to third parties.

(a) Information contained in or

pertaining to any asylum application

shall not be disclosed without the

written consent of the applicant, except

as permitted by this section or at the

discretion of the Attorney General.

(b) The confidentiality of other

records kept by the Service that indicate

that a specific alien has applied for

asylum shall also be protected from

disclosure. The Service will coordinate

with the Department of State to ensure

that the confidentiality of these records

is maintained if they are transmitted to

Department of State offices in other

countries.

(c) This section shall not apply to any

disclosure to:

(1) Any United States Government

official or contractor having a need to

examine information in connection

with:

(i) The adjudication of asylum

applications;

(ii) The defense of any legal action

arising from the adjudication of or

failure to adjudicate the asylum

application;

(iii) The defense of any legal action of

which the asylum application is a part;

or

(iv) Any United States Government

investigation concerning any criminal or

civil matter; or

(2) Any Federal, state, or local court

in the United States considering any

legal action:

(i) Arising from the adjudication of or

failure to adjudicate the asylum

application; or

(ii) Arising from the proceedings of

which the asylum application is a part.

§ 208.7 Employment authorization.

(a) Application and approval. (1)

Subject to the restrictions contained in

sections 208(d) and 236(a) of the Act, an

applicant for asylum who is not an

aggravated felon shall be eligible

pursuant to §§ 274a.12(c)(8) and

274a.13(a) of this chapter to submit a

Form I–765, Application for

Employment Authorization. Except in

the case of an alien whose asylum

application has been recommended for

approval, or in the case of an alien who

filed an asylum application prior to

January 4, 1995, the application shall be

submitted no earlier than 150 days after

the date on which a complete asylum

application submitted in accordance

with §§ 208.3 and 208.4 has been

received. In the case of an applicant

whose asylum application has been

recommended for approval, the

applicant may apply for employment

authorization when he or she receives

notice of the recommended approval. If

an asylum application has been

returned as incomplete in accordance

with § 208.3(c)(3), the 150-day period

will commence upon receipt by the

Service of a complete asylum

application. An applicant whose asylum

application has been denied by an

asylum officer or by an immigration

judge within the 150-day period shall

not be eligible to apply for employment

authorization. If an asylum application

is denied prior to a decision on the

application for employment

authorization, the application for

employment authorization shall be

denied. If the asylum application is not

so denied, the Service shall have 30

days from the date of filing of the Form

I–765 to grant or deny that application,

except that no employment

authorization shall be issued to an

asylum applicant prior to the expiration

of the 180-day period following the

filing of the asylum application filed on

or after April 1, 1997.

(2) The time periods within which the

alien may not apply for employment

authorization and within which the

Service must respond to any such

application and within which the

asylum application must be adjudicated

pursuant to section 208(d)(5)(A)(iii) of

the Act shall begin when the alien has

filed a complete asylum application in

accordance with §§ 208.3 and 208.4.

Any delay requested or caused by the

applicant shall not be counted as part of

these time periods. Such time periods

also shall be extended by the equivalent

of the time between issuance of a

request for evidence under § 103.2(b)(8)

of this chapter and the receipt of the

applicant’s response to such request.

(3) The provisions of paragraphs (a)(1)

and (a)(2) of this section apply to

applications for asylum filed on or after

January 4, 1995.

(4) Employment authorization

pursuant to § 274a.12(c)(8) of this

chapter may not be granted to an alien

who fails to appear for a scheduled

interview before an asylum officer or a

hearing before an immigration judge,

unless the applicant demonstrates that

the failure to appear was the result of

exceptional circumstances.

(b) Renewal and termination.

Employment authorization shall be

renewable, in increments to be

determined by the Commissioner, for

the continuous period of time necessary

for the asylum officer or immigration

judge to decide the asylum application

and, if necessary, for completion of any

administrative or judicial review.

(1) If the asylum application is denied

by the asylum officer, the employment

authorization shall terminate at the

expiration of the employment

authorization document or 60 days after

the denial of asylum, whichever is

longer.

(2) If the application is denied by the

immigration judge, the Board of

Immigration Appeals, or a Federal court,

the employment authorization

terminates upon the expiration of the

employment authorization document,

unless the applicant has filed an

appropriate request for administrative or

judicial review.

(c) Supporting evidence for renewal of

employment authorization. In order for

employment authorization to be

renewed under this section, the alien

must provide the Service (in accordance

with the instructions on or attached to

the employment authorization

application) with a Form I–765, the

required fee (unless waived in

accordance with § 103.7(c) of this

chapter), and (if applicable) proof that
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10341

he or she has continued to pursue his

or her asylum application before an

immigration judge or sought

administrative or judicial review. For

purposes of employment authorization,

pursuit of an asylum application is

established by presenting to the Service

one of the following, depending on the

stage of the alien’s immigration

proceedings:

(1) If the alien’s case is pending in

proceedings before the immigration

judge, and the alien wishes to continue

to pursue his or her asylum application,

a copy of any asylum denial, referral

notice, or charging document placing

the alien in such proceedings;

(2) If the immigration judge has

denied asylum, a copy of the document

issued by the Board of Immigration

Appeals to show that a timely appeal

has been filed from a denial of the

asylum application by the immigration

judge; or

(3) If the Board of Immigration

Appeals has dismissed the alien’s

appeal of a denial of asylum, or

sustained an appeal by the Service of a

grant of asylum, a copy of the petition

for judicial review or for habeas corpus

pursuant to section 242 of the Act, date

stamped by the appropriate court.

(d) In order for employment

authorization to be renewed before its

expiration, the application for renewal

must be received by the Service 90 days

prior to expiration of the employment

authorization.

§ 208.8 Limitations on travel outside the

United States.

(a) An applicant who leaves the

United States without first obtaining

advance parole under § 212.5(e) of this

chapter shall be presumed to have

abandoned his or her application under

this section.

(b) An applicant who leaves the

United States pursuant to advance

parole under § 212.5(e) of this chapter

and returns to the country of claimed

persecution shall be presumed to have

abandoned his or her application,

unless the applicant is able to establish

compelling reasons for such return.

§ 208.9 Procedure for interview before an

asylum officer.

(a) The Service shall adjudicate the

claim of each asylum applicant whose

application is complete within the

meaning of § 208.3(c)(3) and is within

the jurisdiction of the Service.

(b) The asylum officer shall conduct

the interview in a nonadversarial

manner and, except at the request of the

applicant, separate and apart from the

general public. The purpose of the

interview shall be to elicit all relevant

and useful information bearing on the

applicant’s eligibility for asylum. At the

time of the interview, the applicant

must provide complete information

regarding his or her identity, including

name, date and place of birth, and

nationality, and may be required to

register this identity electronically or

through any other means designated by

the Attorney General. The applicant

may have counsel or a representative

present, may present witnesses, and

may submit affidavits of witnesses and

other evidence.

(c) The asylum officer shall have

authority to administer oaths, verify the

identity of the applicant (including

through the use of electronic means),

verify the identity of any interpreter,

present and receive evidence, and

question the applicant and any

witnesses.

(d) Upon completion of the interview,

the applicant or the applicant’s

representative shall have an opportunity

to make a statement or comment on the

evidence presented. The asylum officer

may, in his or her discretion, limit the

length of such statement or comment

and may require its submission in

writing. Upon completion of the

interview, the applicant shall be

informed that he or she must appear in

person to receive and to acknowledge

receipt of the decision of the asylum

officer and any other accompanying

material at a time and place designated

by the asylum officer, except as

otherwise provided by the asylum

officer. An applicant’s failure to appear

to receive and acknowledge receipt of

the decision shall be treated as delay

caused by the applicant for purposes of

§ 208.7(a)(3) and shall extend the period

within which the applicant may not

apply for employment authorization by

the number of days until the applicant

does appear to receive and acknowledge

receipt of the decision or until the

applicant appears before an immigration

judge in response to the issuance of a

charging document under § 208.14(b).

(e) The asylum officer shall consider

evidence submitted by the applicant

together with his or her asylum

application, as well as any evidence

submitted by the applicant before or at

the interview. As a matter of discretion,

the asylum officer may grant the

applicant a brief extension of time

following an interview during which the

applicant may submit additional

evidence. Any such extension shall

extend by an equivalent time the

periods specified by § 208.7 for the

filing and adjudication of any

employment authorization application.

(f) The asylum application, all

supporting information provided by the

applicant, any comments submitted by

the Department of State or by the

Service, and any other information

specific to the applicant’s case and

considered by the asylum officer shall

comprise the record.

(g) An applicant unable to proceed

with the interview in English must

provide, at no expense to the Service, a

competent interpreter fluent in both

English and the applicant’s native

language or any other language in which

the applicant is fluent. The interpreter

must be at least 18 years of age. Neither

the applicant’s attorney or

representative of record, a witness

testifying on the applicant’s behalf, nor

a representative or employee of the

applicant’s country of nationality, or if

stateless, country of last habitual

residence, may serve as the applicant’s

interpreter. Failure without good cause

to comply with this paragraph may be

considered a failure to appear for the

interview for purposes of § 208.10.

§ 208.10 Failure to appear at an interview

before an asylum officer.

Failure to appear for a scheduled

interview without prior authorization

may result in dismissal of the

application or waiver of the right to an

interview. Failure to appear shall be

excused if the notice of the interview

was not mailed to the applicant’s

current address and such address had

been provided to the Office of

International Affairs by the applicant

prior to the date of mailing in

accordance with section 265 of the Act

and regulations promulgated

thereunder, unless the asylum officer

determines that the applicant received

reasonable notice of the interview.

Failure to appear will be excused if the

applicant demonstrates that such failure

was the result of exceptional

circumstances.

§ 208.11 Comments from the Department

of State.

(a) The Service shall forward to the

Department of State a copy of each

completed application it receives. At its

option, the Department of State may

provide detailed country conditions

information relevant to eligibility for

asylum or withholding of removal.

(b) At its option, the Department of

State may also provide:

(1) An assessment of the accuracy of

the applicant’s assertions about

conditions in his or her country of

nationality or habitual residence and his

or her particular situation;

(2) Information about whether persons

who are similarly situated to the

applicant are persecuted in his or her

country of nationality or habitual
10342 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

residence and the frequency of such

persecution; or

(3) Such other information as it deems

relevant.

(c) Asylum officers and immigration

judges may request specific comments

from the Department of State regarding

individual cases or types of claims

under consideration, or such other

information as they deem appropriate.

(d) Any such comments received

pursuant to paragraphs (b) and (c) of

this section shall be made part of the

record. Unless the comments are

classified under the applicable

Executive Order, the applicant shall be

provided an opportunity to review and

respond to such comments prior to the

issuance of any decision to deny the

application.

§ 208.12 Reliance on information compiled

by other sources.

(a) In deciding an asylum application,

or whether the alien has a credible fear

of persecution pursuant to section

235(b)(1)(B) of the Act, the asylum

officer may rely on material provided by

the Department of State, the Office of

International Affairs, other Service

offices, or other credible sources, such

as international organizations, private

voluntary agencies, news organizations,

or academic institutions.

(b) Nothing in this part shall be

construed to entitle the applicant to

conduct discovery directed toward the

records, officers, agents, or employees of

the Service, the Department of Justice,

or the Department of State.

§ 208.13 Establishing asylum eligibility.

(a) Burden of proof. The burden of

proof is on the applicant for asylum to

establish that he or she is a refugee as

defined in section 101(a)(42) of the Act.

The testimony of the applicant, if

credible, may be sufficient to sustain the

burden of proof without corroboration.

The fact that the applicant previously

established a credible fear of

persecution for purposes of section

235(b)(1)(B) of the Act does not relieve

the alien of the additional burden of

establishing eligibility for asylum.

(b) Persecution. The applicant may

qualify as a refugee either because he or

she has suffered past persecution or

because he or she has a well-founded

fear of future persecution.

(1) Past persecution. An applicant

shall be found to be a refugee on the

basis of past persecution if he or she can

establish that he or she has suffered

persecution in the past in his or her

country of nationality or last habitual

residence on account of race, religion,

nationality, membership in a particular

social group, or political opinion, and

that he or she is unable or unwilling to

return to or avail himself or herself of

the protection of that country owing to

such persecution.

(i) If it is determined that the

applicant has established past

persecution, he or she shall be

presumed also to have a well-founded

fear of persecution unless a

preponderance of the evidence

establishes that since the time the

persecution occurred conditions in the

applicant’s country of nationality or last

habitual residence have changed to such

an extent that the applicant no longer

has a well-founded fear of being

persecuted if he or she were to return.

(ii) An application for asylum shall be

denied if the applicant establishes past

persecution under this paragraph but it

is also determined that he or she does

not have a well-founded fear of future

persecution under paragraph (b)(2) of

this section, unless it is determined that

the applicant has demonstrated

compelling reasons for being unwilling

to return to his or her country of

nationality or last habitual residence

arising out of the severity of the past

persecution. If the applicant

demonstrates such compelling reasons,

he or she may be granted asylum unless

such a grant is barred by paragraph (c)

of this section .

(2) Well-founded fear of persecution.

An applicant shall be found to have a

well-founded fear of persecution if he or

she can establish first, that he or she has

a fear of persecution in his or her

country of nationality or last habitual

residence on account of race, religion,

nationality, membership in a particular

social group, or political opinion;

second, that there is a reasonable

possibility of suffering such persecution

if he or she were to return to that

country; and third, that he or she is

unable or unwilling to return to or avail

himself or herself of the protection of

that country because of such fear. In

evaluating whether the applicant has

sustained his or her burden of proving

that he or she has a well-founded fear

of persecution, the asylum officer or

immigration judge shall not require the

applicant to provide evidence that he or

she would be singled out individually

for persecution if:

(i) The applicant establishes that there

is a pattern or practice in his or her

country of nationality or last habitual

residence of persecution of a group of

persons similarly situated to the

applicant on account of race, religion,

nationality, membership in a particular

social group, or political opinion; and

(ii) The applicant establishes his or

her own inclusion in and identification

with such group of persons such that his

or her fear of persecution upon return is

reasonable.

(c) Mandatory denials. (1)

Applications filed on or after April 1,

1997. For applications filed on or after

April 1, 1997, an applicant shall not

qualify for asylum if section 208(a)(2) or

208(b)(2) of the Act applies to the

applicant. If the applicant is found to be

ineligible for asylum under either

section 208(a)(2) or 208(b)(2) of the Act,

the applicant shall be considered for

eligibility for withholding of removal

under section 241(b)(3) of the Act.

(2) Applications filed before April 1,

1997. (i) An immigration judge or

asylum officer shall not grant asylum to

any applicant who filed his or her

application before April 1, 1997, if the

alien:

(A) Having been convicted by a final

judgment of a particularly serious crime

in the United States, constitutes a

danger to the community;

(B) Has been firmly resettled within

the meaning of § 208.15;

(C) Can reasonably be regarded as a

danger to the security of the United

States;

(D) Has been convicted of an

aggravated felony, as defined in section

101(a)(43) of the Act; or

(E) Ordered, incited, assisted, or

otherwise participated in the

persecution of any person on account of

race, religion, nationality, membership

in a particular social group, or political

opinion.

(ii) If the evidence indicates that one

of the above grounds apply to the

applicant, he or she shall have the

burden of proving by a preponderance

of the evidence that he or she did not

so act.

(d) Discretionary denial. An asylum

application may be denied in the

discretion of the Attorney General if the

alien can be removed to a third country

which has offered resettlement and in

which the alien would not face harm or

persecution.

§ 208.14 Approval, denial, or referral of

application.

(a) By an immigration judge. Unless

otherwise prohibited in § 208.13(c), an

immigration judge may grant or deny

asylum in the exercise of discretion to

an applicant who qualifies as a refugee

under section 101(a)(42) of the Act.

(b) By an asylum officer. Unless

otherwise prohibited in § 208.13(c):

(1) An asylum officer may grant

asylum in the exercise of discretion to

an applicant who qualifies as a refugee

under section 101(a)(42) of the Act.

(2) If the alien appears to be

deportable, excludable or removable

under section 240 of the Act, the asylum
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10343

officer shall either grant asylum or refer

the application to an immigration judge

for adjudication in deportation,

exclusion, or removal proceedings. An

asylum officer may refer such an

application after an interview

conducted in accordance with § 208.9 or

if, in accordance with § 208.10, the

applicant is deemed to have waived his

or her right to an interview.

(3) If the applicant is maintaining

valid nonimmigrant status at the time

the application is decided, the asylum

officer may grant or deny asylum,

except in the case of an applicant

described in § 208.2(b)(1).

(c) Applicability of § 103.2(b) of this

chapter. No application for asylum or

withholding of deportation shall be

subject to denial pursuant to § 103.2(b)

of this chapter.

(d) Duration. If the alien’s asylum

application is granted, the grant will be

effective for an indefinite period, subject

to termination as provided in § 208.22.

(e) Effect of denial of principal’s

application on separate applications by

dependents. The denial of an asylum

application filed by a principal

applicant for asylum shall also result in

the denial of asylum status to any

dependents of that principal applicant

who are included in that same

application. Such denial shall not

preclude a grant of asylum for an

otherwise eligible dependent who has

filed a separate asylum application, nor

shall such denial result in an otherwise

eligible dependent becoming ineligible

to apply for asylum due to the

provisions of section 208(a)(2)(C) of the

Act.

§ 208.15 Definition of ‘‘firm resettlement.’’

An alien is considered to be firmly

resettled if, prior to arrival in the United

States, he or she entered into another

nation with, or while in that nation

received, an offer of permanent resident

status, citizenship, or some other type of

permanent resettlement unless he or she

establishes:

(a) That his or her entry into that

nation was a necessary consequence of

his or her flight from persecution, that

he or she remained in that nation only

as long as was necessary to arrange

onward travel, and that he or she did

not establish significant ties in that

nation; or

(b) That the conditions of his or her

residence in that nation were so

substantially and consciously restricted

by the authority of the country of refuge

that he or she was not in fact resettled.

In making his or her determination, the

Asylum Officer or Immigration Judge

shall consider the conditions under

which other residents of the country

live, the type of housing made available

to the refugee, whether permanent or

temporary, the types and extent of

employment available to the refugee,

and the extent to which the refugee

received permission to hold property

and to enjoy other rights and privileges,

such as travel documentation including

a right of entry or reentry, education,

public relief, or naturalization,

ordinarily available to others resident in

the country.

§ 208.16 Withholding of removal.

(a) Consideration of application for

withholding of removal. An asylum

officer shall not decide whether the

exclusion, deportation, or removal of an

alien to a country where the alien’s life

or freedom would be threatened must be

withheld, except in the case of an alien

who is otherwise eligible for asylum but

is precluded from being granted such

status due solely to section 207(a)(5) of

the Act. In exclusion, deportation, or

removal proceedings, an immigration

judge may adjudicate both an asylum

claim and a request for withholding of

removal whether or not asylum is

granted.

(b) Eligibility for withholding of

removal; burden of proof. The burden of

proof is on the applicant for

withholding of removal to establish that

his or her life or freedom would be

threatened in the proposed country of

removal on account of race, religion,

nationality, membership in a particular

social group, or political opinion. The

testimony of the applicant, if credible,

may be sufficient to sustain the burden

of proof without corroboration. The

evidence shall be evaluated as follows:

(1) The applicant’s life or freedom

shall be found to be threatened if it is

more likely than not that he or she

would be persecuted on account of race,

religion, nationality, membership in a

particular social group, or political

opinion.

(2) If the applicant is determined to

have suffered persecution in the past

such that his or her life or freedom was

threatened in the proposed country of

removal on account of race, religion,

nationality, membership in a particular

social group, or political opinion, it

shall be presumed that his or her life or

freedom would be threatened on return

to that country unless a preponderance

of the evidence establishes that

conditions in the country have changed

to such an extent that it is no longer

more likely than not that the applicant

would be so persecuted there.

(3) In evaluating whether the

applicant has sustained the burden of

proving that his or her life or freedom

would be threatened in a particular

country on account of race, religion,

nationality, membership in a particular

social group, or political opinion, the

asylum officer or immigration judge

shall not require the applicant to

provide evidence that he or she would

be singled out individually for such

persecution if:

(i) The applicant establishes that there

is a pattern or practice in the country of

proposed removal of persecution of a

group of persons similarly situated to

the applicant on account of race,

religion, nationality, membership in a

particular social group, or political

opinion; and

(ii) The applicant establishes his or

her own inclusion in and identification

with such group of persons such that it

is more likely than not that his or her

life or freedom would be threatened

upon return.

(c) Approval or denial of application.

(1) General. Subject to paragraphs (c)(2)

and (c)(3) of this section, an application

for withholding of deportation or

removal to a country of proposed

removal shall be granted if the

applicant’s eligibility for withholding is

established pursuant to paragraph (b) of

this section.

(2) Mandatory denials. Except as

provided in paragraph (c)(3) of this

section, an application for withholding

of removal shall be denied if the

applicant falls within section

241(b)(3)(B) of the Act or, for

applications for withholding of

deportation adjudicated in proceedings

commenced prior to April 1, 1997,

within section 243(h)(2) of the Act as it

appeared prior to that date. For

purposes of section 241(b)(3)(B)(ii) of

the Act, or section 243(h)(2)(B) of the

Act as it appeared prior to April 1, 1997,

an alien who has been convicted of a

particularly serious crime shall be

considered to constitute a danger to the

community. If the evidence indicates

the applicability of one or more of the

grounds for denial enumerated in the

Act, the applicant shall have the burden

of proving by a preponderance of the

evidence that such grounds do not

apply.

(3) Exception to the prohibition on

withholding of deportation in certain

cases. Section 243(h)(3) of the Act, as

added by section 413 of Public Law

104–132, shall apply only to

applications adjudicated in proceedings

commenced before April 1, 1997, and in

which final action had not been taken

before April 24, 1996. The discretion

permitted by that section to override

section 243(h)(2) of the Act shall be

exercised only in the case of an

applicant convicted of an aggravated

felony (or felonies) where he or she was
10344 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

sentenced to an aggregate term of

imprisonment of less than 5 years and

the immigration judge determines on an

individual basis that the crime (or

crimes) of which the applicant was

convicted does not constitute a

particularly serious crime. Nevertheless,

it shall be presumed that an alien

convicted of an aggravated felony has

been convicted of a particularly serious

crime. Except in the cases specified in

this paragraph, the grounds for denial of

withholding of deportation in section

243(h)(2) of the Act as it appeared prior

to April 1, 1997, shall be deemed to

comply with the 1967 Protocol Relating

to the Status of Refugees.

(d) Reconsideration of discretionary

denial of asylum. In the event that an

applicant is denied asylum solely in the

exercise of discretion, and the applicant

is subsequently granted withholding of

deportation or removal under this

section, thereby effectively precluding

admission of the applicant’s spouse or

minor children following to join him or

her, the denial of asylum shall be

reconsidered. Factors to be considered

will include the reasons for the denial

and reasonable alternatives available to

the applicant such as reunification with

his or her spouse or minor children in

a third country.

§ 208.17 Decisions.

The decision of an asylum officer to

grant or to deny asylum or withholding

of removal, or to refer an asylum

application in accordance with

§ 208.14(b), shall be communicated in

writing to the applicant. Notices of

decisions to grant or deny asylum, or to

refer an application, by asylum officers

shall generally be served in person

unless, in the discretion of the asylum

office director, routine service by mail is

appropriate. A letter communicating

denial of the application shall state the

basis for denial of the asylum

application. The letter also shall contain

an assessment of the applicant’s

credibility, unless the denial is the

result of the applicant’s conviction of an

aggravated felony. Pursuant to

§ 208.9(d), an applicant must appear in

person to receive and to acknowledge

receipt of the decision.

§ 208.18 Determining if an asylum

application is frivolous.

For applications filed on or after April

1, 1997, an applicant is subject to the

provisions of section 208(d)(6) of the

Act only if a final order by an

immigration judge or the Board of

Immigration Appeals specifically finds

that the alien knowingly filed a

frivolous asylum application. For

purposes of this section, an asylum

application is frivolous if any of its

material elements is deliberately

fabricated. Such finding shall only be

made if the immigration judge or the

Board is satisfied that the applicant,

during the course of the proceedings,

has had sufficient opportunity to

account for any discrepancies or

implausible aspects of the claim.

§ 208.19 Admission of the asylee’s spouse

and children.

(a) Eligibility. A spouse, as defined in

section 101(a)(35) of the Act, 8 U.S.C.

1101(a)(35), or child, as defined in

section 101(b)(1)(A), (B), (C), (D), (E), or

(F) of the Act, also may be granted

asylum if accompanying or following to

join the principal alien who was granted

asylum, unless it is determined that:

(1) The spouse or child ordered,

incited, assisted, or otherwise

participated in the persecution of any

persons on account of race, religion,

nationality, membership in a particular

social group, or political opinion;

(2) The spouse or child, having been

convicted by a final judgment of a

particularly serious crime in the United

States, constitutes a danger to the

community of the United States;

(3) The spouse or child has been

convicted of an aggravated felony, as

defined in section 101(a)(43) of the Act;

or

(4) There are reasonable grounds for

regarding the spouse or child a danger

to the security of the United States.

(b) Relationship. The relationship of

spouse and child as defined in section

101(b)(1) of the Act must have existed

at the time the principal alien’s asylum

application was approved, except for

children born to or legally adopted by

the principal alien and spouse after

approval of the principal alien’s asylum

application.

(c) Spouse or child in the United

States. When a spouse or child of an

alien granted asylum is in the United

States but was not included in the

principal alien’s application, the

principal alien may request asylum for

the spouse or child by filing Form I–730

with the District Director having

jurisdiction over his only place of

residence, regardless of the status of that

spouse or child in the United States.

(d) Spouse or child outside the United

States. When a spouse or child of an

alien granted asylum is outside the

United States, the principal alien may

request asylum for the spouse or child

by filing form I–730 with the District

Director, setting forth the full name,

relationship, date and place of birth,

and current location of each such

person. Upon approval of the request,

the District Director shall notify the

Department of State, which will send an

authorization cable to the American

Embassy or Consulate having

jurisdiction over the area in which the

asylee’s spouse or child is located.

(e) Denial. If the spouse or child is

found to be ineligible for the status

accorded under section 208(c) of the

Act, a written notice stating the basis for

denial shall be forwarded to the

principal alien. No appeal shall lie from

this decision.

(f) Burden of proof. To establish the

claim of relationship of spouse or child

as defined in section 101(b)(1) of the

Act, evidence must be submitted with

the request as set forth in part 204 of

this chapter. Where possible this will

consist of the documents specified in 8

CFR 204.2(c) (2) and (3). The burden of

proof is on the principal alien to

establish by a preponderance of the

evidence that any person on whose

behalf he or she is making a request

under this section is an eligible spouse

or child.

(g) Duration. The spouse or child

qualifying under section 208(c) of the

Act shall be granted asylum for an

indefinite period unless the principal’s

status is revoked.

§ 208.20 Effect on exclusion, deportation,

and removal proceedings.

(a) An alien who has been granted

asylum may not be deported or removed

unless his or her asylum status is

terminated pursuant to § 208.22. An

alien in exclusion, deportation, or

removal proceedings who is granted

withholding of removal or deportation

may not be deported or removed to the

country to which his or her deportation

or removal is ordered withheld unless

the withholding order is terminated

pursuant to § 208.22.

(b) When an alien’s asylum status or

withholding of removal or deportation

is terminated under this chapter, the

Service shall initiate removal

proceedings under section 235 or 240 of

the Act, as appropriate, if the alien is

not already in exclusion, deportation, or

removal proceedings. Removal

proceedings may also be in conjunction

with a termination hearing scheduled

under § 208.22(e).

§ 208.21 Restoration of status.

An alien who was maintaining his or

her nonimmigrant status at the time of

filing an asylum application and has

such application denied may continue

in or be restored to that status, if it has

not expired.

§ 208.22 Termination of asylum or

withholding of removal or deportation.

(a) Termination of asylum by the

Service. Except as provided in
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10345

paragraph (e) of this section, an asylum

officer may terminate a grant of asylum

made under the jurisdiction of an

asylum officer or a district director if

following an interview, the asylum

officer determines that:

(1) There is a showing of fraud in the

alien’s application such that he or she

was not eligible for asylum at the time

it was granted;

(2) As to applications filed on or after

April 1, 1997, one or more of the

conditions described in section

208(c)(2) of the Act exist; or

(3) As to applications filed before

April 1, 1997, the alien no longer has a

well-founded fear of persecution upon

return due to a change of country

conditions in the alien’s country of

nationality or habitual residence or the

alien has committed any act that would

have been grounds for denial of asylum

under § 208.13(c)(2).

(b) Termination of withholding of

deportation or removal by the Service.

Except as provided in paragraph (e) of

this section, an asylum officer may

terminate a grant of withholding of

deportation or removal made under the

jurisdiction of an asylum officer or a

district director if the asylum officer

determines, following an interview,

that:

(1) The alien is no longer entitled to

withholding of deportation or removal

due to a change of conditions in the

country to which removal was withheld;

(2) There is a showing of fraud in the

alien’s application such that the alien

was not eligible for withholding of

removal at the time it was granted;

(3) The alien has committed any other

act that would have been grounds for

denial of withholding of removal under

section 241(b)(3)(B) of the Act had it

occurred prior to the grant of

withholding of removal; or

(4) For applications filed in

proceedings commenced before April 1,

1997, the alien has committed any act

that would have been grounds for denial

of withholding of deportation under

section 243(h)(2) of the Act.

(c) Procedure. Prior to the termination

of a grant of asylum or withholding of

deportation or removal, the alien shall

be given notice of intent to terminate,

with the reasons therefor, at least 30

days prior to the interview specified in

paragraph (a) of this section before an

asylum officer. The alien shall be

provided the opportunity to present

evidence showing that he or she is still

eligible for asylum or withholding of

deportation or removal. If the asylum

officer determines that the alien is no

longer eligible for asylum or

withholding of deportation or removal,

the alien shall be given written notice

that asylum status or withholding of

deportation or removal and any

employment authorization issued

pursuant thereto, are terminated.

(d) Termination of derivative status.

The termination of asylum status for a

person who was the principal applicant

shall result in termination of the asylum

status of a spouse or child whose status

was based on the asylum application of

the principal. Such termination shall

not preclude the spouse or child of such

alien from separately asserting an

asylum or withholding of deportation or

removal claim.

(e) Termination of asylum or

withholding of deportation or removal

by the Executive Office for Immigration

Review. An immigration judge or the

Board of Immigration Appeals may

reopen a case pursuant to § 3.2 or § 3.23

of this chapter for the purpose of

terminating a grant of asylum or

withholding of deportation or removal

made under the jurisdiction of an

immigration judge. In such a reopened

proceeding, the Service must establish,

by a preponderance of evidence, one or

more of the grounds set forth in

paragraphs (a) or (b) of this section. In

addition, an immigration judge may

terminate a grant of asylum or

withholding of deportation or removal

made under the jurisdiction of the

Service at any time after the alien has

been provided a notice of intent to

terminate by the Service. Any

termination under this paragraph may

occur in conjunction with an exclusion,

deportation or removal proceeding.

(f) Termination of asylum for arriving

aliens. If the Service determines that an

applicant for admission who had

previously been granted asylum in the

United States falls within conditions set

forth in section 208(c)(2) of the Act and

is inadmissible, the Service shall issue

a notice of intent to terminate asylum

and initiate removal proceedings under

section 240 of the Act. The alien shall

present his or her response to the intent

to terminate during proceedings before

the immigration judge.

§§ 208.23—208.29 [Reserved]

Subpart B—Credible Fear of

Persecution

§ 208.30 Credible fear determinations

involving stowaways and applicants for

admission found inadmissible pursuant to

section 212(a)(6)(C) or 212(a)(7) of the Act.

(a) Jurisdiction. The provisions of this

subpart apply to aliens subject to

sections 235(a)(2) and 235(b)(1) of the

Act. Pursuant to section 235(b)(1)(B) of

the Act, the Service has exclusive

jurisdiction to make credible fear

determinations, and the Executive

Office for Immigration Review has

exclusive jurisdiction to review such

determinations. Except as otherwise

provided in this subpart, paragraphs (b)

through (e) of this section are the

exclusive procedures applicable to

credible fear interviews, determinations,

and review under section 235(b)(1)(B) of

the Act.

(b) Interview and procedure. The

asylum officer, as defined in section

235(b)(1)(E) of the Act, will conduct the

interview in a nonadversarial manner,

separate and apart from the general

public. At the time of the interview, the

asylum officer shall verify that the alien

has received Form M–444, Information

about Credible Fear Interview in

Expedited Removal Cases. The officer

shall also determine that the alien has

an understanding of the credible fear

determination process. The alien may be

required to register his or her identity

electronically or through any other

means designated by the Attorney

General. The alien may consult with a

person or persons of the alien’s

choosing prior to the interview or any

review thereof, and may present other

evidence, if available. Such consultation

shall be at no expense to the

Government and shall not unreasonably

delay the process. Any person or

persons with whom the alien chooses to

consult may be present at the interview

and may be permitted, in the discretion

of the asylum officer, to present a

statement at the end of the interview.

The asylum officer, in his or her

discretion, may place reasonable limits

on the number of such persons who may

be present at the interview and on the

length of statement or statements made.

If the alien is unable to proceed

effectively in English, and if the asylum

officer is unable to proceed competently

in a language chosen by the alien, the

asylum officer shall arrange for the

assistance of an interpreter in

conducting the interview. The

interpreter may not be a representative

or employee of the applicant’s country

of nationality or, if the applicant is

stateless, the applicant’s country of last

habitual residence. The asylum officer

shall create a summary of the material

facts as stated by the applicant. At the

conclusion of the interview, the officer

shall review the summary with the alien

and provide the alien with an

opportunity to correct errors therein.

The asylum officer shall create a written

record of his or her determination,

including a summary of the material

facts as stated by the applicant, any

additional facts relied on by the officer,

and the officer’s determination of

whether, in light of such facts, the alien
10346 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

has established a credible fear of

persecution. The decision shall not

become final until reviewed by a

supervisory asylum officer.

(c) Authority. Asylum officers

conducting credible fear interviews

shall have the authorities described in

§ 208.9(c).

(d) Referral for an asylum hearing. If

an alien, other than an alien stowaway,

is found to have a credible fear of

persecution, the asylum officer will so

inform the alien and issue a Form I–862,

Notice to Appear, for full consideration

of the asylum claim in proceedings

under section 240 of the Act. Parole of

the alien may only be considered in

accordance with section 212(d)(5) of the

Act and § 212.5 of this chapter. If an

alien stowaway is found to have a

credible fear of persecution, the asylum

officer will so inform the alien and issue

a Form I–863, Notice to Referral to

Immigration Judge, for full

consideration of the asylum claim in

proceedings under § 208.2(b)(1).

(e) Removal of aliens with no credible

fear of persecution. If an alien is found

not to have a credible fear of

persecution, the asylum officer shall

provide the alien with a written notice

of decision and inquire whether the

alien wishes to have an immigration

judge review the negative decision,

using Form I–869, Record of Negative

Credible Fear Finding and Request for

Review by Immigration Judge, on which

the alien shall indicate whether he or

she desires such review. If the alien is

not a stowaway, the officer shall also

order the alien removed and issue a

Form I–860, Notice and Order of

Expedited Removal. If the alien is a

stowaway and the alien does not request

a review by an immigration judge, the

asylum officer shall also refer the alien

to the district director for completion of

removal proceedings in accordance with

section 235(a)(2) of the Act.

(f) Review by immigration judge. The

asylum officer’s negative decision

regarding credible fear shall be subject

to review by an immigration judge upon

the applicant’s request, in accordance

with section 235(b)(1)(B)(iii)(III) of the

Act. If the alien requests such review,

the asylum officer shall arrange for the

detention of the alien and serve him or

her with a Form I–863, Notice of

Referral to Immigration Judge. The

record of determination, including

copies of the Form I–863, the asylum

officer’s notes, the summary of the

material facts, and other materials upon

which the determination was based

shall be provided to the immigration

judge with the negative determination.

Upon review of the asylum officer’s

negative credible fear determination:

(1) If the immigration judge concurs

with the determination of the asylum

officer that the alien does not have a

credible fear of persecution, the case

shall be returned to the Service for

removal of the alien.

(2) If the immigration judge finds that

the alien, other than an alien stowaway,

possesses a credible fear of persecution,

the immigration judge shall vacate the

order of the asylum officer issued on

Form I–860 and the Service may

commence removal proceedings under

section 240 of the Act, during which

time the alien may file an asylum

application in accordance with

§ 208.4(b)(3)(i).

(3) If the immigration judge finds that

an alien stowaway possesses a credible

fear of persecution, the alien shall be

allowed to file an asylum application

before the immigration judge in

accordance with § 208.4(b)(3)(iii). The

immigration judge shall decide the

asylum application as provided in that

section. Such decision may be appealed

by either the stowaway or the Service to

the Board of Immigration Appeals. If

and when a denial of the asylum

application becomes final, the alien

shall be removed from the United States

in accordance with section 235(a)(2) of

the Act. If and when an approval of the

asylum application becomes final, the

Service shall terminate removal

proceedings under section 235(a)(2) of

the Act.

PART 209—ADJUSTMENT OF STATUS

OF REFUGEES AND ALIENS

GRANTED ASYLUM

43. The authority citation for part 209

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1157, 1158,

1159, 1228, 1252, 1282; 8 CFR part 2.

§ 209.1 [Amended]

44. In § 209.1, paragraph (a)(1) is

amended in the first sentence by

revising the reference to ‘‘, 236, and

237’’ to read ‘‘and 240’’.

45. In § 209.2, the last sentence of

paragraph (c) is revised to read as

follows:

§ 209.2 Adjustment of status of alien

granted asylum.

* * * * *

(c) Application. * * * If an alien has

been placed in deportation, exclusion,

or removal proceedings under any

section of this Act (as effective on the

date such proceedings commenced), the

application can be filed and considered

only in those proceedings.

* * * * *

PART 211—DOCUMENTARY

REQUIREMENTS: IMMIGRANTS;

WAIVERS

46. Part 211 is revised to read as

follows:

Sec.

211.1 Visas.

211.2 Passports.

211.3 Expiration of immigrant visas, reentry

permits, refugee travel documents, and

Forms I–551.

211.4 Waiver of documents for returning

residents.

211.5 Alien commuters.

Authority: 8 U.S.C. 1101, 1103, 1181, 1182,

1203, 1225, 1257; 8 CFR part 2.

§ 211.1 Visas.

(a) General. Except as provided in

paragraph (b) of this section, each

arriving alien applying for admission (or

boarding the vessel or aircraft on which

he or she arrives) into the United States

for lawful permanent residence, or as a

lawful permanent resident returning to

an unrelinquished lawful permanent

residence in the United States, shall

present one of the following:

(1) A valid, unexpired immigrant visa;

(2) A valid, unexpired Form I–551,

Alien Registration Receipt Card, if

seeking readmission after a temporary

absence of less than 1 year, or in the

case of a crewmember regularly serving

on board a vessel or aircraft of United

States registry seeking readmission after

any temporary absence connected with

his or her duties as a crewman;

(3) A valid, unexpired Form I–327,

Permit to Reenter the United States;

(4) A valid, unexpired Form I–571,

Refugee Travel Document, properly

endorsed to reflect admission as a

lawful permanent resident;

(5) An expired Form I–551, Alien

Registration Receipt Card, accompanied

by a filing receipt issued within the

previous 6 months for either a Form I–

751, Petition to Remove the Conditions

on Residence, or Form I–829, Petition

by Entrepreneur to Remove Conditions,

if seeking admission or readmission

after a temporary absence of less than 1

year;

(6) A Form I–551, whether or not

expired, presented by a civilian or

military employee of the United States

Government who was outside the

United States pursuant to official orders,

or by the spouse or child of such

employee who resided abroad while the

employee or serviceperson was on

overseas duty and who is preceding,

accompanying or following to join

within 4 months the employee,

returning to the United States; or

(7) Form I–551, whether or not

expired, or a transportation letter issued

by an American consular officer,
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10347

presented by an employee of the

American University of Beirut, who was

so employed immediately preceding

travel to the United States, returning

temporarily to the United States before

resuming employment with the

American University of Beirut, or

resuming permanent residence in the

United States.

(b) Waivers. (1) A waiver of the visa

required in paragraph (a) of this section

shall be granted without fee or

application by the district director,

upon presentation of the child’s birth

certificate, to a child born subsequent to

the issuance of an immigrant visa to his

or her accompanying parent who

applies for admission during the

validity of such a visa; or a child born

during the temporary visit abroad of a

mother who is a lawful permanent

resident alien, or a national, of the

United States, provided that the child’s

application for admission to the United

States is made within 2 years of birth,

the child is accompanied by the parent

who is applying for readmission as a

permanent resident upon the first return

of the parent to the United States after

the birth of the child, and the

accompanying parent is found to be

admissible to the United States.

(2) For an alien described in

paragraph (b)(1) of this section,

recordation of the child’s entry shall be

on Form I–181, Memorandum of

Creation of Record of Admission for

Lawful Permanent Residence. The

carrier of such alien shall not be liable

for a fine pursuant to section 273 of the

Act.

(3) If an immigrant alien returning to

an unrelinquished lawful permanent

residence in the United States after a

temporary absence abroad believes that

good cause exists for his or her failure

to present an immigrant visa, Form I–

551, or reentry permit, the alien may file

an application for a waiver of this

requirement with the district director in

charge of the port-of-entry. To apply for

this waiver, the alien must file Form I–

193, Application for Waiver of Passport

and/or Visa, with the fee prescribed in

§ 103.7(b)(1) of this chapter, except that

if the alien’s Form I–551 was lost or

stolen, the alien shall instead file Form

I–90, Application to Replace Alien

Registration Receipt Card, with the fee

prescribed in § 103.7(b)(1) of this

chapter, provided the temporary

absence did not exceed 1 year. In the

exercise of discretion, the district

director in charge of the port-of-entry

may waive the alien’s lack of an

immigrant visa, Form I–551, or reentry

permit and admit the alien as a

returning resident, if the district director

is satisfied that the alien has established

good cause for the alien’s failure to

present an immigrant visa, Form I–551,

or reentry permit. Filing the Form I–90

will serve as both application for

replacement and as application for

waiver of passport and visa, without the

obligation to file a separate waiver

application.

(c) Immigrants having occupational

status defined in section 101(a)(15) (A),

(E), or (G) of the Act. An immigrant visa,

reentry permit, or Form I–551 shall be

invalid when presented by an alien who

has an occupational status under section

101(a)(15) (A), (E), or (G) of the Act,

unless he or she has previously

submitted, or submits at the time he or

she applies for admission to the United

States, the written waiver required by

section 247(b) of the Act and 8 CFR part

247.

(d) Returning temporary residents. (1)

Form I–688, Temporary Resident Card,

may be presented in lieu of an

immigrant visa by an alien whose status

has been adjusted to that of a temporary

resident under the provisions of § 210.1

of this chapter, such status not having

changed, and who is returning to an

unrelinquished residence within one

year after a temporary absence abroad.

(2) Form I–688 may be presented in

lieu of an immigrant visa by an alien

whose status has been adjusted to that

of a temporary resident under the

provisions of § 245a.2 of this chapter,

such status not having changed, and

who is returning to an unrelinquished

residence within 30 days after a

temporary absence abroad, provided

that the aggregate of all such absences

abroad during the temporary residence

period has not exceeded 90 days.

§ 211.2 Passports.

(a) A passport valid for the bearer’s

entry into a foreign country at least 60

days beyond the expiration date of his

or her immigrant visa shall be presented

by each immigrant except an immigrant

who:

(1) Is the parent, spouse, or unmarried

son or daughter of a United States

citizen or of an alien lawful permanent

resident of the United States;

(2) Is entering under the provisions of

§ 211.1(a)(2) through (a)(7);

(3) Is a child born during the

temporary visit abroad of a mother who

is a lawful permanent resident alien, or

a national, of the United States,

provided that the child’s application for

admission to the United States is made

within 2 years of birth, the child is

accompanied by the parent who is

applying for readmission as a

permanent resident upon the first return

of the parent to the United States after

the birth of the child, and the

accompanying parent is found to be

admissible to the United States;

(4) Is a stateless person or a person

who because of his or her opposition to

Communism is unwilling or unable to

obtain a passport from the country of his

or her nationality, or is the

accompanying spouse or unmarried son

or daughter of such immigrant; or

(5) Is a member of the Armed Forces

of the United States.

(b) Except as provided in paragraph

(a) of this section, if an alien seeking

admission as an immigrant with an

immigrant visa believes that good cause

exists for his or her failure to present a

passport, the alien may file an

application for a waiver of this

requirement with the district director in

charge of the port-of-entry. To apply for

this waiver, the alien must file Form I–

193, Application for Waiver of Passport

and/or Visa, with the fee prescribed in

§ 103.7(b)(1) of this chapter. In the

exercise of discretion, the district

director in charge of the port-of-entry

may waive the alien’s lack of passport

and admit the alien as an immigrant, if

the district director is satisfied that the

alien has established good cause for the

alien’s failure to present a passport.

§ 211.3 Expiration of immigrant visas,

reentry permits, refugee travel documents,

and Forms I–551.

An immigrant visa, reentry permit,

refugee travel document, or Form I—551

shall be regarded as unexpired if the

rightful holder embarked or enplaned

before the expiration of his or her

immigrant visa, reentry permit, or

refugee travel document, or with respect

to Form I—551, before the first

anniversary of the date on which he or

she departed from the United States,

provided that the vessel or aircraft on

which he or she so embarked or

enplaned arrives in the United States or

foreign contiguous territory on a

continuous voyage. The continuity of

the voyage shall not be deemed to have

been interrupted by scheduled or

emergency stops of the vessel or aircraft

en route to the United States or foreign

contiguous territory, or by a layover in

foreign contiguous territory necessitated

solely for the purpose of effecting a

transportation connection to the United

States.

§ 211.4 Waiver of documents for returning

residents.

(a) Pursuant to the authority

contained in section 211(b) of the Act,

an alien previously lawfully admitted to

the United States for permanent

residence who, upon return from a

temporary absence was inadmissible

because of failure to have or to present
10348 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

a valid passport, immigrant visa, reentry

permit, border crossing card, or other

document required at the time of entry,

may be granted a waiver of such

requirement in the discretion of the

district director if the district director

determines that such alien:

(1) Was not otherwise inadmissible at

the time of entry, or having been

otherwise inadmissible at the time of

entry is with respect thereto qualified

for an exemption from deportability

under section 237(a)(1)(H) of the Act;

and

(2) Is not otherwise subject to

removal.

(b) Denial of a waiver by the district

director is not appealable but shall be

without prejudice to renewal of an

application and reconsideration in

proceedings before the immigration

judge.

§ 211.5 Alien commuters.

(a) General. An alien lawfully

admitted for permanent residence or a

special agricultural worker lawfully

admitted for temporary residence under

section 210 of the Act may commence

or continue to reside in foreign

contiguous territory and commute as a

special immigrant defined in section

101(a)(27)(A) of the Act to his or her

place of employment in the United

States. An alien commuter engaged in

seasonal work will be presumed to have

taken up residence in the United States

if he or she is present in this country for

more than 6 months, in the aggregate,

during any continuous 12-month

period. An alien commuter’s address

report under section 265 of the Act must

show his or her actual residence address

even though it is not in the United

States.

(b) Loss of residence status. An alien

commuter who has been out of regular

employment in the United States for a

continuous period of 6 months shall be

deemed to have lost residence status,

notwithstanding temporary entries in

the interim for other than employment

purposes. An exception applies when

employment in the United States was

interrupted for reasons beyond the

individual’s control other than lack of a

job opportunity or the commuter can

demonstrate that he or she has worked

90 days in the United States in the

aggregate during the 12-month period

preceding the application for admission

into the United States. Upon loss of

status, Form I–551 or I–688 shall

become invalid and must be

surrendered to an immigration officer.

(c) Eligibility for benefits under the

immigration and nationality laws. Until

he or she has taken up residence in the

United States, an alien commuter

cannot satisfy the residence

requirements of the naturalization laws

and cannot qualify for any benefits

under the immigration laws on his or

her own behalf or on behalf of his or her

relatives other than as specified in

paragraph (a) of this section. When an

alien commuter takes up residence in

the United States, he or she shall no

longer be regarded as a commuter. He or

she may facilitate proof of having taken

up such residence by notifying the

Service as soon as possible, preferably at

the time of his or her first reentry for

that purpose. Application for issuance

of a new alien registration receipt card

to show that he or she has taken up

residence in the United States shall be

made on Form I–90.

PART 212—DOCUMENTARY

REQUIREMENTS: NONIMMIGRANTS;

WAIVERS; ADMISSION OF CERTAIN

INADMISSIBLE ALIENS; PAROLE

47. The authority citation for part 212

continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182,

1184, 1187, 1225, 1226, 1227, 1228, 1252; 8

CFR part 2.

48. Section 212.5 is amended by:

a. Revising paragraph (a) and (b);

b. Revising introductory text in

paragraph (c);

c. Revising paragraph (c)(1); and by

d. Revising paragraph (d)(2)(i), to read

as follows:

§ 212.5 Parole of aliens into the United

States.

(a) The parole of aliens within the

following groups who have been or are

detained in accordance with § 235.3(b)

or (c) of this chapter would generally be

justified only on a case-by-case basis for

‘‘urgent humanitarian reasons’’ or

‘‘significant public benefit,’’ provided

the aliens present neither a security risk

nor a risk of absconding:

(1) Aliens who have serious medical

conditions in which continued

detention would not be appropriate;

(2) Women who have been medically

certified as pregnant;

(3) Aliens who are defined as

juveniles in § 236.3(a) of this chapter.

The district director or chief patrol

agent shall follow the guidelines set

forth in § 236.3(a) of this chapter and

paragraphs (a)(3)(i) through (iii) of this

section in determining under what

conditions a juvenile should be paroled

from detention:

(i) Juveniles may be released to a

relative (brother, sister, aunt, uncle, or

grandparent) not in Service detention

who is willing to sponsor a minor and

the minor may be released to that

relative notwithstanding that the

juvenile has a relative who is in

detention.

(ii) If a relative who is not in

detention cannot be located to sponsor

the minor, the minor may be released

with an accompanying relative who is

in detention.

(iii) If the Service cannot locate a

relative in or out of detention to sponsor

the minor, but the minor has identified

a non-relative in detention who

accompanied him or her on arrival, the

question of releasing the minor and the

accompanying non-relative adult shall

be addressed on a case-by-case basis;

(4) Aliens who will be witnesses in

proceedings being, or to be, conducted

by judicial, administrative, or legislative

bodies in the United States; or

(5) Aliens whose continued detention

is not in the public interest as

determined by the district director or

chief patrol agent.

(b) In the cases of all other arriving

aliens, except those detained under

§ 235.3(b) or (c) of this chapter and

paragraph (a) of this section, the district

director or chief patrol agent may, after

review of the individual case, parole

into the United States temporarily in

accordance with section 212(d)(5)(A) of

the Act, any alien applicant for

admission, under such terms and

conditions, including those set forth in

paragraph (c) of this section, as he or

she may deem appropriate. An alien

who arrives at a port-of-entry and

applies for parole into the United States

for the sole purpose of seeking

adjustment of status under section 245A

of the Act, without benefit of advance

authorization as described in paragraph

(e) of this section shall be denied parole

and detained for removal in accordance

with the provisions of § 235.3(b) or (c)

of this chapter. An alien seeking to enter

the United States for the sole purpose of

applying for adjustment of status under

section 210 of the Act shall be denied

parole and detained for removal under

§ 235.3(b) or (c) of this chapter, unless

the alien has been recommended for

approval of such application for

adjustment by a consular officer at an

Overseas Processing Office.

(c) Conditions. In any case where an

alien is paroled under paragraph (a) or

(b) of this section, the district director

or chief patrol agent may require

reasonable assurances that the alien will

appear at all hearings and/or depart the

United States when required to do so.

Not all factors listed need be present for

parole to be exercised. The district

director or chief patrol agent should

apply reasonable discretion. The

consideration of all relevant factors

includes:
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10349

(1) The giving of an undertaking by

the applicant, counsel, or a sponsor to

ensure appearances or departure, and a

bond may be required on Form I–352 in

such amount as the district director or

chief patrol agent may deem

appropriate;

* * * * *

(d) * * *

(2)(i) On notice. In cases not covered

by paragraph (d)(1) of this section, upon

accomplishment of the purpose for

which parole was authorized or when in

the opinion of the district director or

chief patrol agent in charge of the area

in which the alien is located, neither

humanitarian reasons nor public benefit

warrants the continued presence of the

alien in the United States, parole shall

be terminated upon written notice to the

alien and he or she shall be restored to

the status that he or she had at the time

of parole. When a charging document is

served on the alien, the charging

document will constitute written notice

of termination of parole, unless

otherwise specified. Any further

inspection or hearing shall be

conducted under section 235 or 240 of

the Act and this chapter, or any order

of exclusion, deportation, or removal

previously entered shall be executed. If

the exclusion, deportation, or removal

order cannot be executed by removal

within a reasonable time, the alien shall

again be released on parole unless in the

opinion of the district director or the

chief patrol agent the public interest

requires that the alien be continued in

custody.

* * * * *

49. In § 212.6, paragraph (a)(2) is

revised to read as follows:

§ 212.6 Nonresident alien border crossing

cards.

(a) * * *

(2) Mexican border crossing card,

Form I–186 or I–586. The rightful holder

of a nonresident alien Mexican border

crossing card, Form I–186 or I–586, may

be admitted under § 235.1(f) of this

chapter if found otherwise admissible.

However, any alien seeking entry as a

visitor for business or pleasure must

also present a valid passport and shall

be issued Form I–94 if the alien is

applying for admission from:

(i) A country other than Mexico or

Canada, or

(ii) Canada if the alien has been in a

country other than the United States or

Canada since leaving Mexico.

* * * * *

PART 213—ADMISSION OF ALIENS

ON GIVING BOND OR CASH DEPOSIT

50. The authority citation for part 213

is revised to read as follows:

Authority: 8 U.S.C. 1103; 8 CFR part 2.

§ 213.1 [Amended]

51. Section 213.1 is amended in the

last sentence by revising the term ‘‘part

103’’ to read ‘‘§ 103.6’’.

PART 214—NONIMMIGRANT CLASSES

52. The authority citation for part 214

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184,

1186a, 1187, 1221, 1281, 1282; 8 CFR part 2.

53. Section 214.1 is amended by

revising paragraph (c)(4)(iv) to read as

follows:

§ 214.1 Requirements for admission,

extension, and maintenance of status.

* * * * *

(c) * * *

(4) * * *

(iv) The alien is not the subject of

deportation proceedings under section

242 of the Act (prior to April 1, 1997)

or removal proceedings under section

240 of the Act.

* * * * *

PART 216—CONDITIONAL BASIS OF

LAWFUL PERMANENT RESIDENCE

STATUS

54. The authority citation for part 216

continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1154, 1184,

1186a, 1186b, and 8 CFR part 2.

55. Section 216.3 is revised to read as

follows:

§ 216.3 Termination of conditional resident

status.

(a) During the two-year conditional

period. The director shall send a formal

written notice to the conditional

permanent resident of the termination of

the alien’s conditional permanent

resident status if the director determines

that any of the conditions set forth in

section 216(b)(1) or 216A(b)(1) of the

Act, whichever is applicable, are true, or

it becomes known to the government

that an alien entrepreneur who was

admitted pursuant to section 203(b)(5)

of the Act obtained his or her

investment capital through other than

legal means (such as through the sale of

illegal drugs). If the Service issues a

notice of intent to terminate an alien’s

conditional resident status, the director

shall not adjudicate Form I–751 or Form

I–829 until it has been determined that

the alien’s status will not be terminated.

During this time, the alien shall

continue to be a lawful conditional

permanent resident with all the rights,

privileges, and responsibilities provided

to persons possessing such status. Prior

to issuing the notice of termination, the

director shall provide the alien with an

opportunity to review and rebut the

evidence upon which the decision is to

be based, in accordance with

§ 103.2(b)(2) of this chapter. The

termination of status, and all of the

rights and privileges concomitant

thereto (including authorization to

accept or continue in employment in

this country), shall take effect as of the

date of such determination by the

director, although the alien may request

a review of such determination in

removal proceedings. In addition to the

notice of termination, the director shall

issue a notice to appear in accordance

with 8 CFR part 239. During the ensuing

removal proceedings, the alien may

submit evidence to rebut the

determination of the director. The

burden of proof shall be on the Service

to establish, by a preponderance of the

evidence, that one or more of the

conditions in section 216(b)(1) or

216A(b)(1) of the Act, whichever is

applicable, are true, or that an alien

entrepreneur who was admitted

pursuant to section 203(b)(5) of the Act

obtained his or her investment capital

through other than legal means (such as

through the sale of illegal drugs).

(b) Determination of fraud after two

years. If, subsequent to the removal of

the conditional basis of an alien’s

permanent resident status, the director

determines that an alien spouse

obtained permanent resident status

through a marriage which was entered

into for the purpose of evading the

immigration laws or an alien

entrepreneur obtained permanent

resident status through a commercial

enterprise which was improper under

section 216A(b)(1) of the Act, the

director may institute rescission

proceedings pursuant to section 246 of

the Act (if otherwise appropriate) or

removal proceedings under section 240

of the Act.

56. Section 216.4 is amended by:

a. Revising paragraphs (a)(6), and

(b)(3);

b. Revising paragraph, (c)(4);

c. Removing the unnumbered

paragraph immediately after paragraph

(c)(4); and by

d. Revising paragraph (d)(2) to read as

follows:

§ 216.4 Joint petition to remove

conditional basis of lawful permanent

resident status for alien spouse.

(a) * * *
10350 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

(6) Termination of status for failure to

file petition. Failure to properly file

Form I–751 within the 90-day period

immediately preceding the second

anniversary of the date on which the

alien obtained lawful permanent

residence on a conditional basis shall

result in the automatic termination of

the alien’s permanent residence status

and the initiation of proceedings to

remove the alien from the United States.

In such proceedings the burden shall be

on the alien to establish that he or she

complied with the requirement to file

the joint petition within the designated

period. Form I–751 may be filed after

the expiration of the 90-day period only

if the alien establishes to the satisfaction

of the director, in writing, that there was

good cause for the failure to file Form

I–751 within the required time period.

If the joint petition is filed prior to the

jurisdiction vesting with the

immigration judge in removal

proceedings and the director excuses

the late filing and approves the petition,

he or she shall restore the alien’s

permanent residence status, remove the

conditional basis of such status and

cancel any outstanding notice to appear

in accordance with § 239.2 of this

chapter. If the joint petition is not filed

until after jurisdiction vests with the

immigration judge, the immigration

judge may terminate the matter upon

joint motion by the alien and the

Service.

(b) * * *

(3) Termination of status for failure to

appear for interview. If the conditional

resident alien and/or the petitioning

spouse fail to appear for an interview in

connection with the joint petition

required by section 216(c) of the Act,

the alien’s permanent residence status

will be automatically terminated as of

the second anniversary of the date on

which the alien obtained permanent

residence. The alien shall be provided

with written notification of the

termination and the reasons therefor,

and a notice to appear shall be issued

placing the alien under removal

proceedings. The alien may seek review

of the decision to terminate his or her

status in such proceedings, but the

burden shall be on the alien to establish

compliance with the interview

requirements. If the alien submits a

written request that the interview be

rescheduled or that the interview be

waived, and the director determines that

there is good cause for granting the

request, the interview may be

rescheduled or waived, as appropriate.

If the interview is rescheduled at the

request of the petitioners, the Service

shall not be required to conduct the

interview within the 90-day period

following the filing of the petition.

(c) * * *

(4) A fee or other consideration was

given (other than a fee or other

consideration to an attorney for

assistance in preparation of a lawful

petition) in connection with the filing of

the petition through which the alien

obtained conditional permanent

residence. If derogatory information is

determined regarding any of these

issues, the director shall offer the

petitioners the opportunity to rebut

such information. If the petitioners fail

to overcome such derogatory

information the director may deny the

joint petition, terminate the alien’s

permanent residence, and issue a notice

to appear to initiate removal

proceedings. If derogatory information

not relating to any of these issues is

determined during the course of the

interview, such information shall be

forwarded to the investigations unit for

appropriate action. If no unresolved

derogatory information is determined

relating to these issues, the petition

shall be approved and the conditional

basis of the alien’s permanent residence

status removed, regardless of any action

taken or contemplated regarding other

possible grounds for removal.

(d) * * *

(2) Denial. If the director denies the

joint petition, he or she shall provide

written notice to the alien of the

decision and the reason(s) therefor and

shall issue a notice to appear under

section 239 of the Act and 8 CFR part

239. The alien’s lawful permanent

resident status shall be terminated as of

the date of the director’s written

decision. The alien shall also be

instructed to surrender any Alien

Registration Receipt Card previously

issued by the Service. No appeal shall

lie from the decision of the director;

however, the alien may seek review of

the decision in removal proceedings. In

such proceedings the burden of proof

shall be on the Service to establish, by

a preponderance of the evidence, that

the facts and information set forth by

the petitioners are not true or that the

petition was properly denied.

57. Section 216.5 is amended by

revising paragraphs (a), (d), (e)(1),

(e)(3)(ii), and (f) to read as follows:

§ 216.5 Waiver of requirement to file joint

petition to remove conditions by alien

spouse.

(a) General. (1) A conditional resident

alien who is unable to meet the

requirements under section 216 of the

Act for a joint petition for removal of the

conditional basis of his or her

permanent resident status may file Form

I–751, Petition to Remove the

Conditions on Residence, if the alien

requests a waiver, was not at fault in

failing to meet the filing requirement,

and the conditional resident alien is

able to establish that:

(i) Deportation or removal from the

United States would result in extreme

hardship;

(ii) The marriage upon which his or

her status was based was entered into in

good faith by the conditional resident

alien, but the marriage was terminated

other than by death, and the conditional

resident was not at fault in failing to file

a timely petition; or

(iii) The qualifying marriage was

entered into in good faith by the

conditional resident but during the

marriage the alien spouse or child was

battered by or subjected to extreme

cruelty committed by the citizen or

permanent resident spouse or parent.

(2) A conditional resident who is in

exclusion, deportation, or removal

proceedings may apply for the waiver

only until such time as there is a final

order of exclusion, deportation or

removal.

* * * * *

(d) Interview. The service center

director may refer the application to the

appropriate local office and require that

the alien appear for an interview in

connection with the application for a

waiver. The director shall deny the

application and initiate removal

proceedings if the alien fails to appear

for the interview as required, unless the

alien establishes good cause for such

failure and the interview is rescheduled.

(e) Adjudication of waiver

application. (1) Application based on

claim of hardship. In considering an

application for a waiver based upon an

alien’s claim that extreme hardship

would result from the alien’s removal

from the United States, the director

shall take into account only those

factors that arose subsequent to the

alien’s entry as a conditional permanent

resident. The director shall bear in mind

that any removal from the United States

is likely to result in a certain degree of

hardship, and that only in those cases

where the hardship is extreme should

the application for a waiver be granted.

The burden of establishing that extreme

hardship exists rests solely with the

applicant.

* * * * *

(3) * * *

(ii) A conditional resident or former

conditional resident who has not

departed the United States after

termination of resident status may apply

for the waiver. The conditional resident

may apply for the waiver regardless of
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10351

his or her present marital status. The

conditional resident may still be

residing with the citizen or permanent

resident spouse, or may be divorced or

separated.

* * * * *

(f) Decision. The director shall

provide the alien with written notice of

the decision on the application for

waiver. If the decision is adverse, the

director shall advise the alien of the

reasons therefor, notify the alien of the

termination of his or her permanent

residence status, instruct the alien to

surrender any Alien Registration

Receipt Card issued by the Service and

issue a notice to appear placing the

alien in removal proceedings. No appeal

shall lie from the decision of the

director; however, the alien may seek

review of such decision in removal

proceedings.

PART 217—VISA WAIVER PILOT

PROGRAM

58. The authority citation for part 217

continues to read as follows:

Authority: 8 U.S.C. 1103, 1187; 8 CFR part

2.

59. Section 217.1 is revised to read as

follows:

§ 217.1 Scope.

The Visa Waiver Pilot Program

(VWPP) described in this section is

established pursuant to the provisions

of section 217 of the Act.

60. Section 217.2 is revised to read as

follows:

§ 217.2 Eligibility.

(a) Definitions. As used in this part,

the term:

Carrier refers to the owner, charterer,

lessee, or authorized agent of any

commercial vessel or commercial

aircraft engaged in transporting

passengers to the United States from a

foreign place.

Designated country refers to Andorra,

Argentina, Australia, Austria, Belgium,

Brunei, Denmark, Finland, France,

Germany, Iceland, Italy, Japan,

Liechtenstein, Luxembourg, Monaco,

the Netherlands, New Zealand, Norway,

San Marino, Spain, Sweden,

Switzerland, and the United Kingdom.

The United Kingdom refers only to

British citizens who have the

unrestricted right of permanent abode in

the United Kingdom (England, Scotland,

Wales, Northern Ireland, the Channel

Islands and the Isle of Man); it does not

refer to British overseas citizens, British

dependent territories’ citizens, or

citizens of British Commonwealth

countries. Effective April 1, 1995, until

September 30, 1998, or the expiration of

the Visa Waiver Pilot Program,

whichever comes first, Ireland has been

designated as a Visa Waiver Pilot

Program country with Probationary

Status in accordance with section 217(g)

of the Act.

Round trip ticket means any return

trip transportation ticket in the name of

an arriving Visa Waiver Pilot Program

applicant on a participating carrier valid

for at least 1 year, electronic ticket

record, airline employee passes

indicating return passage, individual

vouchers for return passage, group

vouchers for return passage for charter

flights, and military travel orders which

include military dependents for return

to duty stations outside the United

States on U.S. military flights. A period

of validity of 1 year need not be

reflected on the ticket itself, provided

that the carrier agrees that it will honor

the return portion of the ticket at any

time, as provided in Form I–775, Visa

Waiver Pilot Program Agreement.

(b) Special program requirements. (1)

General. In addition to meeting all of the

requirements for the Visa Waiver Pilot

Program specified in section 217 of the

Act, each applicant must possess a

valid, unexpired passport issued by a

designated country and present a

completed, signed Form I–94W,

Nonimmigrant Visa Waiver Arrival/

Departure Form.

(2) Persons previously removed as

deportable aliens. Aliens who have been

deported or removed from the United

States, after having been determined

deportable, require the consent of the

Attorney General to apply for admission

to the United States pursuant to section

212(a)(9)(A)(iii) of the Act. Such persons

may not be admitted to the United

States under the provisions of this part

notwithstanding the fact that the

required consent of the Attorney

General may have been secured. Such

aliens must secure a visa in order to be

admitted to the United States as

nonimmigrants, unless otherwise

exempt.

(c) Restrictions on manner of arrival.

(1) Applicants arriving by air and sea.

Applicants must arrive on a carrier that

is signatory to a Visa Waiver Pilot

Program Agreement and at the time of

arrival must have a round trip ticket that

will transport the traveler out of the

United States to any other foreign port

or place as long as the trip does not

terminate in contiguous territory or an

adjacent island; except that the round

trip ticket may transport the traveler to

contiguous territory or an adjacent

island, if the traveler is a resident of the

country of destination.

(2) Applicants arriving at land border

ports-of-entry. Any Visa Waiver Pilot

Program applicant arriving at a land

border port-of-entry must provide

evidence to the immigration officer of

financial solvency and a domicile

abroad to which the applicant intends to

return. An applicant arriving at a landborder port-of-entry will be charged a

fee as prescribed in § 103.7(b)(1) of this

chapter for issuance of Form I–94W,

Nonimmigrant Visa Waiver Arrival/

Departure Form. A round-trip

transportation ticket is not required of

applicants at land border ports-of-entry.

(d) Aliens in transit. An alien who is

in transit through the United States is

eligible to apply for admission under

the Visa Waiver Pilot Program, provided

the applicant meets all other program

requirements.

61. Section 217.3 is revised to read as

follows:

§ 217.3 Maintenance of status.

(a) Satisfactory departure. If an

emergency prevents an alien admitted

under this part from departing from the

United States within his or her period

of authorized stay, the district director

having jurisdiction over the place of the

alien’s temporary stay may, in his or her

discretion, grant a period of satisfactory

departure not to exceed 30 days. If

departure is accomplished during that

period, the alien is to be regarded as

having satisfactorily accomplished the

visit without overstaying the allotted

time.

(b) Readmission after departure to

contiguous territory or adjacent island.

An alien admitted to the United States

under this part may be readmitted to the

United States after a departure to foreign

contiguous territory or adjacent island

for the balance of his or her original

Visa Waiver Pilot Program admission

period if he or she is otherwise

admissible and meets all the conditions

of this part with the exception of arrival

on a signatory carrier.

62. Section 217.4 is amended by:

a. Revising the section heading:

b. Removing paragraph (a);

c. Redesignating paragraphs (b), (c),

and (d) as paragraphs (a), (b), and (c)

respectively;

d. Revising newly redesignated

paragraph (a)(1);

e. Adding a new paragraph (a)(3);

f. Revising newly redesignated

paragraph (b); and by

g. Revising newly redesignated

paragraph (c) to read as follows:

§ 217.4 Inadmissibility and deportability.

(a) Determinations of inadmissibility.

(1) An alien who applies for admission

under the provisions of section 217 of

the Act, who is determined by an

immigration officer not to be eligible for
10352 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

admission under that section or to be

inadmissible to the United States under

one or more of the grounds of

inadmissibility listed in section 212 of

the Act (other than for lack of a visa),

or who is in possession of and presents

fraudulent or counterfeit travel

documents, will be refused admission

into the United States and removed.

Such refusal and removal shall be made

at the level of the port director or

officer-in-charge, or an officer acting in

that capacity, and shall be effected

without referral of the alien to an

immigration judge for further inquiry,

examination, or hearing, except that an

alien who presents himself or herself as

an applicant for admission under

section 217 of the Act, who applies for

asylum in the United States must be

issued a Form I–863, Notice of Referral

to Immigration Judge, for a proceeding

in accordance with § 208.2(b)(1) and (2)

of this chapter.

* * * * *

(3) Refusal of admission under

paragraph (a)(1) of this section shall not

constitute removal for purposes of the

Act.

(b) Determination of deportability. (1)

An alien who has been admitted to the

United States under the provisions of

section 217 of the Act and of this part

who is determined by an immigration

officer to be deportable from the United

States under one or more of the grounds

of deportability listed in section 237 of

the Act shall be removed from the

United States to his or her country of

nationality or last residence. Such

removal shall be determined by the

district director who has jurisdiction

over the place where the alien is found,

and shall be effected without referral of

the alien to an immigration judge for a

determination of deportability, except

that an alien admitted as a Visa Waiver

Pilot Program visitor who applies for

asylum in the United States must be

issued a Form I–863 for a proceeding in

accordance with § 208.2(b)(1) and (2) of

this chapter.

(2) Removal by the district director

under paragraph (b)(1) of this section is

equivalent in all respects and has the

same consequences as removal after

proceedings conducted under section

240 of the Act.

(c)(1) Removal of inadmissible aliens

who arrived by air or sea. Removal of an

alien from the United States under this

section may be effected using the return

portion of the round trip passage

presented by the alien at the time of

entry to the United States as required by

section 217(a)(7) of the Act. Such

removal shall be on the first available

means of transportation to the alien’s

point of embarkation to the United

States. Nothing in this part absolves the

carrier of the responsibility to remove

any inadmissible or deportable alien at

carrier expense, as provided in the

carrier agreement.

(2) Removal of inadmissible and

deportable aliens who arrived at land

border ports-of-entry. Removal under

this section will be by the first available

means of transportation deemed

appropriate by the district director.

§ 217.5 [Removed and reserved]

63. Section 217.5 is removed and

reserved.

64. Section 217.6 is revised to read as

follows:

§ 217.6 Carrier agreements.

(a) General. The carrier agreements

referred to in section 217(e) of the Act

shall be made by the Commissioner on

behalf of the Attorney General and shall

be on Form I–775, Visa Waiver Pilot

Program Agreement.

(b) Termination of agreements. The

Commissioner, on behalf of the Attorney

General, may terminate any carrier

agreement under this part, with 5 days

notice to a carrier, for the carrier’s

failure to meet the terms of such

agreement. As a matter of discretion, the

Commissioner may notify a carrier of

the existence of a basis for termination

of a carrier agreement under this part

and allow the carrier a period not to

exceed 15 days within which the carrier

may bring itself into compliance with

the terms of the carrier agreement. The

agreement shall be subject to

cancellation by either party for any

reason upon 15 days’ written notice to

the other party.

PART 221—ADMISSION OF VISITORS

OR STUDENTS

65. The authority citation for part 221

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1201; 8

CFR part 2.

§ 221.1 [Amended]

66. Section 221.1 is amended in the

last sentence by revising the term ‘‘part

103’’ to read ‘‘§ 103.6’’.

PART 223—REENTRY PERMITS,

REFUGEE TRAVEL DOCUMENTS, AND

ADVANCE PAROLE DOCUMENTS

67. The authority citation for part 223

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1181, 1182,

1186a, 1203, 1225, 1226, 1227, 1251; Protocol

Relating to the Status of Refugees, November

1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFR

part 2.

68. In § 223.1, paragraph (b) is revised

to read as follows:

§ 223.1 Purpose of documents.

* * * * *

(b) Refugee travel document. A

refugee travel document is issued

pursuant to this part and article 28 of

the United Nations Convention of July

29, 1951, for the purpose of travel.

Except as provided in § 223.3(d)(2)(i), a

person who holds refugee status

pursuant to section 207 of the Act, or

asylum status pursuant to section 208 of

the Act, must have a refugee travel

document to return to the United States

after temporary travel abroad unless he

or she is in possession of a valid

advance parole document.

69. In § 223.2, paragraph (b)(2) is

revised to read as follows:

§ 223.2 Processing.

* * * * *

(b) * * *

(2) Refugee travel document. (i)

General. Except as otherwise provided

in this section, an application may be

approved if filed by a person who is in

the United States at the time of

application, and either holds valid

refugee status under section 207 of the

Act, valid asylum status under section

208 of the Act, or is a permanent

resident and received such status as a

direct result of his or her asylum or

refugee status.

(ii) Discretionary authority to

adjudicate an application from an alien

not within the United States. As a matter

of discretion, a district director having

jurisdiction over a port-of-entry or a

preinspection station where an alien is

an applicant for admission, or an

overseas district director having

jurisdiction over the place where an

alien is physically present, may accept

and adjudicate an application for a

refugee travel document from an alien

who previously had been admitted to

the United States as a refugee, or who

previously had been granted asylum

status in the United States, and who had

departed from the United States without

having applied for such refugee travel

document, provided:

(A) The alien submits a Form I–131,

Application for Travel Document, with

the fee required under § 103.7(b)(1) of

this chapter;

(B) The district director is satisfied

that the alien did not intend to abandon

his or her refugee status at the time of

departure from the United States;

(C) The alien did not engage in any

activities while outside the United

States that would be inconsistent with

continued refugee or asylee status; and
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10353

(D) The alien has been outside the

United States for less than 1 year since

his or her last departure.

* * * * *

70. In § 223.3, paragraph (d)(2) is

revised to read as follows:

§ 223.3 Validity and effect on admissibility.

* * * * *

(d) * * *

(2) Refugee travel document. (i)

Inspection and immigration status.

Upon arrival in the United States, an

alien who presents a valid unexpired

refugee travel document, or who has

been allowed to file an application for

a refugee travel document and this

application has been approved under

the procedure set forth in

§ 223.2(b)(2)(ii), shall be examined as to

his or her admissibility under the Act.

An alien shall be accorded the

immigration status endorsed in his or

her refugee travel document, or (in the

case of an alien discussed in

§ 223.2(b)(2)(ii)) which will be endorsed

in such document, unless he or she is

no longer eligible for that status, or he

or she applies for and is found eligible

for some other immigration status.

(ii) Inadmissibility. If an alien who

presents a valid unexpired refugee

travel document appears to the

examining immigration officer to be

inadmissible, he or she shall be referred

for proceedings under section 240 of the

Act. Section 235(c) of the Act shall not

be applicable.

PART 232—DETENTION OF ALIENS

FOR PHYSICAL AND MENTAL

EXAMINATION

71. The heading for part 232 is revised

to read as set forth above.

72. The authority citation for part 232

is revised to read as follows:

Authority: 8 U.S.C. 1103, 1222, 1224, 1252;

8 CFR part 2.

§ 232.1 [Redesignated and revised]

73. Section 232.1 is redesignated as

§ 232.3, and is revised to read as

follows:

§ 232.3 Arriving aliens.

When a district director has

reasonable grounds for believing that

persons arriving in the United States

should be detained for reasons specified

in section 232 of the Act, he or she

shall, after consultation with the United

States Public Health Service at the portof-entry, notify the master or agent of

the arriving vessel or aircraft of his or

her intention to effect such detention by

serving on the master or agent Form I–

259 in accordance with § 235.3(a) of this

chapter.

§§ 234.1 and 234.2 [Redesignated as

§§ 232.1 and 232.2 respectively]

74. Sections 234.1 and 234.2 are

redesignated as §§ 232.1 and 232.2

respectively.

PART 234—[REMOVED]

75. Part 234 is removed.

76. The following parts are

redesignated as set forth in the table

below:

Old part New part

Part 238 ..................................... Part 233.

Part 239 ..................................... Part 234.

PART 233—CONTRACTS WITH

TRANSPORTATION LINES

77. The authority citation for newly

designated part 233 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1228; 8 CFR part

2.

78. Newly redesignated § 233.1 is

revised to read as follows:

§ 233.1 Contracts.

The contracts with transportation

lines referred to in section 233(c) of the

Act may be entered into by the

Executive Associate Commissioner for

Programs, or by an immigration officer

designated by the Executive Associate

Commissioner for Programs on behalf of

the government and shall be

documented on Form I–420. The

contracts with transportation lines

referred to in section 233(a) of the Act

shall be made by the Commissioner on

behalf of the government and shall be

documented on Form I–426. The

contracts with transportation lines

desiring their passengers to be

preinspected at places outside the

United States shall be made by the

Commissioner on behalf of the

government and shall be documented

on Form I–425; except that contracts for

irregularly operated charter flights may

be entered into by the Associate

Commissioner for Examinations or an

immigration officer designated by the

Executive Associate Commissioner for

Programs and having jurisdiction over

the location where the inspection will

take place.

79. In newly redesignated § 233.3,

paragraph (b) is revised to read as

follows (the list of agreements is

removed):

§ 233.3 Aliens in immediate and

continuous transit.

* * * * *

(b) Signatory lines. A list of currently

effective Form I–426 agreements is

maintained by the Service’s

Headquarters Office of Inspections and

is available upon written request.

* * * * *

80. Newly redesignated § 233.4 is

revised to read as follows:

§ 233.4 Preinspection outside the United

States.

(a) Form I–425 agreements. A

transportation line bringing applicants

for admission to the United States

through preinspection sites outside the

United States shall enter into an

agreement on Form I–425. Such an

agreement shall be negotiated directly

by the Service’s Headquarters Office of

Inspections and the head office of the

transportation line.

(b) Signatory lines. A list of

transportation lines with currently valid

transportation agreements on Form I–

425 is maintained by the Service’s

Headquarters Office of Inspections and

is available upon written request.

81. Newly redesignated § 233.5 is

revised to read as follows:

§ 233.5 Aliens entering Guam pursuant to

section 14 of Public Law 99–396, ‘‘Omnibus

Territories Act.’

A transportation line bringing aliens

to Guam under the visa waiver

provisions of § 212.1(e) of this chapter

shall enter into an agreement on Form

I–760. Such agreements shall be

negotiated directly by the Service’s

Headquarters and head offices of the

transportation lines.

PART 234—DESIGNATION OF PORTS

OF ENTRY FOR ALIENS ARRIVING BY

CIVIL AIRCRAFT

82. The heading for newly

redesignated part 234 is revised as set

forth above.

83. The authority citation for newly

designated part 234 is revised to read as

follows:

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

CFR part 2.

§ 234.3 [Amended]

84. Newly redesignated § 234.3 is

amended by removing the last sentence.

PART 235—INSPECTION OF PERSONS

APPLYING FOR ADMISSION

85. The authority citation for part 235

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1183,

1201, 1224, 1225, 1226, 1227, 1228, 1252; 8

CFR part 2.

86. Section 235.1 is revised to read as

follows:

§ 235.1 Scope of examination.

(a) General. Application to lawfully

enter the United States shall be made in
10354 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

person to an immigration officer at a

U.S. port-of-entry when the port is open

for inspection, or as otherwise

designated in this section.

(b) U.S. citizens. A person claiming

U.S. citizenship must establish that fact

to the examining officer’s satisfaction

and must present a U.S. passport if such

passport is required under the

provisions of 22 CFR part 53. If such

applicant for admission fails to satisfy

the examining immigration officer that

he or she is a U.S. citizen, he or she

shall thereafter be inspected as an alien.

(c) Alien members of United States

Armed Forces and members of a force

of a NATO country. Any alien member

of the United States Armed Forces who

is in the uniform of, or bears documents

identifying him or her as a member of,

such Armed Forces, and who is coming

to or departing from the United States

under official orders or permit of such

Armed Forces is not subject to the

removal provisions of the Act. A

member of the force of a NATO country

signatory to Article III of the Status of

Forces Agreement seeking to enter the

United States under official orders is

exempt from the control provision of the

Act. Any alien who is a member of

either of the foregoing classes may,

upon request, be inspected and his or

her entry as an alien may be recorded.

If the alien does not appear to the

examining immigration officer to be

clearly and beyond a doubt entitled to

enter the United States under the

provisions of the Act, the alien shall be

so informed and his or her entry shall

not be recorded.

(d) Alien applicants for admission. (1)

Each alien seeking admission at a

United States port-of-entry shall present

whatever documents are required and

shall establish to the satisfaction of the

immigration officer that he or she is not

subject to removal under the

immigration laws, Executive Orders, or

Presidential Proclamations and is

entitled under all of the applicable

provisions of the immigration laws and

this chapter to enter the United States.

A person claiming to have been lawfully

admitted for permanent residence must

establish that fact to the satisfaction of

the inspecting immigration officer and

must present proper documents in

accordance with § 211.1 of this chapter.

(2) An alien present in the United

States who has not been admitted or

paroled or an alien who seeks entry at

other than an open, designated port-ofentry, except as otherwise permitted in

this section, is subject to the provisions

of section 212(a) of the Act and to

removal under section 235(b) or 240 of

the Act.

(3) An alien who is brought to the

United States, whether or not to a

designated port-of-entry and regardless

of the means of transportation, after

having been interdicted in international

or United States waters, is considered

an applicant for admission and shall be

examined under section 235(b) of the

Act.

(4) An alien stowaway is not an

applicant for admission and may not be

admitted to the United States. A

stowaway shall be removed from the

United States under section 235(a)(2) of

the Act. The provisions of section 240

of the Act are not applicable to

stowaways, nor is the stowaway entitled

to further hearing or review of the

removal, except that an alien stowaway

who indicates an intention to apply for

asylum shall be referred to an asylum

officer for a determination of credible

fear of persecution in accordance with

section 235(b)(1)(B) of the Act and

§ 208.30 of this chapter. An alien

stowaway who is determined to have a

credible fear of persecution shall have

his or her asylum application

adjudicated in accordance with

§ 208.2(b)(2) of this chapter. Nothing in

this section shall be construed to require

expedited removal proceedings in

accordance with section 235(b)(1) of the

Act. A stowaway who absconds either

prior to inspection by an immigration

officer or after being ordered removed as

a stowaway pursuant to section

235(a)(2) of the Act is not entitled to

removal proceedings under section 240

of the Act and shall be removed under

section 235(a)(2) of the Act as if

encountered upon arrival. A stowaway

who has been removed pursuant to

section 235(a)(2) of the Act and this

section shall be considered to have been

formally removed from the United

States for all purposes under the Act.

(e) U.S. citizens, lawful permanent

residents of the United States, Canadian

nationals, and other residents of

Canada having a common nationality

with Canadians, entering the United

States by small craft. Upon being

inspected by an immigration officer and

found eligible for admission as a citizen

of the United States, or found eligible

for admission as a lawful permanent

resident of the United States, or in the

case of a Canadian national or other

resident of Canada having a common

nationality with Canadians being found

eligible for admission as a temporary

visitor for pleasure, a person who

desires to enter the United States from

Canada in a small pleasure craft of less

than 5 net tons without merchandise

may be issued, upon application and

payment of a fee prescribed under

§ 103.7(b)(1) of this chapter, Form I–68,

Canadian Border Boat Landing Card,

and may thereafter enter the United

States along with the immediate shore

area of the United States on the body of

water designated on the Form I–68 from

time to time for the duration of that

navigation season without further

inspection. In the case of a Canadian

national or other resident of Canada

having a common nationality with

Canadians, the Form I–68 shall be valid

only for the purpose of visits not to

exceed 72 hours and only if the alien

will remain in nearby shopping areas,

nearby residential neighborhoods, or

other similar areas adjacent to the

immediate shore area of the United

States. If the bearer of Form I–68 seeks

to enter the United States by means

other than small craft of less than 5 net

tons without merchandise, or if he or

she seeks to enter the United States for

other purposes, or if he or she is an

alien, other than a lawful permanent

resident alien of the United States, and

intends to proceed beyond an area

adjacent to the immediate shore area of

the United States, or remains in the

United States longer than 72 hours, he

or she must apply for admission at a

United States port-of-entry.

(f) Form I–94, Arrival Departure

Record. (1) Unless otherwise exempted,

each arriving nonimmigrant who is

admitted to the United States shall be

issued, upon payment of a fee

prescribed in § 103.7(b)(1) of this

chapter for land border admissions, a

Form I–94 as evidence of the terms of

admission. A Form I–94 issued at a land

border port-of-entry shall be considered

issued for multiple entries unless

specifically annotated for a limited

number of entries. A Form I–94 issued

at other than a land border port-of-entry,

unless issued for multiple entries, must

be surrendered upon departure from the

United States in accordance with the

instructions on the form. Form I–94 is

not required by:

(i) Any nonimmigrant alien described

in § 212.1(a) of this chapter and 22 CFR

41.33 who is admitted as a visitor for

business or pleasure or admitted to

proceed in direct transit through the

United States;

(ii) Any nonimmigrant alien residing

in the British Virgin Islands who was

admitted only to the U.S. Virgin Islands

as a visitor for business or pleasure

under § 212.1(b) of this chapter;

(iii) Any Mexican national in

possession of a valid nonresident alien

Mexican border crossing card, or a valid

Mexican passport and a multiple-entry

nonimmigrant visa issued under section

101(a)(15)(B) of the Act, who is

admitted as a nonimmigrant visitor at a

Mexican border port of entry for a
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10355

period not to exceed 72 hours to visit

within 25 miles of the border;

(iv) Bearers of Mexican diplomatic or

official passports described in § 212.1(c–

1) of this chapter.

(2) Paroled aliens. Any alien paroled

into the United States under section

212(d)(5) of the Act, including any alien

crewmember, shall be issued a

completely executed Form I–94,

endorsed with the parole stamp.

87. Section 235.2 is revised to read as

follows:

§ 235.2 Parole for deferred inspection.

(a) A district director may, in his or

her discretion, defer the inspection of

any vessel or aircraft, or of any alien, to

another Service office or port-of-entry.

Any alien coming to a United States

port from a foreign port, from an

outlying possession of the United States,

from Guam, Puerto Rico, or the Virgin

Islands of the United States, or from

another port of the United States at

which examination under this part was

deferred, shall be regarded as an

applicant for admission at that onward

port.

(b) An examining immigration officer

may defer further examination and refer

the alien’s case to the district director

having jurisdiction over the place where

the alien is seeking admission, or over

the place of the alien’s residence or

destination in the United States, if the

examining immigration officer has

reason to believe that the alien can

overcome a finding of inadmissibility

by:

(1) Posting a bond under section 213

of the Act;

(2) Seeking and obtaining a waiver

under section 211 or 212(d)(3) or (4) of

the Act; or

(3) Presenting additional evidence of

admissibility not available at the time

and place of the initial examination.

(c) Such deferral shall be

accomplished pursuant to the

provisions of section 212(d)(5) of the

Act for the period of time necessary to

complete the deferred inspection.

(d) Refusal of a district director to

authorize admission under section 213

of the Act, or to grant an application for

the benefits of section 211 or section

212(d) (3) or (4) of the Act, shall be

without prejudice to the renewal of such

application or the authorizing of such

admission by the immigration judge

without additional fee.

(e) Whenever an alien on arrival is

found or believed to be suffering from

a disability that renders it impractical to

proceed with the examination under the

Act, the examination of such alien,

members of his or her family concerning

whose admissibility it is necessary to

have such alien testify, and any

accompanying aliens whose protection

or guardianship will be required should

such alien be found inadmissible shall

be deferred for such time and under

such conditions as the district director

in whose district the port is located

imposes.

88. Section 235.3 is revised to read as

follows:

§ 235.3 Inadmissible aliens and expedited

removal.

(a) Detention prior to inspection. All

persons arriving at a port-of-entry in the

United States by vessel or aircraft shall

be detained aboard the vessel or at the

airport of arrival by the owner, agent,

master, commanding officer, person in

charge, purser, or consignee of such

vessel or aircraft until admitted or

otherwise permitted to land by an

officer of the Service. Notice or order to

detain shall not be required. The owner,

agent, master, commanding officer,

person in charge, purser, or consignee of

such vessel or aircraft shall deliver

every alien requiring examination to an

immigration officer for inspection or to

a medical officer for examination. The

Service will not be liable for any

expenses related to such detention or

presentation or for any expenses of a

passenger who has not been presented

for inspection and for whom a

determination has not been made

concerning admissibility by a Service

officer.

(b) Expedited removal. (1)

Applicability. The expedited removal

provisions shall apply to the following

classes of aliens who are determined to

be inadmissible under section

212(a)(6)(C) or (7) of the Act:

(i) Arriving aliens, as defined in

§ 1.1(q) of this chapter, except for

citizens of Cuba arriving at a United

States port-of-entry by aircraft;

(ii) As specifically designated by the

Commissioner, aliens who arrive in,

attempt to enter, or have entered the

United States without having been

admitted or paroled following

inspection by an immigration officer at

a designated port-of-entry, and who

have not established to the satisfaction

of the immigration officer that they have

been physically present in the United

States continuously for the 2-year

period immediately prior to the date of

determination of inadmissibility. The

Commissioner shall have the sole

discretion to apply the provisions of

section 235(b)(1) of the Act, at any time,

to any class of aliens described in this

section. The Commissioner’s

designation shall become effective upon

publication of a notice in the Federal

Register. However, if the Commissioner

determines, in the exercise of discretion,

that the delay caused by publication

would adversely affect the interests of

the United States or the effective

enforcement of the immigration laws,

the Commissioner’s designation shall

become effective immediately upon

issuance, and shall be published in the

Federal Register as soon as practicable

thereafter. When these provisions are in

effect for aliens who enter without

inspection, the burden of proof rests

with the alien to affirmatively show that

he or she has the required continuous

physical presence in the United States.

Any absence from the United States

shall serve to break the period of

continuous physical presence. An alien

who was not inspected and admitted or

paroled into the United States but who

establishes that he or she has been

continuously physically present in the

United States for the 2-year period

immediately prior to the date of

determination of inadmissibility shall

be detained in accordance with section

235(b)(2) of the Act for a proceeding

under section 240 of the Act.

(2) Determination of inadmissibility.

(i) Record of proceeding. An alien who

is arriving in the United States, or other

alien as designated pursuant to

paragraph (b)(1)(ii) of this section, who

is determined to be inadmissible under

section 212(a)(6)(C) or 212(a)(7) of the

Act (except an alien for whom

documentary requirements are waived

under § 211.1(b)(3) or § 212.1 of this

chapter), shall be ordered removed from

the United States in accordance with

section 235(b)(1) of the Act. In every

case in which the expedited removal

provisions will be applied and before

removing an alien from the United

States pursuant to this section, the

examining immigration officer shall

create a record of the facts of the case

and statements made by the alien. This

shall be accomplished by means of a

sworn statement using Form I–867AB,

Record of Sworn Statement in

Proceedings under Section 235(b)(1) of

the Act. The examining immigration

officer shall read (or have read) to the

alien all information contained on Form

I–867A. Following questioning and

recording of the alien’s statement

regarding identity, alienage, and

inadmissibility, the examining

immigration officer shall record the

alien’s response to the questions

contained on Form I–867B, and have the

alien read (or have read to him or her)

the statement, and the alien shall sign

and initial each page of the statement

and each correction. The examining

immigration officer shall advise the

alien of the charges against him or her
10356 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

on Form I–860, Notice and Order of

Expedited Removal, and the alien shall

be given an opportunity to respond to

those charges in the sworn statement.

After obtaining supervisory concurrence

in accordance with paragraph (b)(7) of

this section, the examining immigration

official shall serve the alien with Form

I–860 and the alien shall sign the

reverse of the form acknowledging

receipt. Interpretative assistance shall be

used if necessary to communicate with

the alien.

(ii) No entitlement to hearings and

appeals. Except as otherwise provided

in this section, such alien is not entitled

to a hearing before an immigration judge

in proceedings conducted pursuant to

section 240 of the Act, or to an appeal

of the expedited removal order to the

Board of Immigration Appeals.

(iii) Detention and parole of alien in

expedited removal. An alien whose

inadmissibility is being considered

under this section or who has been

ordered removed pursuant to this

section shall be detained pending

determination and removal, except that

parole of such alien, in accordance with

section 212(d)(5) of the Act, may be

permitted only when the Attorney

General determines, in the exercise of

discretion, that parole is required to

meet a medical emergency or is

necessary for a legitimate law

enforcement objective.

(3) Additional charges of

inadmissibility. In the expedited

removal process, the Service may not

charge an alien with any additional

grounds of inadmissibility other than

section 212(a)(6)(C) or 212(a)(7) of the

Act. If an alien appears to be

inadmissible under other grounds

contained in section 212(a) of the Act,

and if the Service wishes to pursue such

additional grounds of inadmissibility,

the alien shall be detained and referred

for a removal hearing before an

immigration judge pursuant to sections

235(b)(2) and 240 of the Act for inquiry

into all charges. Once the alien is in

removal proceedings under section 240

of the Act, the Service is not precluded

from lodging additional charges against

the alien. Nothing in this paragraph

shall preclude the Service from

pursuing such additional grounds of

inadmissibility against the alien in any

subsequent attempt to reenter the

United States, provided the additional

grounds of inadmissibility still exist.

(4) Claim of asylum or fear of

persecution. If an alien subject to the

expedited removal provisions indicates

an intention to apply for asylum, a fear

of persecution, or a fear of return to his

or her country, the inspecting officer

shall not proceed further with removal

of the alien until the alien has been

referred for an interview by an asylum

officer in accordance with § 208.30 of

this chapter to determine if the alien has

a credible fear of persecution. The

examining immigration officer shall

record sufficient information in the

sworn statement to establish and record

that the alien has indicated such

intention, fear, or concern, and to

establish the alien’s inadmissibility.

(i) Referral. The referring officer shall

provide the alien with a written

disclosure on Form M–444, Information

About Credible Fear Interview,

describing:

(A) The purpose of the referral and

description of the credible fear

interview process;

(B) The right to consult with other

persons prior to the interview and any

review thereof at no expense to the

United States Government;

(C) The right to request a review by

an immigration judge of the asylum

officer’s credible fear determination;

and

(D) The consequences of failure to

establish a credible fear of persecution.

(ii) Detention pending credible fear

interview. Pending the credible fear

determination by an asylum officer and

any review of that determination by an

immigration judge, the alien shall be

detained. Parole of such alien in

accordance with section 212(d)(5) of the

Act may be permitted only when the

Attorney General determines, in the

exercise of discretion, that parole is

required to meet a medical emergency

or is necessary for a legitimate law

enforcement objective. Prior to the

interview, the alien shall be given time

to contact and consult with any person

or persons of his or her choosing. Such

consultation shall be made available in

accordance with the policies and

procedures of the detention facility

where the alien is detained, shall be at

no expense to the government, and shall

not unreasonably delay the process.

(5) Claim to lawful permanent

resident, refugee, or asylee status or U.S.

citizenship.—(i) Verification of status. If

an applicant for admission who is

subject to expedited removal pursuant

to section 235(b)(1) of the Act claims to

have been lawfully admitted for

permanent residence, admitted as a

refugee under section 207 of the Act,

granted asylum under section 208 of the

Act, or claims to be a U.S. citizen, the

immigration officer shall attempt to

verify the alien’s claim. Such

verification shall include a check of all

available Service data systems and any

other means available to the officer. An

alien whose claim to lawful permanent

resident, refugee, asylee status, or U.S.

citizen status cannot be verified will be

advised of the penalties for perjury, and

will be placed under oath or allowed to

make a declaration as permitted under

28 U.S.C. 1746, concerning his or her

lawful admission for permanent

residence, admission as a refugee under

section 207 of the Act, grant of asylum

status under section 208 of the Act, or

claim to U.S. citizenship. A written

statement shall be taken from the alien

in the alien’s own language and

handwriting, stating that he or she

declares, certifies, verifies, or states that

the claim is true and correct. The

immigration officer shall issue an

expedited order of removal under

section 235(b)(1)(A)(i) of the Act and

refer the alien to the immigration judge

for review of the order in accordance

with paragraph (b)(5)(iv) of this section

and § 235.6(a)(2)(ii). The person shall be

detained pending review of the

expedited removal order under this

section. Parole of such person, in

accordance with section 212(d)(5) of the

Act, may be permitted only when the

Attorney General determines, in the

exercise of discretion, that parole is

required to meet a medical emergency

or is necessary for a legitimate law

enforcement objective.

(ii) Verified lawful permanent

residents. If the claim to lawful

permanent resident status is verified,

and such status has not been terminated

in exclusion, deportation, or removal

proceedings, the examining immigration

officer shall not order the alien removed

pursuant to section 235(b)(1) of the Act.

The examining immigration officer will

determine in accordance with section

101(a)(13)(C) of the Act whether the

alien is considered to be making an

application for admission. If the alien is

determined to be seeking admission and

the alien is otherwise admissible, except

that he or she is not in possession of the

required documentation, a discretionary

waiver of documentary requirements

may be considered in accordance with

section 211(b) of the Act and

§ 211.1(b)(3) of this chapter or the

alien’s inspection may be deferred to an

onward office for presentation of the

required documents. If the alien appears

to be inadmissible, the immigration

officer may initiate removal proceedings

against the alien under section 240 of

the Act.

(iii) Verified refugees and asylees. If a

check of Service records or other means

indicates that the alien has been granted

refugee status or asylee status, and such

status has not been terminated in

deportation, exclusion, or removal

proceedings, the immigration officer

shall not order the alien removed

pursuant to section 235(b)(1) of the Act.
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10357

If the alien is not in possession of a

valid, unexpired refugee travel

document, the examining immigration

officer may accept an application for a

refugee travel document in accordance

with § 223.2(b)(2)(ii) of this chapter. If

accepted, the immigration officer shall

readmit the refugee or asylee in

accordance with § 223.3(d)(2)(i) of this

chapter. If the alien is determined not to

be eligible to file an application for a

refugee travel document the

immigration officer may initiate removal

proceedings against the alien under

section 240 of the Act.

(iv) Review of order for claimed lawful

permanent residents, refugees, asylees,

or U.S. citizens. A person whose claim

to U.S. citizenship has been verified

may not be ordered removed. When an

alien whose status has not been verified

but who is claiming under oath or under

penalty of perjury to be a lawful

permanent resident, refugee, asylee, or

U.S. citizen is ordered removed

pursuant to section 235(b)(1) of the Act,

the case will be referred to an

immigration judge for review of the

expedited removal order under section

235(b)(1)(C) of the Act and

§ 235.6(a)(2)(ii). If the immigration judge

determines that the alien has never been

admitted as a lawful permanent resident

or as a refugee, granted asylum status,

or is not a U.S. citizen, the order issued

by the immigration officer will be

affirmed and the Service will remove

the alien. There is no appeal from the

decision of the immigration judge. If the

immigration judge determines that the

alien was once so admitted as a lawful

permanent resident or as a refugee, or

was granted asylum status, or is a U.S.

citizen, and such status has not been

terminated by final administrative

action, the immigration judge will

terminate proceedings and vacate the

expedited removal order. The Service

may initiate removal proceedings

against such an alien, but not against a

person determined to be a U.S. citizen,

in proceedings under section 240 of the

Act. During removal proceedings, the

immigration judge may consider any

waivers, exceptions, or requests for

relief for which the alien is eligible.

(6) Opportunity for alien to establish

that he or she was admitted or paroled

into the United States. If the

Commissioner determines that the

expedited removal provisions of section

235(b)(1) of the Act shall apply to any

or all aliens described in paragraph

(b)(2)(ii) of this section, such alien will

be given a reasonable opportunity to

establish to the satisfaction of the

examining immigration officer that he or

she was admitted or paroled into the

United States following inspection at a

port-of-entry. The alien will be allowed

to present evidence or provide sufficient

information to support the claim. Such

evidence may consist of documentation

in the possession of the alien, the

Service, or a third party. The examining

immigration officer will consider all

such evidence and information, make

further inquiry if necessary, and will

attempt to verify the alien’s status

through a check of all available Service

data systems. The burden rests with the

alien to satisfy the examining

immigration officer of the claim of

lawful admission or parole. If the alien

establishes that he or she was lawfully

admitted or paroled, the case will be

examined to determine if grounds of

deportability under section 237(a) of the

Act are applicable, or if paroled,

whether such parole has been, or should

be, terminated, and whether the alien is

inadmissible under section 212(a) of the

Act. An alien who cannot satisfy the

examining officer that he or she was

lawfully admitted or paroled will be

ordered removed pursuant to section

235(b)(1) of the Act.

(7) Review of expedited removal

orders. Any removal order entered by an

examining immigration officer pursuant

to section 235(b)(1) of the Act must be

reviewed and approved by the

appropriate supervisor before the order

is considered final. Such supervisory

review shall not be delegated below the

level of the second line supervisor, or a

person acting in that capacity. The

supervisory review shall include a

review of the sworn statement and any

answers and statements made by the

alien regarding a fear of removal or

return. The supervisory review and

approval of an expedited removal order

for an alien described in section

235(b)(1)(A)(iii) of the Act must include

a review of any claim of lawful

admission or parole and any evidence or

information presented to support such a

claim, prior to approval of the order. In

such cases, the supervisor may request

additional information from any source

and may require further interview of the

alien.

(8) Removal procedures relating to

expedited removal. An alien ordered

removed pursuant to section 235(b)(1) of

the Act shall be removed from the

United States in accordance with

section 241(c) of the Act and 8 CFR part

241.

(9) Waivers of documentary

requirements. Nothing in this section

limits the discretionary authority of the

Attorney General, including authority

under sections 211(b) or 212(d) of the

Act, to waive the documentary

requirements for arriving aliens.

(10) Applicant for admission under

section 217 of the Act. The provisions

of § 235.3(b) do not apply to an

applicant for admission under section

217 of the Act.

(c) Arriving aliens placed in

proceedings under section 240 of the

Act. Except as otherwise provided in

this chapter, any arriving alien who

appears to the inspecting officer to be

inadmissible, and who is placed in

removal proceedings pursuant to section

240 of the Act shall be detained in

accordance with section 235(b) of the

Act. Parole of such alien shall only be

considered in accordance with

§ 212.5(a) of this chapter. This

paragraph shall also apply to any alien

who arrived before April 1, 1997, and

who was placed in exclusion

proceedings.

(d) Service custody. The Service will

assume custody of any alien subject to

detention under paragraph (b) or (c) of

this section. In its discretion, the

Service may require any alien who

appears inadmissible and who arrives at

a land border port-of-entry from Canada

or Mexico, to remain in that country

while awaiting a removal hearing. Such

alien shall be considered detained for a

proceeding within the meaning of

section 235(b) of the Act and may be

ordered removed in absentia by an

immigration judge if the alien fails to

appear for the hearing.

(e) Detention in non-Service facility.

Whenever an alien is taken into Service

custody and detained at a facility other

than at a Service Processing Center, the

public or private entities contracted to

perform such service shall have been

approved for such use by the Service’s

Jail Inspection Program or shall be

performing such service under contract

in compliance with the Standard

Statement of Work for Contract

Detention Facilities. Both programs are

administered by the Detention and

Deportation section having jurisdiction

over the alien’s place of detention.

Under no circumstances shall an alien

be detained in facilities not meeting the

four mandatory criteria for usage. These

are:

(1) 24-Hour supervision,

(2) Conformance with safety and

emergency codes,

(3) Food service, and

(4) Availability of emergency medical

care.

(f) Privilege of communication. The

mandatory notification requirements of

consular and diplomatic officers

pursuant to § 236.1(e) of this chapter

apply when an inadmissible alien is

detained for removal proceedings,

including for purpose of conducting the

credible fear determination.
10358 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

89. Section 235.4 is revised to read as

follows:

§ 235.4 Withdrawal of application for

admission.

(a) The Attorney General may, in his

or her discretion, permit any alien

applicant for admission to withdraw his

or her application for admission in lieu

of removal proceedings under section

240 of the Act or expedited removal

under section 235(b)(1) of the Act. The

alien’s decision to withdraw his or her

application for admission must be made

voluntarily, but nothing in this section

shall be construed as to give an alien the

right to withdraw his or her application

for admission. Permission to withdraw

an application for admission should not

normally be granted unless the alien

intends and is able to depart the United

States immediately. An alien permitted

to withdraw his or her application for

admission shall normally remain in

carrier or Service custody pending

departure, unless the district director

determines that parole of the alien is

warranted in accordance with § 212.5(a)

of this chapter.

(b) An immigration judge may allow

only an arriving alien to withdraw an

application for admission. Once the

issue of inadmissibility has been

resolved, permission to withdraw an

application for admission should

ordinarily be granted only with the

concurrence of the Service. An

immigration judge shall not allow an

alien to withdraw an application for

admission unless the alien, in addition

to demonstrating that he or she

possesses both the intent and the means

to depart immediately from the United

States, establishes that factors directly

relating to the issue of inadmissibility

indicate that the granting of the

withdrawal would be in the interest of

justice. During the pendency of an

appeal from the order of removal,

permission to withdraw an application

for admission must be obtained from the

immigration judge or the Board.

90. Section 235.5 is revised to read as

follows:

§ 235.5 Preinspection.

(a) In United States territories and

possessions. In the case of any aircraft

proceeding from Guam, Puerto Rico, or

the United States Virgin Islands

destined directly and without touching

at a foreign port or place, to any other

of such places, or to one of the States

of the United States or the District of

Columbia, the examination of the

passengers and crew required by the Act

may be made prior to the departure of

the aircraft, and in such event, final

determination of admissibility shall be

made immediately prior to such

departure. The examination shall be

conducted in accordance with sections

232, 235, and 240 of the Act and 8 CFR

parts 235 and 240. If it appears to the

examining immigration officer that any

person in the United States being

examined under this section is prima

facie removable from the United States,

further action with respect to his or her

examination shall be deferred and

further proceedings regarding

removability conducted as provided in

section 240 of the Act and 8 CFR part

240. When the foregoing inspection

procedure is applied to any aircraft,

persons examined and found admissible

shall be placed aboard the aircraft, or

kept at the airport separate and apart

from the general public until they are

permitted to board the aircraft. No other

person shall be permitted to depart on

such aircraft until and unless he or she

is found to be admissible as provided in

this section.

(b) In foreign territory. In the case of

any aircraft, vessel, or train proceeding

directly, without stopping, from a port

or place in foreign territory to a port-ofentry in the United States, the

examination and inspection of

passengers and crew required by the Act

and final determination of admissibility

may be made immediately prior to such

departure at the port or place in the

foreign territory and shall have the same

effect under the Act as though made at

the destined port-of-entry in the United

States.

91. Section 235.6 is revised to read as

follows:

§ 235.6 Referral to immigration judge.

(a) Notice. (1) Referral by Form I–862,

Notice to Appear. An immigration

officer or asylum officer will sign and

deliver a Form I–862 to an alien in the

following cases:

(i) If, in accordance with the

provisions of section 235(b)(2)(A) of the

Act, the examining immigration officer

detains an alien for a proceeding before

an immigration judge under section 240

of the Act; or

(ii) If, in accordance with section

235(b)(1)(B)(ii) of the Act, an asylum

officer determines that an alien in

expedited removal proceedings has a

credible fear of persecution and refers

the case to the immigration judge for

consideration of the application for

asylum.

(iii) If, in accordance with section

235(b)(1)(B)(iii)(III) of the Act, the

immigration judge determines that an

alien in expedited removal proceedings

has a credible fear of persecution and

vacates the expedited removal order

issued by the asylum officer pursuant to

section 235(b)(1)(B)(iii) of the Act.

(iv) If an immigration officer verifies

that an alien subject to expedited

removal under section 235(b)(1) of the

Act has been admitted as a lawful

permanent resident refugee, or asylee, or

upon review pursuant to

§ 235.3(b)(5)(iv) an immigration judge

determines that the alien was once so

admitted, provided that such status has

not been terminated by final

administrative action, and the Service

initiates removal proceedings against

the alien under section 240 of the Act.

(2) Referral by Form I–863, Notice of

Referral to Immigration Judge. An

immigration officer will sign and deliver

a Form I–863 to an alien in the

following cases:

(i) If, in accordance with section

235(b)(1)(B)(iii)(III) of the Act, an

asylum officer determines that an alien

does not have a credible fear of

persecution, and the alien requests a

review of that determination by an

immigration judge; or

(ii) If, in accordance with section

235(b)(1)(C) of the Act, an immigration

officer refers an expedited removal

order entered on an alien claiming to be

a lawful permanent resident, refugee,

asylee, or U.S. citizen for whom the

officer could not verify such status to an

immigration judge for review of the

order.

(iii) If an immigration officer refers an

applicant described in § 208.2(b)(1) of

this chapter to an immigration judge for

an asylum hearing under § 208.2(b)(2) of

this chapter.

(b) Certification for mental condition;

medical appeal. An alien certified

under sections 212(a)(1) and 232(b) of

the Act shall be advised by the

examining immigration officer that he or

she may appeal to a board of medical

examiners of the United States Public

Health Service pursuant to section 232

of the Act. If such appeal is taken, the

district director shall arrange for the

convening of the medical board.

§ 235.7 [Removed]

92. Section 235.7 is removed.

§ 235.13 [Redesignated as § 235.7]

93. Section 235.13 is redesignated as

§ 235.7.

94. Section 235.8 is revised to read as

follows:

§ 235.8 Inadmissibility on security and

related grounds.

(a) Report. When an immigration

officer or an immigration judge suspects

that an arriving alien appears to be

inadmissible under section 212(a)(3)(A)

(other than clause (ii)), (B), or (C) of the
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10359

Act, the immigration officer or

immigration judge shall order the alien

removed and report the action promptly

to the district director who has

administrative jurisdiction over the

place where the alien has arrived or

where the hearing is being held. The

immigration officer shall, if possible,

take a brief sworn question-and-answer

statement from the alien, and the alien

shall be notified by personal service of

Form I–147, Notice of Temporary

Inadmissibility, of the action taken and

the right to submit a written statement

and additional information for

consideration by the Attorney General.

The district director shall forward the

report to the regional director for further

action as provided in paragraph (b) of

this section.

(b) Action by regional director. (1) In

accordance with section 235(c)(2)(B) of

the Act, the regional director may deny

any further inquiry or hearing by an

immigration judge and order the alien

removed by personal service of Form I–

148, Notice of Permanent

Inadmissibility, or issue any other order

disposing of the case that the regional

director considers appropriate.

(2) If the regional director concludes

that the case does not meet the criteria

contained in section 235(c)(2)(B) of the

Act, the regional director may direct

that:

(i) An immigration officer shall

conduct a further examination of the

alien, concerning the alien’s

admissibility; or,

(ii) The alien’s case be referred to an

immigration judge for a hearing, or for

the continuation of any prior hearing.

(3) The regional director’s decision

shall be in writing and shall be signed

by the regional director. Unless the

written decision contains confidential

information, the disclosure of which

would be prejudicial to the public

interest, safety, or security of the United

States, the written decision shall be

served on the alien. If the written

decision contains such confidential

information, the alien shall be served

with a separate written order showing

the disposition of the case, but with the

confidential information deleted.

(c) Finality of decision. The regional

director’s decision under this section is

final when it is served upon the alien in

accordance with paragraph (b)(3) of this

section. There is no administrative

appeal from the regional director’s

decision.

(d) Hearing by immigration judge. If

the regional director directs that an

alien subject to removal under this

section be given a hearing or further

hearing before an immigration judge, the

hearing and all further proceedings in

the matter shall be conducted in

accordance with the provisions of

section 240 of the Act and other

applicable sections of the Act to the

same extent as though the alien had

been referred to an immigration judge

by the examining immigration officer. In

a case where the immigration judge

ordered the alien removed pursuant to

paragraph (a) of this section, the Service

shall refer the case back to the

immigration judge and proceedings

shall be automatically reopened upon

receipt of the notice of referral. If

confidential information, not previously

considered in the matter, is presented

supporting the inadmissibility of the

alien under section 212(a)(3)(A) (other

than clause (ii)), (B) or (C) of the Act, the

disclosure of which, in the discretion of

the immigration judge, may be

prejudicial to the public interest, safety,

or security, the immigration judge may

again order the alien removed under the

authority of section 235(c) of the Act

and further action shall be taken as

provided in this section.

(e) Nonapplicability. The provisions

of this section shall apply only to

arriving aliens, as defined in § 1.1(q) of

this chapter. Aliens present in the

United States who have not been

admitted or paroled may be subject to

proceedings under Title V of the Act.

§ 235.9 [Removed]

95. Section 235.9 is removed.

§ 235.12 [Redesignated as § 235.9 and

revised]

96. Section 235.12 is redesignated as

§ 235.9 and is revised to read as follows:

§ 235.9 Northern Marianas identification

card.

During the two-year period that ended

July 1, 1990, the Service issued

Northern Marianas Identification Cards

to aliens who acquired United States

citizenship when the Covenant to

Establish a Commonwealth of the

Northern Mariana Islands in Political

Union with the United States entered

into force on November 3, 1986. These

cards remain valid as evidence of

United States citizenship. Although the

Service no longer issues these cards, a

United States citizen to whom a card

was issued may file Form I–777,

Application for Issuance or

Replacement of Northern Marianas

Card, to obtain replacement of a lost,

stolen, or mutilated Northern Marianas

Identification Card.

97. Section 235.10 is revised to read

as follows:

§ 235.10 U.S. Citizen Identification Card.

(a) General. Form I–197, U.S. Citizen

Identification Card, is no longer issued

by the Service but valid existing cards

will continue to be acceptable

documentation of U.S. citizenship.

Possession of the identification card is

not mandatory for any purpose. A U.S.

Citizen Identification Card remains the

property of the United States. Because

the identification card is no longer

issued, there are no provisions for

replacement cards.

(b) Surrender and voidance. (1)

Institution of proceeding under section

240 or 342 of the Act. A U.S. Citizen

Identification Card must be surrendered

provisionally to a Service office upon

notification by the district director that

a proceeding under section 240 or 342

of the Act is being instituted against the

person to whom the card was issued.

The card shall be returned to the person

if the final order in the proceeding does

not result in voiding the card under this

paragraph. A U.S. Citizen Identification

Card is automatically void if the person

to whom it was issued is determined to

be an alien in a proceeding conducted

under section 240 of the Act, or if a

certificate, document, or record relating

to that person is canceled under section

342 of the Act.

(2) Investigation of validity of

identification card. A U.S. Citizen

Identification Card must be surrendered

provisionally upon notification by a

district director that the validity of the

card is being investigated. The card

shall be returned to the person who

surrendered it if the investigation does

not result in a determination adverse to

his or her claim to be a United States

citizen. When an investigation results in

a tentative determination adverse to the

applicant’s claim to be a United States

citizen, the applicant shall be notified

by certified mail directed to his or her

last known address. The notification

shall inform the applicant of the basis

for the determination and of the

intention of the district director to

declare the card void unless within 30

days the applicant objects and demands

an opportunity to see and rebut the

adverse evidence. Any rebuttal,

explanation, or evidence presented by

the applicant must be included in the

record of proceeding. The determination

whether the applicant is a United States

citizen must be based on the entire

record and the applicant shall be

notified of the determination. If it is

determined that the applicant is not a

United States citizen, the applicant shall

be notified of the reasons, and the card

deemed void. There is no appeal from

the district director’s decision.

(3) Admission of alienage. A U.S.

Citizen Identification Card is void if the

person to whom it was issued admits in

a statement signed before an
10360 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

immigration officer that he or she is an

alien and consents to the voidance of

the card. Upon signing the statement the

card must be surrendered to the

immigration officer.

(4) Surrender of void card. A void

U.S. Citizen Identification Card which

has not been returned to the Service

must be surrendered without delay to an

immigration officer or to the issuing

office of the Service.

(c) U.S. Citizen Identification Card

previously issued on Form I–179. A

valid Form I–179, U.S. Citizen

Identification Card, continues to be

valid subject to the provisions of this

section.

98. Section 235.11 is revised to read

as follows:

§ 235.11 Admission of conditional

permanent residents.

(a) General. (1) Conditional residence

based on family relationship. An alien

seeking admission to the United States

with an immigrant visa as the spouse or

son or daughter of a United States

citizen or lawful permanent resident

shall be examined to determine whether

the conditions of section 216 of the Act

apply. If so, the alien shall be admitted

conditionally for a period of 2 years. At

the time of admission, the alien shall be

notified that the alien and his or her

petitioning spouse must file a Form I–

751, Petition to Remove the Conditions

on Residence, within the 90-day period

immediately preceding the second

anniversary of the alien’s admission for

permanent residence.

(2) Conditional residence based on

entrepreneurship. An alien seeking

admission to the United States with an

immigrant visa as an alien entrepreneur

(as defined in section 216A(f)(1) of the

Act) or the spouse or unmarried minor

child of an alien entrepreneur shall be

admitted conditionally for a period of 2

years. At the time of admission, the

alien shall be notified that the principal

alien (entrepreneur) must file a Form I–

829, Petition by Entrepreneur to Remove

Conditions, within the 90-day period

immediately preceding the second

anniversary of the alien’s admission for

permanent residence.

(b) Correction of endorsement on

immigrant visa. If the alien is subject to

the provisions of section 216 of the Act,

but the classification endorsed on the

immigrant visa does not so indicate, the

endorsement shall be corrected and the

alien shall be admitted as a lawful

permanent resident on a conditional

basis, if otherwise admissible.

Conversely, if the alien is not subject to

the provisions of section 216 of the Act,

but the visa classification endorsed on

the immigrant visa indicates that the

alien is subject thereto (e.g., if the

second anniversary of the marriage

upon which the immigrant visa is based

occurred after the issuance of the visa

and prior to the alien’s application for

admission) the endorsement on the visa

shall be corrected and the alien shall be

admitted as a lawful permanent resident

without conditions, if otherwise

admissible.

(c) Expired conditional permanent

resident status. The lawful permanent

resident alien status of a conditional

resident automatically terminates if the

conditional basis of such status is not

removed by the Service through

approval of a Form I–751, Petition to

Remove the Conditions on Residence or,

in the case of an alien entrepreneur (as

defined in section 216A(f)(1) of the Act),

Form I–829, Petition by Entrepreneur to

Remove Conditions. Therefore, an alien

who is seeking admission as a returning

resident subsequent to the second

anniversary of the date on which

conditional residence was obtained

(except as provided in § 211.1(b)(1) of

this chapter) and whose conditional

basis of such residence has not been

removed pursuant to section 216(c) or

216A(c) of the Act, whichever is

applicable, shall be placed under

removal proceedings. However, in a

case where conditional residence was

based on a marriage, removal

proceedings may be terminated and the

alien may be admitted as a returning

resident if the required Form I–751 is

filed jointly, or by the alien alone (if

appropriate), and approved by the

Service. In the case of an alien

entrepreneur, removal proceedings may

be terminated and the alien admitted as

a returning resident if the required Form

I–829 is filed by the alien entrepreneur

and approved by the Service.

99. Part 236 is revised to read as

follows:

PART 236—APPREHENSION AND

DETENTION OF INADMISSIBLE AND

DEPORTABLE ALIENS; REMOVAL OF

ALIENS ORDERED REMOVED

Subpart A—Detention of Aliens Prior to

Order of Removal

Sec.

236.1 Apprehension, custody, and

detention.

236.2 Confined aliens, incompetents, and

minors.

236.3 Detention and release of juveniles.

236.4 Removal of S–5, S–6, and S–7

nonimmigrants.

236.5 Fingerprints and photographs.

236.6–236.9 Reserved.

Subpart B—Family Unity Program

236.10 Description of program.

236.11 Definitions.

236.12 Eligibility.

236.13 Ineligible aliens.

236.14 Filing.

236.15 Voluntary departure and eligibility

for employment.

236.16 Travel outside the United States.

236.17 Eligibility for Federal financial

assistance programs.

236.18 Termination of Family Unity

Program benefits.

Authority: 8 U.S.C. 1103, 1182, 1224, 1225,

1226, 1227, 1362; 8 CFR part 2.

Subpart A—Detention of Aliens Prior to

Order of Removal

§ 236.1 Apprehension, custody, and

detention.

(a) Detainers. The issuance of a

detainer under this section shall be

governed by the provisions of § 287.7 of

this chapter.

(b) Warrant of arrest. (1) In general. At

the time of issuance of the notice to

appear, or at any time thereafter and up

to the time removal proceedings are

completed, the respondent may be

arrested and taken into custody under

the authority of Form I–200, Warrant of

Arrest. A warrant of arrest may be

issued only by those immigration

officers listed in § 287.5(e)(2) of this

chapter and may be served only by

those immigration officers listed in

§ 287.5(e)(3) of this chapter.

(2) If, after the issuance of a warrant

of arrest, a determination is made not to

serve it, any officer authorized to issue

such warrant may authorize its

cancellation.

(c) Custody issues and release

procedures. (1) After the expiration of

the Transition Period Custody Rules

under Public Law 104–208, no alien

described in section 236(c)(1) of the Act

shall be released from custody during

removal proceedings except pursuant to

section 236(c)(2) of the Act.

(2) Any officer authorized to issue a

warrant of arrest may, in the officer’s

discretion, release an alien not

described in section 236(c)(1) of the Act,

under the conditions at section 236(a)(2)

and (3) of the Act; provided that the

alien must demonstrate to the

satisfaction of the officer that such

release would not pose a danger to

property or persons, and that the alien

is likely to appear for any future

proceeding.

(3) When an alien who, having been

arrested and taken into custody, has

been released, such release may be

revoked at any time in the discretion of

the district director, acting district

director, deputy district director,

assistant district director for

investigations, assistant district director

for detention and deportation, or officer

in charge (except foreign), in which

event the alien may be taken into

physical custody and detained. If
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10361

1Arrangements with these countries provide that

U.S. authorities shall notify responsible

representatives within 72 hours of the arrest or

detention of one of their nationals.

2 When Taiwan nationals (who carry ‘‘Republic

of China’’ passports) are detained, notification

should be made to the nearest office of the Taiwan

Economic and Cultural Representative’s Office, the

unofficial entity representing Taiwan’s interests in

the United States.

3British dependencies are also covered by this

agreement. They are: Anguilla, British Virgin

Islands, Hong Kong, Bermuda, Montserrat, and the

Turks and Caicos Islands. Their residents carry

British passports.

4All U.S.S.R. successor states are covered by this

agreement. They are: Armenia, Azerbaijan, Belarus,

Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian

Federation, Tajikistan, Turkmenistan, Ukraine, and

Uzbekistan.

detained, unless a breach has occurred,

any outstanding bond shall be revoked

and canceled.

(4) The provisions of § 103.6 of this

chapter shall apply to any bonds

authorized. Subject to the provisions of

this section, the provisions of § 3.19 of

this chapter shall govern availability to

the respondent of recourse to other

administrative authority for release from

custody.

(5) An immigration judge may not

exercise authority provided in this

section and the review process

described in paragraph (d) of this

section shall not apply with respect to:

(i) Arriving aliens, as described in

§ 1.1(q) of this chapter, including aliens

paroled pursuant to section 212(d)(5) of

the Act, in removal proceedings,

(ii) Aliens described in section

237(a)(4) of the Act, or

(iii) After the expiration of section

303(b)(3) of Public Law 104–208, aliens

described in section 236(c)(1) of the Act.

(d) Appeals from custody decisions.

(1) Application to immigration judge.

After an initial custody determination

by the district director, including the

setting of a bond, the respondent may,

at any time before an order under 8 CFR

part 240 becomes final, request

amelioration of the conditions under

which he or she may be released. Prior

to such final order, and except as

otherwise provided in this chapter, the

immigration judge is authorized to

exercise the authority in section 236 of

the Act to detain the alien in custody,

release the alien, and determine the

amount of bond, if any, under which the

respondent may be released, as

provided in § 3.19 of this chapter. If the

alien has been released from custody, an

application for amelioration of the terms

of release must be filed within 7 days of

release. Once a removal order becomes

administratively final, determinations

regarding custody and bond are made by

the district director.

(2) Application to the district director.

(i) After expiration of the 7-day period

in paragraph (d)(1) of this section, the

respondent may request review by the

district director of the conditions of his

or her release.

(ii) After an order becomes

administratively final, the respondent

may request review by the district

director of the conditions of his or her

release.

(3) Appeal to the Board of

Immigration Appeals. An appeal

relating to bond and custody

determinations may be filed to the

Board of Immigration Appeals in the

following circumstances:

(i) In accordance with § 3.38 of this

chapter, the alien or the Service may

appeal the decision of an immigration

judge pursuant to paragraph (d)(1) of

this section.

(ii) The alien, within 10 days, may

appeal from the district director’s

decision under paragraph (d)(2)(i) of

this section.

(iii) The alien, within 10 days, may

appeal from the district director’s

decision under paragraph (d)(2)(ii) of

this section, except that no appeal shall

be allowed when the Service notifies the

alien that it is ready to execute an order

of removal and takes the alien into

custody for that purpose.

(4) Effect of filing an appeal. The

filing of an appeal from a determination

of an immigration judge or district

director under this paragraph shall not

operate to delay compliance with the

order, nor stay the administrative

proceedings or removal.

(e) Privilege of communication. Every

detained alien shall be notified that he

or she may communicate with the

consular or diplomatic officers of the

country of his or her nationality in the

United States. Existing treaties with the

following countries require immediate

communication with appropriate

consular or diplomatic officers

whenever nationals of the following

countries are detained in removal

proceedings, whether or not requested

by the alien and even if the alien

requests that no communication be

undertaken in his or her behalf. When

notifying consular or diplomatic

officials, Service officers shall not reveal

the fact that any detained alien has

applied for asylum or withholding of

removal.

Albania 1

Antigua

Armenia

Azerbaijan

Bahamas

Barbados

Belarus

Belize

Brunei

Bulgaria

China (People’s Republic of) 2

Costa Rica

Cyprus

Czech Republic

Dominica

Fiji

Gambia, The

Georgia

Ghana

Grenada

Guyana

Hungary

Jamaica

Kazakhstan

Kiribati

Kuwait

Kyrgyzstan

Malaysia

Malta

Mauritius

Moldova

Mongolia

Nigeria

Philippines

Poland

Romania

Russian Federation

St. Kitts/Nevis

St. Lucia

St. Vincent/Grenadines

Seychelles

Sierra Leone

Singapore

Slovak Republic

South Korea

Tajikistan

Tanzania

Tonga

Trinidad/Tobago

Turkmenistan

Tuvalu

Ukraine

United Kingdom 3

U.S.S.R. 4

Uzbekistan

Zambia

(f) Notification to Executive Office for

Immigration Review of change in

custody status. The Service shall notify

the Immigration Court having

administrative control over the Record

of Proceeding of any change in custody

location or of release from, or

subsequent taking into, Service custody

of a respondent/applicant pursuant to

§ 3.19(g) of this chapter.

§ 236.2 Confined aliens, incompetents,

and minors.

(a) Service. If the respondent is

confined, or if he or she is an

incompetent, or a minor under the age

of 14, the notice to appear, and the

warrant of arrest, if issued, shall be

served in the manner prescribed in

§ 239.1 of this chapter upon the person

or persons specified by § 103.5a(c) of

this chapter.

(b) Service custody and cost of

maintenance. An alien confined

because of physical or mental disability

in an institution or hospital shall not be
10362 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

accepted into physical custody by the

Service until an order of removal has

been entered and the Service is ready to

remove the alien. When such an alien is

an inmate of a public or private

institution at the time of the

commencement of the removal

proceedings, expenses for the

maintenance of the alien shall not be

incurred by the Government until he or

she is taken into physical custody by the

Service.

§ 236.3 Detention and release of juveniles.

(a) Juveniles. A juvenile is defined as

an alien under the age of 18 years.

(b) Release. Juveniles for whom bond

has been posted, for whom parole has

been authorized, or who have been

ordered released on recognizance, shall

be released pursuant to the following

guidelines:

(1) Juveniles shall be released, in

order of preference, to:

(i) A parent;

(ii) Legal guardian; or

(iii) An adult relative (brother, sister,

aunt, uncle, grandparent) who is not

presently in Service detention, unless a

determination is made that the

detention of such juvenile is required to

secure his or her timely appearance

before the Service or the Immigration

Court or to ensure the juvenile’s safety

or that of others. In cases where the

parent, legal guardian, or adult relative

resides at a location distant from where

the juvenile is detained, he or she may

secure release at a Service office located

near the parent, legal guardian, or adult

relative.

(2) If an individual specified in

paragraphs (b)(1)(i) through (iii) of this

section cannot be located to accept

custody of a juvenile, and the juvenile

has identified a parent, legal guardian,

or adult relative in Service detention,

simultaneous release of the juvenile and

the parent, legal guardian, or adult

relative shall be evaluated on a

discretionary case-by-case basis.

(3) In cases where the parent or legal

guardian is in Service detention or

outside the United States, the juvenile

may be released to such person as is

designated by the parent or legal

guardian in a sworn affidavit, executed

before an immigration officer or

consular officer, as capable and willing

to care for the juvenile’s well-being.

Such person must execute an agreement

to care for the juvenile and to ensure the

juvenile’s presence at all future

proceedings before the Service or an

immigration judge.

(4) In unusual and compelling

circumstances and in the discretion of

the district director or chief patrol agent,

a juvenile may be released to an adult,

other than those identified in

paragraphs (b)(1)(i) through (iii) of this

section, who executes an agreement to

care for the juvenile’s well-being and to

ensure the juvenile’s presence at all

future proceedings before the Service or

an immigration judge.

(c) Juvenile coordinator. The case of a

juvenile for whom detention is

determined to be necessary should be

referred to the ‘‘Juvenile Coordinator,’’

whose responsibilities should include,

but not be limited to, finding suitable

placement of the juvenile in a facility

designated for the occupancy of

juveniles. These may include juvenile

facilities contracted by the Service, state

or local juvenile facilities, or other

appropriate agencies authorized to

accommodate juveniles by the laws of

the state or locality.

(d) Detention. In the case of a juvenile

for whom detention is determined to be

necessary, for such interim period of

time as is required to locate suitable

placement for the juvenile, whether

such placement is under paragraph (b)

or (c) of this section, the juvenile may

be temporarily held by Service

authorities or placed in any Service

detention facility having separate

accommodations for juveniles.

(e) Refusal of release. If a parent of a

juvenile detained by the Service can be

located, and is otherwise suitable to

receive custody of the juvenile, and the

juvenile indicates a refusal to be

released to his or her parent, the

parent(s) shall be notified of the

juvenile’s refusal to be released to the

parent(s), and shall be afforded an

opportunity to present their views to the

district director, chief patrol agent, or

immigration judge before a custody

determination is made.

(f) Notice to parent of application for

relief. If a juvenile seeks release from

detention, voluntary departure, parole,

or any form of relief from removal,

where it appears that the grant of such

relief may effectively terminate some

interest inherent in the parent-child

relationship and/or the juvenile’s rights

and interests are adverse with those of

the parent, and the parent is presently

residing in the United States, the parent

shall be given notice of the juvenile’s

application for relief, and shall be

afforded an opportunity to present his

or her views and assert his or her

interest to the district director or

immigration judge before a

determination is made as to the merits

of the request for relief.

(g) Voluntary departure. Each

juvenile, apprehended in the immediate

vicinity of the border, who resides

permanently in Mexico or Canada, shall

be informed, prior to presentation of the

voluntary departure form or being

allowed to withdraw his or her

application for admission, that he or she

may make a telephone call to a parent,

close relative, a friend, or to an

organization found on the free legal

services list. A juvenile who does not

reside in Mexico or Canada who is

apprehended shall be provided access to

a telephone and must in fact

communicate either with a parent, adult

relative, friend, or with an organization

found on the free legal services list prior

to presentation of the voluntary

departure form. If such juvenile, of his

or her own volition, asks to contact a

consular officer, and does in fact make

such contact, the requirements of this

section are satisfied.

(h) Notice and request for disposition.

When a juvenile alien is apprehended,

he or she must be given a Form I–770,

Notice of Rights and Disposition. If the

juvenile is less than 14 years of age or

unable to understand the notice, the

notice shall be read and explained to the

juvenile in a language he or she

understands. In the event a juvenile

who has requested a hearing pursuant to

the notice subsequently decides to

accept voluntary departure or is allowed

to withdraw his or her application for

admission, a new Form I–770 shall be

given to, and signed by the juvenile.

§ 236.4 Removal of S–5, S–6, and S–7

nonimmigrants.

(a) Condition of classification. As a

condition of classification and

continued stay in classification

pursuant to section 101(a)(15)(S) of the

Act, nonimmigrants in S classification

must have executed Form I–854, Part B,

Inter-agency Alien Witness and

Informant Record, certifying that they

have knowingly waived their right to a

removal hearing and right to contest,

other than on the basis of an application

for withholding of deportation or

removal, any removal action, including

detention pending deportation or

removal, instituted before lawful

permanent resident status is obtained.

(b) Determination of deportability. (1)

A determination to remove a deportable

alien classified pursuant to section

101(a)(15)(S) of the Act shall be made by

the district director having jurisdiction

over the place where the alien is

located.

(2) A determination to remove such a

deportable alien shall be based on one

or more of the grounds of deportability

listed in section 237 of the Act based on

conduct committed after, or conduct or

a condition not disclosed to the Service

prior to, the alien’s classification as an

S nonimmigrant under section

101(a)(15)(S) of the Act, or for a
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10363

violation of, or failure to adhere to, the

particular terms and conditions of status

in S nonimmigrant classification.

(c) Removal procedures. (1) A district

director who determines to remove an

alien witness or informant in S

nonimmigrant classification shall notify

the Commissioner, the Assistant

Attorney General, Criminal Division,

and the relevant law enforcement

agency in writing to that effect. The

Assistant Attorney General, Criminal

Division, shall concur in or object to

that decision. Unless the Assistant

Attorney General, Criminal Division,

objects within 7 days, he or she shall be

deemed to have concurred in the

decision. In the event of an objection by

the Assistant Attorney General,

Criminal Division, the matter will be

expeditiously referred to the Deputy

Attorney General for a final resolution.

In no circumstances shall the alien or

the relevant law enforcement agency

have a right of appeal from any decision

to remove.

(2) A district director who has

provided notice as set forth in paragraph

(c)(1) of this section and who has been

advised by the Commissioner that the

Assistant Attorney General, Criminal

Division, has not objected shall issue a

Warrant of Removal. The alien shall

immediately be arrested and taken into

custody by the district director initiating

the removal. An alien classified under

the provisions of section 101(a)(15)(S) of

the Act who is determined, pursuant to

a warrant issued by a district director,

to be deportable from the United States

shall be removed from the United States

to his or her country of nationality or

last residence. The agency that

requested the alien’s presence in the

United States shall ensure departure

from the United States and so inform

the district director in whose

jurisdiction the alien has last resided.

The district director, if necessary, shall

oversee the alien’s departure from the

United States and, in any event, shall

notify the Commissioner of the alien’s

departure.

(d) Withholding of removal. An alien

classified pursuant to section

101(a)(15)(S) of the Act who applies for

withholding of removal shall have 10

days from the date the Warrant of

Removal is served upon the alien to file

an application for such relief with the

district director initiating the removal

order. The procedures contained in

§§ 208.2 and 208.16 of this chapter shall

apply to such an alien who applies for

withholding of removal.

(e) Inadmissibility. An alien who

applies for admission under the

provisions of section 101(a)(15)(S) of the

Act who is determined by an

immigration officer not to be eligible for

admission under that section or to be

inadmissible to the United States under

one or more of the grounds of

inadmissibility listed in section 212 of

the Act and which have not been

previously waived by the Commissioner

will be taken into custody. The district

director having jurisdiction over the

port-of-entry shall follow the

notification procedures specified in

paragraph (c)(1) of this section. A

district director who has provided such

notice and who has been advised by the

Commissioner that the Assistant

Attorney General, Criminal Division,

has not objected shall remove the alien

without further hearing. An alien may

not contest such removal, other than by

applying for withholding of removal.

§ 236.5 Fingerprints and photographs.

Every alien 14 years of age or older

against whom proceedings based on

deportability under section 237 of the

Act are commenced under this part by

service of a notice to appear shall be

fingerprinted and photographed. Such

fingerprints and photographs shall be

made available to Federal, State, and

local law enforcement agencies upon

request to the district director or chief

patrol agent having jurisdiction over the

alien’s record. Any such alien,

regardless of his or her age, shall be

photographed and/or fingerprinted if

required by any immigration officer

authorized to issue a notice to appear.

Every alien 14 years of age or older who

is found to be inadmissible to the

United States and ordered removed by

an immigration judge shall be

fingerprinted, unless during the

preceding year he or she has been

fingerprinted at an American consular

office.

§§ 236.6—236.9 [Reserved]

Subpart B—Family Unity Program

§ 236.10 Description of program.

The family unity program implements

the provisions of section 301 of the

Immigration Act of 1990, Public Law

101–649. This Act is referred to in this

subpart as ‘‘IMMACT 90’’.

§ 236.11 Definitions.

In this subpart, the term:

Eligible immigrant means a qualified

immigrant who is the spouse or

unmarried child of a legalized alien.

Legalized alien means an alien who:

(1) Is a temporary or permanent

resident under section 210 or 245A of

the Act; or

(2) Is a permanent resident under

section 202 of the Immigration Reform

and Control Act of 1986 (Cuban/Haitian

Adjustment).

§ 236.12 Eligibility.

(a) General. An alien who is not a

lawful permanent resident is eligible to

apply for benefits under the Family

Unity Program if he or she establishes:

(1) That he or she entered the United

States before May 5, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), and has

been continuously residing in the

United States since that date; and

(2) That on May 5, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), he or she

was the spouse or unmarried child of a

legalized alien, and that he or she has

been eligible continuously since that

time for family-sponsored second

preference immigrant status under

section 203(a)(2) of the Act based on the

same relationship.

(b) Legalization application pending

as of May 5, 1988 or December 1, 1988.

An alien whose legalization application

was filed on or before May 5, 1988 (in

the case of a relationship to a legalized

alien described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), but not

approved until after that date will be

treated as having been a legalized alien

as of May 5, 1988 (in the case of a

relationship to a legalized alien

described in subsection (b)(2)(B) or

(b)(2)(C) of section 301 of IMMACT 90),

or as of December 1, 1988 (in the case

of a relationship to a legalized alien

described in subsection (b)(2)(A) of

section 301 of IMMACT 90), for

purposes of the Family Unity Program.

§ 236.13 Ineligible aliens.

The following categories of aliens are

ineligible for benefits under the Family

Unity Program:

(a) An alien who is deportable under

any paragraph in section 237(a) of the

Act, except paragraphs (1)(A), (1)(B),

(1)(C), and (3)(A); provided that an alien

who is deportable under section

237(a)(1)(A) of such Act is also

ineligible for benefits under the Family

Unity Program if deportability is based
10364 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

upon a ground of inadmissibility

described in section 212(a)(2) or (3) of

the Act;

(b) An alien who has been convicted

of a felony or three or more

misdemeanors in the United States; or

(c) An alien described in section

241(b)(3)(B) of the Act.

§ 236.14 Filing.

(a) General. An application for

voluntary departure under the Family

Unity Program must be filed at the

service center having jurisdiction over

the alien’s place of residence. A Form I–

817, Application for Voluntary

Departure under the Family Unity

Program, must be filed with the correct

fee required in § 103.7(b)(1) of this

chapter and the required supporting

documentation. A separate application

with appropriate fee and documentation

must be filed for each person claiming

eligibility.

(b) Decision. The service center

director has sole jurisdiction to

adjudicate an application for benefits

under the Family Unity Program. The

director will provide the applicant with

specific reasons for any decision to deny

an application. Denial of an application

may not be appealed. An applicant who

believes that the grounds for denial have

been overcome may submit another

application with the appropriate fee and

documentation.

(c) Referral of denied cases for

consideration of issuance of notice to

appear. If an application is denied, the

case will be referred to the district

director with jurisdiction over the

alien’s place of residence for

consideration of whether to issue a

notice to appear. After an initial denial,

an applicant’s case will not be referred

for issuance of a notice to appear until

90 days from the date of the initial

denial, to allow the alien the

opportunity to file a new Form I–817

application in order to attempt to

overcome the basis of the denial.

However, if the applicant is found not

to be eligible for benefits under

§ 236.13(b), the Service reserves the

right to issue a notice to appear at any

time after the initial denial.

§ 236.15 Voluntary departure and eligibility

for employment.

(a) Authority. Voluntary departure

under this section implements the

provisions of section 301 of IMMACT

90, and authority to grant voluntary

departure under the family unity

program derives solely from that

section. Voluntary departure under the

family unity program shall be governed

solely by this section, notwithstanding

the provisions of section 240B of the Act

and 8 CFR part 240.

(b) Children of legalized aliens.

Children of legalized aliens residing in

the United States, who were born during

an authorized absence from the United

States of mothers who are currently

residing in the United States under

voluntary departure pursuant to the

Family Unity Program, may be granted

voluntary departure under section 301

of IMMACT 90 for a period of 2 years.

(c) Duration of voluntary departure.

An alien whose application for benefits

under the Family Unity Program is

approved will receive voluntary

departure for 2 years, commencing with

the date of approval of the application.

Voluntary departure under this section

shall be considered effective from the

date on which the application was

properly filed.

(d) Employment authorization. An

alien granted benefits under the Family

Unity Program is authorized to be

employed in the United States and may

apply for an employment authorization

document on Form I–765, Application

for Employment Authorization. The

application may be filed concurrently

with Form I–817. The application must

be accompanied by the correct fee

required by § 103.7(b)(1) of this chapter.

The validity period of the employment

authorization will coincide with the

period of voluntary departure.

(e) Extension of voluntary departure.

An application for an extension of

voluntary departure under the Family

Unity Program must be filed by the alien

on Form I–817 along with the correct fee

required in § 103.7(b)(1) of this chapter

and the required supporting

documentation. The submission of a

copy of the previous approval notice

will assist in shortening the processing

time. An extension may be granted if the

alien continues to be eligible for benefits

under the Family Unity Program.

However, an extension may not be

approved if the legalized alien is a

lawful permanent resident, and a

petition for family-sponsored immigrant

status has not been filed in behalf of the

applicant. In such case the Service will

notify the alien of the reason for the

denial and afford him or her the

opportunity to file another Form I–817

once the petition, Form I–130, has been

filed in behalf of him or her. No

charging document will be issued for a

period of 90 days.

(f) Supporting documentation for

extension application. Supporting

documentation need not include

documentation provided with the

previous application(s). The extension

application need only include changes

to previous applications and evidence of

continuing eligibility since the date of

the prior approval.

§ 236.16 Travel outside the United States.

An alien granted Family Unity

Program benefits who intends to travel

outside the United States temporarily

must apply for advance authorization

using Form I–131, Application for

Travel Document. The authority to grant

an application for advance authorization

for an alien granted Family Unity

Program benefits rests solely with the

district director. An alien who is

granted advance authorization and

returns to the United States in

accordance with such authorization,

and who is found not to be inadmissible

under section 212(a)(2) or (3) of the Act,

shall be inspected and admitted in the

same immigration status as the alien

had at the time of departure, and shall

be provided the remainder of the

voluntary departure period previously

granted under the Family Unity

Program.

§ 236.17 Eligibility for Federal financial

assistance programs.

An alien granted Family Unity

Program benefits based on a relationship

to a legalized alien as defined in

§ 236.11 is ineligible for public welfare

assistance in the same manner and for

the same period as the legalized alien

who is ineligible for such assistance

under section 245A(h) or 210(f) of the

Act, respectively.

§ 236. 18 Termination of Family Unity

Program benefits.

(a) Grounds for termination. The

Service may terminate benefits under

the Family Unity Program whenever the

necessity for the termination comes to

the attention of the Service. Such

grounds will exist in situations

including, but not limited to, those in

which:

(1) A determination is made that

Family Unity Program benefits were

acquired as the result of fraud or willful

misrepresentation of a material fact;

(2) The beneficiary commits an act or

acts which render him or her

inadmissible as an immigrant or who

are ineligible for benefits under the

Family Unity Program;

(3) The legalized alien upon whose

status benefits under the Family Unity

Program were based loses his or her

legalized status;

(4) The beneficiary is the subject of a

final order of exclusion, deportation, or

removal issued subsequent to the grant

of Family Unity benefits unless such

final order is based on entry without

inspection; violation of status; or failure

to comply with section 265 of the Act;
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10365

or inadmissibility at the time of entry

other than inadmissibility pursuant to

section 212(a)(2) or 212(a)(3) of the Act,

regardless of whether the facts giving

rise to such ground occurred before or

after the benefits were granted; or

(5) A qualifying relationship to a

legalized alien no longer exists.

(b) Notice procedure. Notice of intent

to terminate and of the grounds thereof

shall be served pursuant to the

provisions of § 103.5a of this chapter.

The alien shall be given 30 days to

respond to the notice and may submit

to the Service additional evidence in

rebuttal. Any final decision of

termination shall also be served

pursuant to the provisions of § 103.5a of

this chapter. Nothing in this section

shall preclude the Service from

commencing exclusion or deportation

proceedings prior to termination of

Family Unity Program benefits.

(c) Effect of termination. Termination

of benefits under the Family Unity

Program, other than as a result of a final

order of removal, shall render the alien

amenable to removal proceedings under

section 240 of the Act. If benefits are

terminated, the period of voluntary

departure under this section is also

terminated.

PART 237—[REMOVED AND

RESERVED]

100. Part 237 is removed and

reserved.

101. Part 238 is added to read as

follows:

PART 238—EXPEDITED REMOVAL OF

AGGRAVATED FELONS

Sec.

238.1 Proceedings under section 238(b) of

the Act.

Authority: 8 U.S.C. 1228; 8 CFR part 2.

§ 238.1 Proceedings under section 238(b)

of the Act.

(a) Definitions. As used in this part:

Deciding Service officer means a

district director, chief patrol agent, or

another immigration officer designated

by a district director or chief patrol

agent, who is not the same person as the

issuing Service officer.

Issuing Service officer means any

Service officer listed in § 239.1 of this

chapter as authorized to issue notices to

appear.

(b) Preliminary consideration and

Notice of Intent to Issue a Final

Administrative Deportation Order;

commencement of proceedings.—(1)

Basis of Service charge. An issuing

Service officer shall cause to be served

upon an alien a Form I–851, Notice of

Intent to Issue a Final Administrative

Deportation Order (Notice of Intent), if

the officer is satisfied that there is

sufficient evidence, based upon

questioning of the alien by an

immigration officer and upon any other

evidence obtained, to support a finding

that the individual:

(i) Is an alien;

(ii) Has not been lawfully admitted for

permanent residence, or has conditional

permanent resident status under section

216 of the Act;

(iii) Has been convicted (as defined in

section 101(a)(48) of the Act and as

demonstrated by any of the documents

or records listed in § 3.41 of this

chapter) of an aggravated felony and

such conviction has become final; and

(iv) Is deportable under section

237(a)(2)(A)(iii) of the Act, including an

alien who has neither been admitted nor

paroled, but who is conclusively

presumed deportable under section

237(a)(2)(A)(iii) by operation of section

238(c) of the Act (‘‘Presumption of

Deportability’’).

(2) Notice. (i) Removal proceedings

under section 238(b) of the Act shall

commence upon personal service of the

Notice of Intent upon the alien, as

prescribed by §§ 103.5a(a)(2) and

103.5a(c)(2) of this chapter. The Notice

of Intent shall set forth the preliminary

determinations and inform the alien of

the Service’s intention to issue a Form

I–851A, Final Administrative Removal

Order, without a hearing before an

immigration judge. This Notice shall

constitute the charging document. The

Notice of Intent shall include allegations

of fact and conclusions of law. It shall

advise that the alien: has the privilege

of being represented, at no expense to

the Government, by counsel of the

alien’s choosing, as long as counsel is

authorized to practice in deportation

proceedings; may inspect the evidence

supporting the Notice of Intent; and may

rebut the charges within 10 calendar

days after service of such Notice (or 13

calendar days if service of the Notice

was by mail).

(ii) The Notice of Intent also shall

advise the alien that he or she may

designate in writing, within the rebuttal

period, the country to which he or she

chooses to be deported in accordance

with section 241 of the Act, in the event

that a Final Administrative Removal

Order is issued, and that the Service

will honor such designation only to the

extent permitted under the terms,

limitations, and conditions of section

241 of the Act.

(iii) The Service must determine that

the person served with the Notice of

Intent is the person named on the

notice.

(iv) The Service shall provide the

alien with a list of available free legal

services programs qualified under 8 CFR

part 3 and organizations recognized

pursuant to 8 CFR part 292, located

within the district or sector where the

Notice of Intent is issued.

(v) The Service must either provide

the alien with a written translation of

the Notice of Intent or explain the

contents of the Notice of Intent to the

alien in the alien’s native language or in

a language that the alien understands.

(c) Alien’s response. (1) Time for

response. The alien will have 10

calendar days from service of the Notice

of Intent, or 13 calendar days if service

is by mail, to file a response to the

Notice of Intent. In the response, the

alien may: designate his or her choice of

country for removal; submit a written

response rebutting the allegations

supporting the charge and/or requesting

the opportunity to review the

Government’s evidence; and/or request

in writing an extension of time for

response, stating the specific reasons

why such an extension is necessary.

Alternatively, the alien may, in writing,

choose to accept immediate issuance of

a Final Administrative Removal Order.

The deciding Service officer may extend

the time for response for good cause

shown. A request for extension of time

for response will not automatically

extend the period for the response. The

alien will be permitted to file a response

outside the prescribed period only if the

deciding Service officer permits it. The

alien must send the response to the

deciding Service officer at the address

provided in the Notice of Intent.

(2) Nature of rebuttal or request to

review evidence. (i) If an alien chooses

to rebut the allegations contained in the

Notice of Intent, the alien’s written

response must indicate which finding(s)

are being challenged and should be

accompanied by affidavit(s),

documentary information, or other

specific evidence supporting the

challenge.

(ii) If an alien’s written response

requests the opportunity to review the

Government’s evidence, the Service

shall serve the alien with a copy of the

evidence in the record of proceeding

upon which the Service is relying to

support the charge. The alien may,

within 10 calendar days following

service of the Government’s evidence

(13 calendar days if service is by mail),

furnish a final response in accordance

with paragraph (c)(1) of this section. If

the alien’s final response is a rebuttal of

the allegations, such a final response

should be accompanied by affidavit(s),

documentary information, or other
10366 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

specific evidence supporting the

challenge.

(d) Determination by deciding Service

officer. (1) No response submitted or

concession of deportability. If the

deciding Service officer does not receive

a timely response and the evidence in

the record of proceeding establishes

deportability by clear, convincing, and

unequivocal evidence, or if the alien

concedes deportability, then the

deciding Service officer shall issue and

cause to be served upon the alien a

Final Administrative Removal Order

that states the reasons for the

deportation decision. The alien may, in

writing, waive the 14-day waiting

period before execution of the final

order of removal provided in a

paragraph (f) of this section.

(2) Response submitted. (i)

Insufficient rebuttal; no genuine issue of

material fact. If the alien timely submits

a rebuttal to the allegations, but the

deciding Service officer finds that

deportability is established by clear,

convincing, and unequivocal evidence

in the record of proceeding, the

deciding Service officer shall issue and

cause to be served upon the alien a

Final Administrative Removal Order

that states the reasons for the decision

of deportability.

(ii) Additional evidence required. (A)

If the deciding Service officer finds that

the record of proceeding, including the

alien’s timely rebuttal, raises a genuine

issue of material fact regarding the

preliminary findings, the deciding

Service officer may either obtain

additional evidence from any source,

including the alien, or cause to be

issued a notice to appear to initiate

removal proceedings under section 240

of the Act. The deciding Service officer

may also obtain additional evidence

from any source, including the alien, if

the deciding Service officer deems that

such additional evidence may aid the

officer in the rendering of a decision.

(B) If the deciding Service officer

considers additional evidence from a

source other than the alien, that

evidence shall be made a part of the

record of proceeding, and shall be

provided to the alien. If the alien elects

to submit a response to such additional

evidence, such response must be filed

with the Service within 10 calendar

days of service of the additional

evidence (or 13 calendar days if service

is by mail). If the deciding Service

officer finds, after considering all

additional evidence, that deportability

is established by clear, convincing, and

unequivocal evidence in the record of

proceeding, the deciding Service officer

shall issue and cause to be served upon

the alien a Final Administrative

Removal Order that states the reasons

for the decision of deportability.

(iii) Conversion to proceedings under

section 240 of the Act. If the deciding

Service officer finds that the alien is not

amenable to removal under section 238

of the Act, the deciding Service officer

shall terminate the expedited

proceedings under section 238 of the

Act and shall, where appropriate, cause

to be issued a notice to appear for the

purpose of initiating removal

proceedings before an immigration

judge under section 240 of the Act.

(3) Termination of proceedings by

deciding Service officer. Only the

deciding Service officer may terminate

proceedings under section 238 of the

Act, in accordance with this section.

(e) Proceedings commenced under

section 240 of the Act. In any

proceeding commenced under section

240 of the Act which is based on

deportability under section 237 of the

Act, if it appears that the respondent

alien is subject to removal pursuant to

section 238 of the Act, the immigration

judge may, upon the Service’s request,

terminate the case and, upon such

termination, the Service may commence

administrative proceedings under

section 238 of the Act. However, in the

absence of any such request, the

immigration judge shall complete the

proceeding commenced under section

240 of the Act.

(f) Executing final removal order of

deciding Service officer. (1) Time of

execution. Upon the issuance of a Final

Administrative Removal Order, the

Service shall issue a Warrant of

Removal in accordance with § 241.2 of

this chapter; such warrant shall be

executed no sooner than 14 calendar

days after the date the Final

Administrative Removal Order is

issued, unless the alien knowingly,

voluntarily, and in writing waives the

14-day period.

(2) Country to which alien is to be

removed. The deciding Service officer

shall designate the country of removal

in the manner prescribed by section 241

of the Act.

(g) Arrest and detention. At the time

of issuance of a Notice of Intent or at

any time thereafter and up to the time

the alien becomes the subject of a

Warrant of Removal, the alien may be

arrested and taken into custody under

the authority of a Warrant of Arrest

issued by an officer listed in

§ 287.5(e)(2) of this chapter. The

decision of the Service concerning

custody or bond shall not be

administratively appealable during

proceedings initiated under section 238

of the Act and this part.

(h) Record of proceeding. The Service

shall maintain a record of proceeding

for judicial review of the Final

Administrative Removal Order sought

by any petition for review. The record

of proceeding shall include, but not

necessarily be limited to: the charging

document (Notice of Intent); the Final

Administrative Removal Order

(including any supplemental

memorandum of decision); the alien’s

response, if any; all evidence in support

of the charge; and any admissible

evidence, briefs, or documents

submitted by either party respecting

deportability. The executed duplicate of

the Notice of Intent in the record of

proceedings shall be retained as

evidence that the individual upon

whom the notice for the proceeding was

served was, in fact, the alien named in

the notice.

102. Part 239 is added to read as

follows:

PART 239—INITIATION OF REMOVAL

PROCEEDINGS

Sec.

239.1 Notice to appear.

239.2 Cancellation of notice to appear.

239.3 Effect of filing notice to appear.

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

CFR part 2.

§ 239.1 Notice to appear.

(a) Commencement. Every removal

proceeding conducted under section

240 of the Act to determine the

deportability or inadmissibility of an

alien is commenced by the filing of a

notice to appear with the Immigration

Court. Any immigration officer

performing an inspection of an arriving

alien at a port-of-entry may issue a

notice to appear to such an alien. In

addition, the following officers, or

officers acting in such capacity, may

issue a notice to appear:

(1) District directors (except foreign);

(2) Deputy district directors (except

foreign);

(3) Assistant district directors for

investigations;

(4) Deputy assistant district directors

for investigations;

(5) Assistant district directors for

deportation;

(6) Deputy assistant district directors

for deportation;

(7) Assistant district directors for

examinations;

(8) Deputy assistant district directors

for examinations;

(9) Officers in charge (except foreign);

(10) Assistant officers in charge

(except foreign);

(11) Chief patrol agents;

(12) Deputy chief patrol agents;

(13) Associate chief patrol agents;
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10367

(14) Assistant chief patrol agents;

(15) Patrol agents in charge;

(16) The Assistant Commissioner,

Investigations;

(17) Service center directors;

(18) Deputy center directors;

(19) Assistant center directors for

examinations;

(20) Supervisory asylum officers;

(21) Institutional Hearing Program

directors; or

(22) Deputy Institutional Hearing

Program directors.

(b) Service of notice to appear.

Service of the notice to appear shall be

in accordance with section 239 of the

Act.

§ 239.2 Cancellation of notice to appear.

(a) Any officer authorized by

§ 239.1(a) to issue a notice to appear

may cancel such notice prior to

jurisdiction vesting with the

immigration judge pursuant to § 3.14 of

this chapter provided the officer is

satisfied that:

(1) The respondent is a national of the

United States;

(2) The respondent is not deportable

or inadmissible under immigration

laws;

(3) The respondent is deceased;

(4) The respondent is not in the

United States;

(5) The notice was issued for the

respondent’s failure to file a timely

petition as required by section 216(c) of

the Act, but his or her failure to file a

timely petition was excused in

accordance with section 216(d)(2)(B) of

the Act;

(6) The notice to appear was

improvidently issued, or

(7) Circumstances of the case have

changed after the notice to appear was

issued to such an extent that

continuation is no longer in the best

interest of the government.

(b) A notice to appear issued pursuant

to section 235(b)(3) of the Act may be

canceled under provisions in

paragraphs (a)(2) and (a)(6) of this

section only by the issuing officer,

unless it is impracticable for the issuing

officer to cancel the notice.

(c) Motion to dismiss. After

commencement of proceedings pursuant

to § 3.14 of this chapter, Service

counsel, or any officer enumerated in

paragraph (a) of this section may move

for dismissal of the matter on the

grounds set out under paragraph (a) of

this section. Dismissal of the matter

shall be without prejudice to the alien

or the Service.

(d) Motion for remand. After

commencement of the hearing, Service

counsel, or any officer enumerated in

paragraph (a) of this section may move

for remand of the matter to district

jurisdiction on the ground that the

foreign relations of the United States are

involved and require further

consideration. Remand of the matter

shall be without prejudice to the alien

or the Service.

(e) Warrant of arrest. When a notice

to appear is canceled or proceedings are

terminated under this section any

outstanding warrant of arrest is

canceled.

(f) Termination of removal

proceedings by immigration judge. An

immigration judge may terminate

removal proceedings to permit the alien

to proceed to a final hearing on a

pending application or petition for

naturalization when the alien has

established prima facie eligibility for

naturalization and the matter involves

exceptionally appealing or

humanitarian factors; in every other

case, the removal hearing shall be

completed as promptly as possible

notwithstanding the pendency of an

application for naturalization during

any state of the proceedings.

§ 239.3 Effect of filing notice to appear.

The filing of a notice to appear shall

have no effect in determining periods of

unlawful presence as defined in section

212(a)(9)(B) of the Act.

§§ 240.1–240.20 [Redesignated as

§§ 244.3–244.22]

103. Sections 240.1 through 240.20

are redesignated as §§ 244.3 through

244.22.

104. Part 240 is revised to read as

follows:

PART 240—PROCEEDINGS TO

DETERMINE REMOVABILITY OF

ALIENS IN THE UNITED STATES

Subpart A—Removal Proceedings

Sec.

240.1 Immigration judges.

240.2 Service counsel.

240.3 Representation by counsel.

240.4 Incompetent respondents.

240.5 Interpreter.

240.6 Postponement and adjournment of

hearing.

240.7 Evidence in removal proceedings

under section 240 of the Act.

240.8 Burdens of proof in removal

proceedings.

240.9 Contents of record.

240.10 Hearing.

240.11 Ancillary matters, applications.

240.12 Decision of the immigration judge.

240.13 Notice of decision.

240.14 Finality of order.

240.15 Appeals.

240.16 Application of new procedures or

termination of proceedings in old

proceedings pursuant to section 309(c) of

Public Law 104–208.

240.17–240.19 [Reserved]

Subpart B—Cancellation of Removal

240.20 Cancellation of removal and

adjustment of status under section 240A

of the Act.

240.21–240.24 [Reserved]

Subpart C—Voluntary Departure

240.25 Voluntary departure—authority of

the Service.

240.26 Voluntary departure—authority of

the Executive Office for Immigration

Review.

240.27–240.29 [Reserved]

Subpart D—Exclusion of Aliens (for

proceedings commenced prior to April 1,

1997)

240.30 Proceedings prior to April 1, 1997.

240.31 Authority of immigration judges.

240.32 Hearing.

240.33 Applications for asylum or

withholding of deportation.

240.34 Renewal of application for

adjustment of status under section 245 of

the Act.

240.35 Decision of the immigration judge;

notice to the applicant.

240.36 Finality of order.

240.37 Appeals.

240.38 Fingerprinting of excluded aliens.

240.39 [Reserved]

Subpart E—Proceedings to determine

deportability of aliens in the United States:

Hearing and Appeal (for proceedings

commenced prior to April 1, 1997)

240.40 Proceedings commenced prior to

April 1, 1997.

240.41 Immigration judges.

240.42 Representation by counsel.

240.43 Incompetent respondents.

240.44 Interpreter.

240.45 Postponement and adjournment of

hearing.

240.46 Evidence.

240.47 Contents of record.

240.48 Hearing.

240.49 Ancillary matters, applications.

240.50 Decision of the immigration judge.

240.51 Notice of decision.

240.52 Finality of order.

240.53 Appeals.

240.54 [Reserved]

Subpart F—Suspension of Deportation and

Voluntary Departure (for proceedings

commenced prior to April 1, 1997)

240.55 Proceedings commenced prior to

April 1, 1997.

240.56 Application.

240.57 Extension of time to depart.

Subpart G—Civil Penalties for Failure to

Depart [Reserved]

Authority: 8 U.S.C. 1103; 1182, 1186a,

1224, 1225, 1226, 1227, 1251, 1252 note,

1252a, 1252b, 1362; 8 CFR part 2.

Subpart A—Removal Proceedings

§ 240.1 Immigration judges.

(a) Authority. In any removal

proceeding pursuant to section 240 of

the Act, the immigration judge shall

have the authority to: determine

removability pursuant to section
10368 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

240(a)(1) of the Act; to make decisions,

including orders of removal as provided

by section 240(c)(1)(A) of the Act; to

determine applications under sections

208, 212(a)(2)(F), 212(a)(6)(F)(ii),

212(a)(9)(B)(v), 212(d)(11), 212(d)(12),

212(g), 212(h), 212(i), 212(k),

237(a)(1)(E)(iii), 237(a)(1)(H),

237(a)(3)(C)(ii), 240A(a) and (b), 240B,

245, and 249 of the Act; to order

withholding of removal pursuant to

section 241(b)(3) of the Act; and to take

any other action consistent with

applicable law and regulations as may

be appropriate. In determining cases

referred for further inquiry, immigration

judges shall have the powers and

authority conferred upon them by the

Act and this chapter. Subject to any

specific limitation prescribed by the Act

and this chapter, immigration judges

shall also exercise the discretion and

authority conferred upon the Attorney

General by the Act as is appropriate and

necessary for the disposition of such

cases. An immigration judge may certify

his or her decision in any case under

section 240 of the Act to the Board of

Immigration Appeals when it involves

an unusually complex or novel question

of law or fact. Nothing contained in this

part shall be construed to diminish the

authority conferred on immigration

judges under sections 101(b)(4) and 103

of the Act.

(b) Withdrawal and substitution of

immigration judges. The immigration

judge assigned to conduct the hearing

shall at any time withdraw if he or she

deems himself or herself disqualified. If

an immigration judge becomes

unavailable to complete his or her

duties, another immigration judge may

be assigned to complete the case. The

new immigration judge shall familiarize

himself or herself with the record in the

case and shall state for the record that

he or she has done so.

(c) Conduct of hearing. The

immigration judge shall receive and

consider material and relevant evidence,

rule upon objections, and otherwise

regulate the course of the hearing.

§ 240.2 Service counsel.

(a) Authority. Service counsel shall

present on behalf of the government

evidence material to the issues of

deportability or inadmissibility and any

other issues that may require

disposition by the immigration judge.

The duties of the Service counsel

include, but are not limited to, the

presentation of evidence and the

interrogation, examination, and crossexamination of the respondent or other

witnesses. Nothing contained in this

subpart diminishes the authority of an

immigration judge to conduct

proceedings under this part. The Service

counsel is authorized to appeal from a

decision of the immigration judge

pursuant to § 3.38 of this chapter and to

move for reopening or reconsideration

pursuant to § 3.23 of this chapter.

(b) Assignment. In a removal

proceeding, the Service shall assign an

attorney to each case within the

provisions of § 240.10(d), and to each

case in which an unrepresented

respondent is incompetent or is under

18 years of age, and is not accompanied

by a guardian, relative, or friend. In a

case in which the removal proceeding

would result in an order of removal, the

Service shall assign an attorney to each

case in which a respondent’s nationality

is in issue. A Service attorney shall be

assigned in every case in which the

Commissioner approves the submission

of non-record information under

§ 240.11(a)(3). In his or her discretion,

whenever he or she deems such

assignment necessary or advantageous,

the General Counsel may assign a

Service attorney to any other case at any

stage of the proceeding.

§ 240.3 Representation by counsel.

The respondent may be represented at

the hearing by an attorney or other

representative qualified under 8 CFR

part 292.

§ 240.4 Incompetent respondents.

When it is impracticable for the

respondent to be present at the hearing

because of mental incompetency, the

attorney, legal representative, legal

guardian, near relative, or friend who

was served with a copy of the notice to

appear shall be permitted to appear on

behalf of the respondent. If such a

person cannot reasonably be found or

fails or refuses to appear, the custodian

of the respondent shall be requested to

appear on behalf of the respondent.

§ 240.5 Interpreter.

Any person acting as an interpreter in

a hearing before an immigration judge

under this part shall be sworn to

interpret and translate accurately,

unless the interpreter is an employee of

the United States Government, in which

event no such oath shall be required.

§ 240.6 Postponement and adjournment of

hearing.

After the commencement of the

hearing, the immigration judge may

grant a reasonable adjournment either at

his or her own instance or, for good

cause shown, upon application by the

respondent or the Service.

§ 240.7 Evidence in removal proceedings

under section 240 of the Act.

(a) Use of prior statements. The

immigration judge may receive in

evidence any oral or written statement

that is material and relevant to any issue

in the case previously made by the

respondent or any other person during

any investigation, examination, hearing,

or trial.

(b) Testimony. Testimony of witnesses

appearing at the hearing shall be under

oath or affirmation administered by the

immigration judge.

(c) Depositions. The immigration

judge may order the taking of

depositions pursuant to § 3.35 of this

chapter.

§ 240.8 Burdens of proof in removal

proceedings.

(a) Deportable aliens. A respondent

charged with deportability shall be

found to be removable if the Service

proves by clear and convincing

evidence that the respondent is

deportable as charged.

(b) Arriving aliens. In proceedings

commenced upon a respondent’s arrival

in the Untied States or after the

revocation or expiration of parole, the

respondent must prove that he or she is

clearly and beyond a doubt entitled to

be admitted to the United States and is

not inadmissible as charged.

(c) Aliens present in the United States

without being admitted or paroled. In

the case of a respondent charged as

being in the United States without being

admitted or paroled, the Service must

first establish the alienage of the

respondent. Once alienage has been

established, unless the respondent

demonstrates by clear and convincing

evidence that he or she is lawfully in

the United States pursuant to a prior

admission, the respondent must prove

that he or she is clearly and beyond a

doubt entitled to be admitted to the

United States and is not inadmissible as

charged.

(d) Relief from removal. The

respondent shall have the burden of

establishing that he or she is eligible for

any requested benefit or privilege and

that it should be granted in the exercise

of discretion. If the evidence indicates

that one or more of the grounds for

mandatory denial of the application for

relief may apply, the alien shall have

the burden of proving by a

preponderance of the evidence that such

grounds do not apply.

§ 240.9 Contents of record.

The hearing before the immigration

judge, including the testimony, exhibits,

applications, proffers, and requests, the

immigration judge’s decision, and all
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10369

written orders, motions, appeals, briefs,

and other papers filed in the

proceedings shall constitute the record

in the case. The hearing shall be

recorded verbatim except for statements

made off the record with the permission

of the immigration judge. In his or her

discretion, the immigration judge may

exclude from the record any arguments

made in connection with motions,

applications, requests, or objections, but

in such event the person affected may

submit a brief.

§ 240.10 Hearing.

(a) Opening. In a removal proceeding,

the immigration judge shall:

(1) Advise the respondent of his or

her right to representation, at no

expense to the government, by counsel

of his or her own choice authorized to

practice in the proceedings and require

the respondent to state then and there

whether he or she desires

representation;

(2) Advise the respondent of the

availability of free legal services

provided by organizations and attorneys

qualified under 8 CFR part 3 and

organizations recognized pursuant to

§ 292.2 of this chapter, located in the

district where the removal hearing is

being held;

(3) Ascertain that the respondent has

received a list of such programs, and a

copy of appeal rights;

(4) Advise the respondent that he or

she will have a reasonable opportunity

to examine and object to the evidence

against him or her, to present evidence

in his or her own behalf and to crossexamine witnesses presented by the

government (but the respondent shall

not be entitled to examine such national

security information as the government

may proffer in opposition to the

respondent’s admission to the United

States or to an application by the

respondent for discretionary relief);

(5) Place the respondent under oath;

(6) Read the factual allegations and

the charges in the notice to appear to the

respondent and explain them in nontechnical language; and

(7) Enter the notice to appear as an

exhibit in the Record of Proceeding.

(b) Public access to hearings. Removal

hearings shall be open to the public,

except that the immigration judge may,

in his or her discretion, close

proceedings as provided in § 3.27 of this

chapter.

(c) Pleading by respondent. The

immigration judge shall require the

respondent to plead to the notice to

appear by stating whether he or she

admits or denies the factual allegations

and his or her removability under the

charges contained therein. If the

respondent admits the factual

allegations and admits his or her

removability under the charges and the

immigration judge is satisfied that no

issues of law or fact remain, the

immigration judge may determine that

removability as charged has been

established by the admissions of the

respondent. The immigration judge

shall not accept an admission of

removability from an unrepresented

respondent who is incompetent or

under the age of 18 and is not

accompanied by an attorney or legal

representative, a near relative, legal

guardian, or friend; nor from an officer

of an institution in which a respondent

is an inmate or patient. When, pursuant

to this paragraph, the immigration judge

does not accept an admission of

removability, he or she shall direct a

hearing on the issues.

(d) Issues of removability. When

removability is not determined under

the provisions of paragraph (c) of this

section, the immigration judge shall

request the assignment of an Service

counsel, and shall receive evidence as to

any unresolved issues, except that no

further evidence need be received as to

any facts admitted during the pleading.

The alien shall provide a court certified

copy of a Judicial Recommendation

Against Deportation (JRAD) to the

immigration judge when such

recommendation will be the basis of

denying any charge(s) brought by the

Service in the proceedings against the

alien. No JRAD is effective against a

charge of deportability under former

section 241(a)(11) of the Act or if the

JRAD was granted on or after November

29, 1990.

(e) Additional charges in removal

hearings. At any time during the

proceeding, additional or substituted

charges of inadmissibility and/or

deportability and/or factual allegations

may be lodged by the Service in writing.

The alien in removal proceedings shall

be served with a copy of these

additional charges and allegations. The

immigration judge shall read the

additional factual allegations and

charges to the alien and explain them to

him or her. The immigration judge shall

advise the alien, if he or she is not

represented by counsel, that the alien

may be so represented, and that he or

she may be given a reasonable

continuance to respond to the

additional factual allegations and

charges. Thereafter, the provision of

§ 240.6(b) relating to pleading shall

apply to the additional factual

allegations and charges.

(f) Country of removal. The

immigration judge shall notify the alien

that if he or she is finally ordered

removed, the country of removal will in

the first instance be directed pursuant to

section 241(b) of the Act to the country

designated by the alien, unless section

241(b)(2)(C) of the Act applies, and shall

afford him or her an opportunity then

and there to make such designation. The

immigration judge shall then specify

and state for the record the country, or

countries in the alternative, to which

the alien’s removal will be directed

pursuant to section 241(b) of the Act if

the country of his or her designation

will not accept him or her into its

territory, or fails to furnish timely notice

of acceptance, or if the alien declines to

designate a country.

(g) In the event that the Service is

unable to remove the alien to the

specified or alternative country or

countries, the Service may remove the

alien to any other country as permitted

by section 241(b) of the Act.

§ 240.11 Ancillary matters, applications.

(a) Creation of the status of an alien

lawfully admitted for permanent

residence. (1) In a removal proceeding,

an alien may apply to the immigration

judge for cancellation of removal under

section 240A of the Act, adjustment of

status under section 245 of the Act,

adjustment of status under section 1 of

the Act of November 2, 1966 (as

modified by section 606 of Public Law

104–132) or under section 101 or 104 of

the Act of October 28, 1977, or for the

creation of a record of lawful admission

for permanent residence under section

249 of the Act. The application shall be

subject to the requirements of § 240.20,

and 8 CFR parts 245 and 249. The

approval of any application made to the

immigration judge under section 245 of

the Act by an alien spouse (as defined

in section 216(g)(1) of the Act) or by an

alien entrepreneur (as defined in section

216A(f)(1) of the Act) shall result in the

alien’s obtaining the status of lawful

permanent resident on a conditional

basis in accordance with the provisions

of section 216 or 216A of the Act,

whichever is applicable. However, the

Petition to Remove the Conditions on

Residence required by section 216(c) of

the Act, or the Petition by Entrepreneur

to Remove Conditions required by

section 216A(c) of the Act shall be made

to the director in accordance with 8 CFR

part 216.

(2) In conjunction with any

application for creation of status of an

alien lawfully admitted for permanent

residence made to an immigration

judge, if the alien is inadmissible under

any provision of section 212(a) of the

Act, and believes that he or she meets

the eligibility requirements for a waiver

of the ground of inadmissibility, he or
10370 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

she may apply to the immigration judge

for such waiver. The immigration judge

shall inform the alien of his or her

apparent eligibility to apply for any of

the benefits enumerated in this chapter

and shall afford the alien an opportunity

to make application during the hearing.

(3) In exercising discretionary power

when considering an application for

status as a permanent resident under

this chapter, the immigration judge may

consider and base the decision on

information not contained in the record

and not made available for inspection

by the alien, provided the

Commissioner has determined that such

information is relevant and is classified

under the applicable Executive Order as

requiring protection from unauthorized

disclosure in the interest of national

security. Whenever the immigration

judge believes that he or she can do so

while safeguarding both the information

and its source, the immigration judge

should inform the alien of the general

nature of the information in order that

the alien may have an opportunity to

offer opposing evidence. A decision

based in whole or in part on such

classified information shall state that

the information is material to the

decision.

(b) Voluntary departure. The alien

may apply to the immigration judge for

voluntary departure in lieu of removal

pursuant to section 240B of the Act and

subpart C of this part.

(c) Applications for asylum and

withholding of removal. (1) If the alien

expresses fear of persecution or harm

upon return to any of the countries to

which the alien might be removed

pursuant to § 240.10(f), and the alien

has not previously filed an application

for asylum or withholding of removal

that has been referred to the

immigration judge by an asylum officer

in accordance with § 208.14 of this

chapter, the immigration judge shall:

(i) Advise the alien that he or she may

apply for asylum in the United States or

withholding of removal to those

countries;

(ii) Make available the appropriate

application forms; and

(iii) Advise the alien of the privilege

of being represented by counsel at no

expense to the government and of the

consequences, pursuant to section

208(d)(6) of the Act, of knowingly filing

a frivolous application for asylum. The

immigration judge shall provide to the

alien a list of persons who have

indicated their availability to represent

aliens in asylum proceedings on a pro

bono basis.

(2) An application for asylum or

withholding of removal must be filed

with the Immigration Court, pursuant to

§ 208.4(c) of this chapter. Upon receipt

of an application that has not been

referred by an asylum officer, the

Immigration Court shall forward a copy

to the Department of State pursuant to

§ 208.11 of this chapter and shall

calendar the case for a hearing. The

reply, if any, from the Department of

State, unless classified under the

applicable Executive Order, shall be

given to both the alien and to the

Service counsel representing the

government.

(3) Applications for asylum and

withholding of removal so filed will be

decided by the immigration judge

pursuant to the requirements and

standards established in 8 CFR part 208

of this chapter after an evidentiary

hearing to resolve factual issues in

dispute. An evidentiary hearing

extending beyond issues related to the

basis for a mandatory denial of the

application pursuant to § 208.14 or

§ 208.16 of this chapter is not necessary

once the immigration judge has

determined that such a denial is

required.

(i) Evidentiary hearings on

applications for asylum or withholding

of removal will be open to the public

unless the alien expressly requests that

the hearing be closed pursuant to § 3.27

of this chapter. The immigration judge

shall inquire whether the alien requests

such closure.

(ii) Nothing in this section is intended

to limit the authority of the immigration

judge to properly control the scope of

any evidentiary hearing.

(iii) During the removal hearing, the

alien shall be examined under oath on

his or her application and may present

evidence and witnesses in his or her

own behalf. The alien has the burden of

establishing that he or she is a refugee

as defined in section 101(a)(42) of the

Act pursuant to the standards set forth

in § 208.13 of this chapter.

(iv) Service counsel may call

witnesses and present evidence for the

record, including information classified

under the applicable Executive Order,

provided the immigration judge or the

Board has determined that such

information is relevant to the hearing.

When the immigration judge receives

such classified information, he or she

shall inform the alien. The agency that

provides the classified information to

the immigration judge may provide an

unclassified summary of the

information for release to the alien,

whenever it determines it can do so

consistently with safeguarding both the

classified nature of the information and

its sources. The summary should be as

detailed as possible, in order that the

alien may have an opportunity to offer

opposing evidence. A decision based in

whole or in part on such classified

information shall state whether such

information is material to the decision.

(4) The decision of an immigration

judge to grant or deny asylum or

withholding of removal shall be

communicated to the alien and to the

Service counsel. An adverse decision

shall state why asylum or withholding

of removal was denied.

(d) Application for relief under

sections 237(a)(1)(H) and

237(a)(1)(E)(iii) of the Act. The

respondent may apply to the

immigration judge for relief from

removal under sections 237(a)(1)(H) and

237(a)(1)(E)(iii) of the Act.

(e) General. An application under this

section shall be made only during the

hearing and shall not be held to

constitute a concession of alienage or

deportability in any case in which the

respondent does not admit his or her

alienage or deportability. However,

nothing in this section shall prohibit the

Service from using information supplied

in an application for asylum or

withholding of deportation or removal

submitted to the Service on or after

January 4, 1995, as the basis for issuance

of a charging document or to establish

alienage or deportability in a case

referred to an immigration judge under

§ 208.14(b) of this chapter. The alien

shall have the burden of establishing

that he or she is eligible for any

requested benefit or privilege and that it

should be granted in the exercise of

discretion. Nothing contained in this

section is intended to foreclose the

respondent from applying for any

benefit or privilege that he or she

believes himself or herself eligible to

receive in proceedings under this part.

Nothing in this section is intended to

limit the Attorney General’s authority to

remove an alien to any country

permitted by section 241(b) of the Act.

(f) Fees. The alien shall not be

required to pay a fee on more than one

application within paragraphs (a) and

(c) of this section, provided that the

minimum fee imposed when more than

one application is made shall be

determined by the cost of the

application with the highest fee.

§ 240.12 Decision of the immigration

judge.

(a) Contents. The decision of the

immigration judge may be oral or

written. The decision of the immigration

judge shall include a finding as to

inadmissibility or deportability. The

formal enumeration of findings is not

required. The decision shall also

contain reasons for granting or denying

the request. The decision shall be
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10371

concluded with the order of the

immigration judge.

(b) Summary decision.

Notwithstanding the provisions of

paragraph (a) of this section, in any case

where inadmissibility or deportability is

determined on the pleadings pursuant

to § 240.10(b) and the respondent does

not make an application under § 240.11,

the alien is statutorily ineligible for

relief, or the respondent applies for

voluntary departure only and the

immigration judge grants the

application, the immigration judge may

enter a summary decision or, if

voluntary departure is granted, a

summary decision with an alternate

order of removal.

(c) Order of the immigration judge.

The order of the immigration judge shall

direct the respondent’s removal, or the

termination of the proceedings, or such

other disposition of the case as may be

appropriate. When removal is ordered,

the immigration judge shall specify the

country, or countries in the alternate, to

which respondent’s removal shall be

directed. The immigration judge is

authorized to issue orders in the

alternative or in combination as he or

she may deem necessary.

§ 240.13 Notice of decision.

(a) Written decision. A written

decision shall be served upon the

respondent and the Service counsel,

together with the notice referred to in

§ 3.3 of this chapter. Service by mail is

complete upon mailing.

(b) Oral decision. An oral decision

shall be stated by the immigration judge

in the presence of the respondent and

the Service counsel, if any, at the

conclusion of the hearing. A copy of the

summary written order shall be

furnished at the request of the

respondent or the Service counsel.

(c) Summary decision. When the

immigration judge renders a summary

decision as provided in § 240.12(b), he

or she shall serve a copy thereof upon

the respondent and the Service counsel

at the conclusion of the hearing.

(d) Decision to remove. If the

immigration judge decides that the

respondent is removable and orders the

respondent to be removed, the

immigration judge shall advise the

respondent of such decision, and of the

consequences for failure to depart under

the order of removal, including civil and

criminal penalties described at sections

274D and 243 of the Act. Unless appeal

from the decision is waived, the

respondent shall be furnished with

Form EOIR–26, Notice of Appeal, and

advised of the provisions of § 240.15.

§ 240.14 Finality of order.

The order of the immigration judge

shall become final in accordance with

§ 3.39 of this chapter.

§ 240.15 Appeals.

Pursuant to 8 CFR part 3, an appeal

shall lie from a decision of an

immigration judge to the Board of

Immigration Appeals, except that no

appeal shall lie from an order of

removal entered in absentia. The

procedures regarding the filing of a

Form EOIR 26, Notice of Appeal, fees,

and briefs are set forth in §§ 3.3, 3.31,

and 3.38 of this chapter. An appeal shall

be filed within 30 calendar days after

the mailing of a written decision, the

stating of an oral decision, or the service

of a summary decision. The filing date

is defined as the date of receipt of the

Notice of Appeal by the Board of

Immigration Appeals. The reasons for

the appeal shall be stated in the Notice

of Appeal in accordance with the

provisions of § 3.3(b) of this chapter.

Failure to do so may constitute a ground

for dismissal of the appeal by the Board

pursuant to § 3.1(d)(1–a) of this chapter.

§ 240.16 Application of new procedures or

termination of proceedings in old

proceedings pursuant to section 309(c) of

Public Law 104–208.

The Attorney General shall have the

sole discretion to apply the provisions

of section 309(c) of Public Law 104–208,

which provides for the application of

new removal procedures to certain cases

in exclusion or deportation proceedings

and for the termination of certain cases

in exclusion or deportation proceedings

and initiation of new removal

proceedings. The Attorney General’s

application of the provisions of section

309(c) shall become effective upon

publication of a notice in the Federal

Register. However, if the Attorney

General determines, in the exercise of

his or her discretion, that the delay

caused by publication would adversely

affect the interests of the United States

or the effective enforcement of the

immigration laws, the Attorney

General’s application shall become

effective immediately upon issuance,

and shall be published in the Federal

Register as soon as practicable

thereafter.

§§ 240.17—240.19 [Reserved]

Subpart B—Cancellation of removal

§ 240.20 Cancellation of removal and

adjustment of status under section 240A of

the Act.

(a) Jurisdiction. An application for the

exercise of discretion under section

240A of the Act shall be submitted on

Form EOIR–42, Application for

Cancellation of Removal, to the

Immigration Court having

administrative control over the Record

of Proceeding of the underlying removal

proceeding under section 240 of the Act.

The application must be accompanied

by payment of the filing fee as set forth

in § 103.7(b) of this chapter or a request

for a fee waiver.

(b) Filing the application. The

application may be filed only with the

Immigration Court after jurisdiction has

vested pursuant to § 3.14 of this chapter.

§§ 240.21—240.24 [Reserved]

Subpart C—Voluntary Departure

§ 240.25 Voluntary departure—authority of

the Service.

(a) Authorized officers. The authority

contained in section 240B(a) of the Act

to permit aliens to depart voluntarily

from the United States may be exercised

in lieu of being subject to proceedings

under section 240 of the Act by district

directors, assistant district directors for

investigations, assistant district

directors for examinations, officers in

charge, chief patrol agents, service

center directors, and assistant center

directors for examinations.

(b) Conditions. The Service may

attach to the granting of voluntary

departure any conditions it deems

necessary to ensure the alien’s timely

departure from the United States,

including the posting of a bond,

continued detention pending departure,

and removal under safeguards. The

alien shall be required to present to the

Service, for inspection and

photocopying, his or her passport or

other travel documentation sufficient to

assure lawful entry into the country to

which the alien is departing. The

Service may hold the passport or

documentation for sufficient time to

investigate its authenticity. A voluntary

departure order permitting an alien to

depart voluntarily shall inform the alien

of the penalties under section 240B(d) of

the Act.

(c) Decision. The authorized officer, in

his or her discretion, shall specify the

period of time permitted for voluntary

departure, and may grant extensions

thereof, except that the total period

allowed, including any extensions, shall

not exceed 120 days. Every decision

regarding voluntary departure shall be

communicated in writing on Form I–

210, Notice of Action—Voluntary

Departure. Voluntary departure may not

be granted unless the alien requests

such voluntary departure and agrees to

its terms and conditions.

(d) Application. Any alien who

believes himself or herself to be eligible
10372 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

for voluntary departure under this

section may apply therefor at any office

of the Service. After the commencement

of removal proceedings, the application

may be communicated through the

Service counsel. If the Service agrees to

voluntary departure after proceedings

have commenced, it may either:

(1) Join in a motion to terminate the

proceedings, and if the proceedings are

terminated, grant voluntary departure;

or

(2) Join in a motion asking the

immigration judge to permit voluntary

departure in accordance with § 240.26.

(e) Appeals. An appeal shall not lie

from a denial of an application for

voluntary departure under this section,

but the denial shall be without

prejudice to the alien’s right to apply to

the immigration judge for voluntary

departure in accordance with § 240.26

or for relief from removal under any

provision of law.

(f) Revocation. If, subsequent to the

granting of an application for voluntary

departure under this section, it is

ascertained that the application should

not have been granted, that grant may be

revoked without advance notice by any

officer authorized to grant voluntary

departure under § 240.25(a). Such

revocation shall be communicated in

writing, citing the statutory basis for

revocation. No appeal shall lie from

revocation.

§ 240.26 Voluntary departure—authority of

the Executive Office for Immigration

Review.

(a) Eligibility: general. An alien

previously granted voluntary departure

under section 240B of the Act, including

by the Service under § 240.25, and who

fails to depart voluntarily within the

time specified, shall thereafter be

ineligible, for a period of ten years, for

voluntary departure or for relief under

sections 240A, 245, 248, and 249 of the

Act.

(b) Prior to completion of removal

proceedings.—(1) Grant by the

immigration judge. (i) An alien may be

granted voluntary departure by an

immigration judge pursuant to section

240B(a) of the Act only if the alien:

(A) Makes such request prior to or at

the master calendar hearing at which

the case is initially calendared for a

merits hearing;

(B) Makes no additional requests for

relief (or if such requests have been

made, such requests are withdrawn

prior to any grant of voluntary departure

pursuant to this section);

(C) Concedes removability;

(D) Waives appeal of all issues; and

(E) Has not been convicted of a crime

described in section 101(a)(43) of the

Act and is not deportable under section

237(a)(4).

(ii) The judge may not grant voluntary

departure under section 240B(a) of the

Act beyond 30 days after the master

calendar hearing at which the case is

initially calendared for a merits hearing,

except pursuant to a stipulation under

paragraph (b)(2) of this section.

(2) Stipulation. At any time prior to

the completion of removal proceedings,

the Service counsel may stipulate to a

grant of voluntary departure under

section 240B(a) of the Act.

(3) Conditions. (i) The judge may

impose such conditions as he or she

deems necessary to ensure the alien’s

timely departure from the United States,

including the posting of a voluntary

departure bond to be canceled upon

proof that the alien has departed the

United States within the time specified.

The alien shall be required to present to

the Service, for inspection and

photocopying, his or her passport or

other travel documentation sufficient to

assure lawful entry into the country to

which the alien is departing, unless:

(A) A travel document is not

necessary to return to his or her native

country or to which country the alien is

departing; or

(B) The document is already in the

possession of the Service.

(ii) The Service may hold the passport

or documentation for sufficient time to

investigate its authenticity. If such

documentation is not immediately

available to the alien, but the

immigration judge is satisfied that the

alien is making diligent efforts to secure

it, voluntary departure may be granted

for a period not to exceed 120 days,

subject to the condition that the alien

within 60 days must secure such

documentation and present it to the

Service. The Service in its discretion

may extend the period within which the

alien must provide such documentation.

If the documentation is not presented

within the 60-day period or any

extension thereof, the voluntary

departure order shall vacate

automatically and the alternate order of

removal will take effect, as if in effect

on the date of issuance of the

immigration judge order.

(c) At the conclusion of the removal

proceedings.—(1) Required findings. An

immigration judge may grant voluntary

departure at the conclusion of the

removal proceedings under section

240B(b) of the Act, if he or she finds

that:

(i) The alien has been physically

present in the United States for period

of at least one year preceding the date

the Notice to Appear was served under

section 239(a) of the Act;

(ii) The alien is, and has been, a

person of good moral character for at

least five years immediately preceding

the application;

(iii) The alien has not been convicted

of a crime described in section

101(a)(43) of the Act and is not

deportable under section 237(a)(4); and

(iv) The alien has established by clear

and convincing evidence that the alien

has the means to depart the United

States and has the intention to do so.

(2) Travel documentation. Except as

otherwise provided in paragraph (b)(3)

of this section, the clear and convincing

evidence of the means to depart shall

include in all cases presentation by the

alien of a passport or other travel

documentation sufficient to assure

lawful entry into the country to which

the alien is departing. The Service shall

have full opportunity to inspect and

photocopy the documentation, and to

challenge its authenticity or sufficiency

before voluntary departure is granted.

(3) Conditions. The judge may impose

such conditions as he or she deems

necessary to ensure the alien’s timely

departure from the United States. In all

cases under section 240B(b) of the Act,

the alien shall be required to post a

voluntary departure bond, in an amount

necessary to ensure that the alien

departs within the time specified, but in

no case less than $500. The voluntary

departure bond shall be posted with the

district director within 5 business days

of the immigration judge’s order

granting voluntary departure, and the

district director may, at his or her

discretion, hold the alien in custody

until the bond is posted. If the bond is

not posted within 5 business days, the

voluntary departure order shall vacate

automatically and the alternate order of

removal will take effect on the following

day. In order for the bond to be

canceled, the alien must provide proof

of departure to the district director.

(d) Alternate order of removal. Upon

granting a request made for voluntary

departure either prior to the completion

of proceedings or at the conclusion of

proceedings, the immigration judge

shall also enter an alternate order or

removal.

(e) Periods of time. If voluntary

departure is granted prior to the

completion of removal proceedings, the

immigration judge may grant a period

not to exceed 120 days. If voluntary

departure is granted at the conclusion of

proceedings, the immigration judge may

grant a period not to exceed 60 days.

(f) Extension of time to depart.

Authority to extend the time within

which to depart voluntarily specified

initially by an immigration judge or the

Board is within the sole jurisdiction of
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10373

the district director. An immigration

judge or the Board may reinstate

voluntary departure in a removal

proceeding that has been reopened for a

purpose other than solely making an

application for voluntary departure if

reopening was granted prior to the

expiration of the original period of

voluntary departure. In no event can the

total period of time, including any

extension, exceed 120 days or 60 days

as set forth in section 240B of the Act.

(g) Administrative Appeals. No appeal

shall lie regarding the length of a period

of voluntary departure (as distinguished

from issues of whether to grant

voluntary departure).

(h) Reinstatement of voluntary

departure. An immigration judge or the

Board may reinstate voluntary departure

in a removal proceeding that has been

reopened for a purpose other than solely

making application for voluntary

departure, if reopening was granted

prior to the expiration of the original

period of voluntary departure. In no

event can the total period of time,

including any extension, exceed 120

days or 60 days as set forth in section

240B of the Act and paragraph (a) of this

section.

§§ 240.27–240.29 [Reserved]

Subpart D—Exclusion of Aliens (for

proceedings commenced prior to April

1, 1997)

§ 240.30 Proceedings prior to April 1, 1997.

Subpart D of 8 CFR part 240 applies

to exclusion proceedings commenced

prior to April 1, 1997, pursuant to the

former section 236 of the Act. An

exclusion proceeding is commenced by

the filing of Form I–122 with the

Immigration Court, and an alien is

considered to be in exclusion

proceedings only upon such filing. All

references to the Act contained in this

subpart are references to the Act in

effect prior to April 1, 1997.

§ 240.31 Authority of immigration judges.

In determining cases referred for

further inquiry as provided in section

235 of the Act, immigration judges shall

have the powers and authority conferred

upon them by the Act and this chapter.

Subject to any specific limitation

prescribed by the Act and this chapter,

immigration judges shall also exercise

the discretion and authority conferred

upon the Attorney General by the Act as

is appropriate and necessary for the

disposition of such cases.

§ 240.32 Hearing.

(a) Opening. Exclusion hearings shall

be closed to the public, unless the alien

at his or her own instance requests that

the public, including the press, be

permitted to attend; in that event, the

hearing shall be open, provided that the

alien states for the record that he or she

is waiving the requirement in section

236 of the Act that the inquiry shall be

kept separate and apart from the public.

When the hearing is to be open,

depending upon physical facilities,

reasonable limitation may be placed

upon the number in attendance at any

one time, with priority being given to

the press over the general public. The

immigration judge shall ascertain

whether the applicant for admission is

the person to whom Form I–122 was

previously delivered by the examining

immigration officer as provided in 8

CFR part 235; enter a copy of such form

in evidence as an exhibit in the case;

inform the applicant of the nature and

purpose of the hearing; advise him or

her of the privilege of being represented

by an attorney of his or her own choice

at no expense to the Government, and

of the availability of free legal services

programs qualified under 8 CFR part 3

and organizations recognized pursuant

to § 292.2 of this chapter located in the

district where his or her exclusion

hearing is to be held; and shall ascertain

that the applicant has received a list of

such programs; and request him or her

to ascertain then and there whether he

or she desires representation; advise

him or her that he or she will have a

reasonable opportunity to present

evidence in his or her own behalf, to

examine and object to evidence against

him or her, and to cross-examine

witnesses presented by the Government;

and place the applicant under oath.

(b) Procedure. The immigration judge

shall receive and adduce material and

relevant evidence, rule upon objections,

and otherwise regulate the course of the

hearing.

(c) Attorney for the Service. The

Service shall assign an attorney to each

case in which an applicant’s nationality

is in issue and may assign an attorney

to any case in which such assignment is

deemed necessary or advantageous. The

duties of the Service counsel include,

but are not limited to, the presentation

of evidence and the interrogation,

examination, and cross-examination of

the applicant and other witnesses.

Nothing contained in this section

diminishes the authority of an

immigration judge to conduct

proceedings under this part.

(d) Depositions. The procedures

specified in § 240.48(e) shall apply.

(e) Record. The hearing before the

immigration judge, including the

testimony, exhibits, applications,

proffers, and requests, the immigration

judge’s decision, and all written orders,

motions, appeals, and other papers filed

in the proceeding shall constitute the

record in the case. The hearing shall be

recorded verbatim except for statements

made off the record with the permission

of the immigration judge.

§ 240.33 Applications for asylum or

withholding of deportation.

(a) If the alien expresses fear of

persecution or harm upon return to his

or her country of origin or to a country

to which the alien may be deported after

a determination of excludability from

the United States pursuant to this

subpart, and the alien has not been

referred to the immigration judge by an

asylum officer in accordance with

§ 208.14(b) of this chapter, the

immigration judge shall:

(1) Advise the alien that he or she

may apply for asylum in the United

States or withholding of deportation to

that other country; and

(2) Make available the appropriate

application forms.

(b) An application for asylum or

withholding of deportation must be

filed with the Immigration Court,

pursuant to § 208.4(c) of this chapter.

Upon receipt of an application that has

not been referred by an asylum officer,

the Immigration Court shall forward a

copy to the Department of State

pursuant to § 208.11 of this chapter and

shall calendar the case for a hearing.

The reply, if any, from the Department

of State, unless classified under the

applicable Executive Order, shall be

given to both the applicant and to the

Service counsel representing the

government.

(c) Applications for asylum or

withholding of deportation so filed will

be decided by the immigration judge

pursuant to the requirements and

standards established in 8 CFR part 208

after an evidentiary hearing that is

necessary to resolve material factual

issues in dispute. An evidentiary

hearing extending beyond issues related

to the basis for a mandatory denial of

the application pursuant to § 208.13(c)

of this chapter is not necessary once the

immigration judge has determined that

such denial is required.

(1) Evidentiary hearings on

applications for asylum or withholding

of deportation will be closed to the

public unless the applicant expressly

requests that it be open pursuant to

§ 236.3 of this chapter.

(2) Nothing in this section is intended

to limit the authority of the immigration

judge properly to control the scope of

any evidentiary hearing.

(3) During the exclusion hearing, the

applicant shall be examined under oath

on his or her application and may
10374 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

present evidence and witnesses on his

or her own behalf. The applicant has the

burden of establishing that he or she is

a refugee as defined in section

101(a)(42) of the Act pursuant to the

standard set forth in § 208.13 of this

chapter.

(4) The Service counsel for the

government may call witnesses and

present evidence for the record,

including information classified under

the applicable Executive Order,

provided the immigration judge or the

Board has determined that such

information is relevant to the hearing.

The applicant shall be informed when

the immigration judge receives such

classified information. The agency that

provides the classified information to

the immigration judge may provide an

unclassified summary of the

information for release to the applicant

whenever it determines it can do so

consistently with safeguarding both the

classified nature of the information and

its source. The summary should be as

detailed as possible, in order that the

applicant may have an opportunity to

offer opposing evidence. A decision

based in whole or in part on such

classified information shall state that

such information is material to the

decision.

(d) The decision of an immigration

judge to grant or deny asylum or

withholding of deportation shall be

communicated to the applicant and to

the Service counsel for the government.

An adverse decision will state why

asylum or withholding of deportation

was denied.

§ 240.34 Renewal of application for

adjustment of status under section 245 of

the Act.

An adjustment application by an alien

paroled under section 212(d)(5) of the

Act, which has been denied by the

district director, may be renewed in

exclusion proceedings under section

236 of the Act (as in effect prior to April

1, 1997) before an immigration judge

under the following two conditions:

first, the denied application must have

been properly filed subsequent to the

applicant’s earlier inspection and

admission to the United States; and

second, the applicant’s later absence

from and return to the United States

must have been under the terms of an

advance parole authorization on Form

I–512 granted to permit the applicant’s

absence and return to pursue the

previously filed adjustment application.

§ 240.35 Decision of the immigration

judge; notice to the applicant.

(a) Decision. The immigration judge

shall inform the applicant of his or her

decision in accordance with § 3.37 of

this chapter.

(b) Advice to alien ordered excluded.

An alien ordered excluded shall be

furnished with Form I–296, Notice to

Alien Ordered Excluded by Immigration

Judge, at the time of an oral decision by

the immigration judge or upon service

of a written decision.

(c) Holders of refugee travel

documents. Aliens who are the holders

of valid unexpired refugee travel

documents may be ordered excluded

only if they are found to be inadmissible

under section 212(a)(2), 212(a)(3), or

212(a)(6)(E) of the Act, and it is

determined that on the basis of the acts

for which they are inadmissible there

are compelling reasons of national

security or public order for their

exclusion. If the immigration judge

finds that the alien is inadmissible but

determines that there are no compelling

reasons of national security or public

order for exclusion, the immigration

judge shall remand the case to the

district director for parole.

§ 240.36 Finality of order.

The decision of the immigration judge

shall become final in accordance with

§ 3.37 of this chapter.

§ 240.37 Appeals.

Except for temporary exclusions

under section 235(c) of the Act, an

appeal from a decision of an

Immigration Judge under this part may

be taken by either party pursuant to

§ 3.38 of this chapter.

§ 240.38 Fingerprinting of excluded aliens.

Every alien 14 years of age or older

who is excluded from admission to the

United States by an immigration judge

shall be fingerprinted, unless during the

preceding year he or she has been

fingerprinted at an American consular

office.

§ 240.39 [Reserved]

Subpart E—Proceedings to Determine

Deportability of Aliens in the United

States: Hearing and Appeal (for

proceedings commenced prior to April

1, 1997)

§ 240.40 Proceedings commenced prior to

April 1, 1997.

Subpart E of 8 CFR part 240 applies

only to deportation proceedings

commenced prior to April 1, 1997. A

deportation proceeding is commenced

by the filing of Form I–221 (Order to

Show Cause) with the Immigration

Court, and an alien is considered to be

in deportation proceedings only upon

such filing, except in the case of an

alien admitted to the United States

under the provisions of section 217 of

the Act. All references to the Act

contained in this subpart pertain to the

Act as in effect prior to April 1, 1997.

§ 240.41 Immigration judges.

(a) Authority. In any proceeding

conducted under this part the

immigration judge shall have the

authority to determine deportability and

to make decisions, including orders of

deportation, as provided by section

242(b) and 242B of the Act; to reinstate

orders of deportation as provided by

section 242(f) of the Act; to determine

applications under sections 208, 212(k),

241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245

and 249 of the Act; to determine the

country to which an alien’s deportation

will be directed in accordance with

section 243(a) of the Act; to order

temporary withholding of deportation

pursuant to section 243(h) of the Act;

and to take any other action consistent

with applicable law and regulations as

may be appropriate. An immigration

judge may certify his or her decision in

any case to the Board of Immigration

Appeals when it involves an unusually

complex or novel question of law or

fact. Nothing contained in this part shall

be construed to diminish the authority

conferred on immigration judges under

section 103 of the Act.

(b) Withdrawal and substitution of

immigration judges. The immigration

judge assigned to conduct the hearing

shall at any time withdraw if he or she

deems himself or herself disqualified. If

an immigration judge becomes

unavailable to complete his or her

duties within a reasonable time, or if at

any time the respondent consents to a

substitution, another immigration judge

may be assigned to complete the case.

The new immigration judge shall

familiarize himself or herself with the

record in the case and shall state for the

record that he or she has done so.

§ 240.42 Representation by counsel.

The respondent may be represented at

the hearing by an attorney or other

representative qualified under 8 CFR

part 292.

§ 240.43 Incompetent respondents.

When it is impracticable for the

respondent to be present at the hearing

because of mental incompetency, the

guardian, near relative, or friend who

was served with a copy of the order to

show cause shall be permitted to appear

on behalf of the respondent. If such a

person cannot reasonably be found or

fails or refuses to appear, the custodian

of the respondent shall be requested to

appear on behalf of the respondent.
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§ 240.44 Interpreter.

Any person acting as interpreter in a

hearing before an immigration judge

under this part shall be sworn to

interpret and translate accurately,

unless the interpreter is an employee of

the United States Government, in which

event no such oath shall be required.

§ 240.45 Postponement and adjournment

of hearing.

After the commencement of the

hearing, the immigration judge may

grant a reasonable adjournment either at

his or her own instance or, for good

cause shown, upon application by the

respondent or the Service.

§ 240.46 Evidence.

(a) Sufficiency. A determination of

deportability shall not be valid unless it

is found by clear, unequivocal, and

convincing evidence that the facts

alleged as grounds for deportation are

true.

(b) Use of prior statements. The

immigration judge may receive in

evidence any oral or written statement

that is material and relevant to any issue

in the case previously made by the

respondent or any other person during

any investigation, examination, hearing,

or trial.

(c) Testimony. Testimony of witnesses

appearing at the hearing shall be under

oath or affirmation administered by the

immigration judge.

(d) Depositions. The immigration

judge may order the taking of

depositions pursuant to § 3.35 of this

chapter.

§ 240.47 Contents of record.

The hearing before the immigration

judge, including the testimony, exhibits,

applications, proffers, and requests, the

immigration judge’s decision, and all

written orders, motions, appeals, briefs,

and other papers filed in the

proceedings shall constitute the record

in the case. The hearing shall be

recorded verbatim except for statements

made off the record with the permission

of the immigration judge. In his or her

discretion, the immigration judge may

exclude from the record any arguments

made in connection with motions,

applications, requests, or objections, but

in such event the person affected may

submit a brief.

§ 240.48 Hearing.

(a) Opening. The immigration judge

shall advise the respondent of his or her

right to representation, at no expense to

the Government, by counsel of his or

her own choice authorized to practice in

the proceedings and require him or her

to state then and there whether he or

she desires representation; advise the

respondent of the availability of free

legal services programs qualified under

8 CFR part 3 and organizations

recognized pursuant to § 292.2 of this

chapter, located in the district where the

deportation hearing is being held;

ascertain that the respondent has

received a list of such programs, and a

copy of Form I–618, Written Notice of

Appeal Rights; advise the respondent

that he or she will have a reasonable

opportunity to examine and object to

the evidence against him or her, to

present evidence in his or her own

behalf and to cross-examine witnesses

presented by the Government; place the

respondent under oath; read the factual

allegations and the charges in the order

to show cause to the respondent and

explain them in nontechnical language,

and enter the order to show cause as an

exhibit in the record. Deportation

hearings shall be open to the public,

except that the immigration judge may,

in his or her discretion and for the

purpose of protecting witnesses,

respondents, or the public interest,

direct that the general public or

particular individuals shall be excluded

from the hearing in any specific case.

Depending upon physical facilities,

reasonable limitation may be placed

upon the number in attendance at any

one time, with priority being given to

the press over the general public.

(b) Pleading by respondent. The

immigration judge shall require the

respondent to plead to the order to show

cause by stating whether he or she

admits or denies the factual allegations

and his or her deportability under the

charges contained therein. If the

respondent admits the factual

allegations and admits his or her

deportability under the charges and the

immigration judge is satisfied that no

issues of law or fact remain, the

immigration judge may determine that

deportability as charged has been

established by the admissions of the

respondent. The immigration judge

shall not accept an admission of

deportability from an unrepresented

respondent who is incompetent or

under age 16 and is not accompanied by

a guardian, relative, or friend; nor from

an officer of an institution in which a

respondent is an inmate or patient.

When, pursuant to this paragraph, the

immigration judge may not accept an

admission of deportability, he or she

shall direct a hearing on the issues.

(c) Issues of deportability. When

deportability is not determined under

the provisions of paragraph (b) of this

section, the immigration judge shall

request the assignment of a Service

counsel, and shall receive evidence as to

any unresolved issues, except that no

further evidence need be received as to

any facts admitted during the pleading.

The respondent shall provide a court

certified copy of a Judicial

Recommendation Against Deportation

(JRAD) to the immigration judge when

such recommendation will be the basis

of denying any charge(s) brought by the

Service in the proceedings against the

respondent. No JRAD is effective against

a charge of deportability under section

241(a)(11) of the Act or if the JRAD was

granted on or after November 29, 1990.

(d) Additional charges. The Service

may at any time during a hearing lodge

additional charges of deportability,

including factual allegations, against the

respondent. Copies of the additional

factual allegations and charges shall be

submitted in writing for service on the

respondent and entry as an exhibit in

the record. The immigration judge shall

read the additional factual allegations

and charges to the respondent and

explain them to him or her. The

immigration judge shall advise the

respondent if he or she is not

represented by counsel that he or she

may be so represented and also that he

or she may have a reasonable time

within which to meet the additional

factual allegations and charges. The

respondent shall be required to state

then and there whether he or she desires

a continuance for either of these

reasons. Thereafter, the provisions of

paragraph (b) of this section shall apply

to the additional factual allegations and

lodged charges.

§ 240.49 Ancillary matters, applications.

(a) Creation of the status of an alien

lawfully admitted for permanent

residence. The respondent may apply to

the immigration judge for suspension of

deportation under section 244(a) of the

Act; for adjustment of status under

section 245 of the Act, or under section

1 of the Act of November 2, 1966, or

under section 101 or 104 of the Act of

October 28, 1977; or for the creation of

a record of lawful admission for

permanent residence under section 249

of the Act. The application shall be

subject to the requirements of 8 CFR

parts 240, 245, and 249. The approval of

any application made to the

immigration judge under section 245 of

the Act by an alien spouse (as defined

in section 216(g)(1) of the Act) or by an

alien entrepreneur (as defined in section

216A(f)(1) of the Act), shall result in the

alien’s obtaining the status of lawful

permanent resident on a conditional

basis in accordance with the provisions

of section 216 or 216A of the Act,

whichever is applicable. However, the

Petition to Remove the Conditions on
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Residence required by section 216(c) of

the Act or the Petition by Entrepreneur

to Remove Conditions required by

section 216A(c) of the Act shall be made

to the director in accordance with 8 CFR

part 216. In conjunction with any

application for creation of status of an

alien lawfully admitted for permanent

residence made to an immigration

judge, if the respondent is inadmissible

under any provision of section 212(a) of

the Act and believes that he or she

meets the eligibility requirements for a

waiver of the ground of inadmissibility,

he or she may apply to the immigration

judge for such waiver. The immigration

judge shall inform the respondent of his

or her apparent eligibility to apply for

any of the benefits enumerated in this

paragraph and shall afford the

respondent an opportunity to make

application therefor during the hearing.

In exercising discretionary power when

considering an application under this

paragraph, the immigration judge may

consider and base the decision on

information not contained in the record

and not made available for inspection

by the respondent, provided the

Commissioner has determined that such

information is relevant and is classified

under the applicable Executive Order as

requiring protection from unauthorized

disclosure in the interest of national

security. Whenever the immigration

judge believes that he or she can do so

while safeguarding both the information

and its source, the immigration judge

should inform the respondent of the

general nature of the information in

order that the respondent may have an

opportunity to offer opposing evidence.

A decision based in whole or in part on

such classified information shall state

that the information is material to the

decision.

(b) Voluntary departure. The

respondent may apply to the

immigration judge for voluntary

departure in lieu of deportation

pursuant to section 244(e) of the Act

and § 240.56.

(c) Applications for asylum or

withholding of deportation. (1) The

immigration judge shall notify the

respondent that if he or she is finally

ordered deported, his or her deportation

will in the first instance be directed

pursuant to section 243(a) of the Act to

the country designated by the

respondent and shall afford him or her

an opportunity then and there to make

such designation. The immigration

judge shall then specify and state for the

record the country, or countries in the

alternative, to which respondent’s

deportation will be directed pursuant to

section 243(a) of the Act if the country

of his or her designation will not accept

him or her into its territory, or fails to

furnish timely notice of acceptance, or

if the respondent declines to designate

a country.

(2) If the alien expresses fear of

persecution or harm upon return to any

of the countries to which the alien

might be deported pursuant to

paragraph (c)(1) of this section, and the

alien has not previously filed an

application for asylum or withholding

of deportation that has been referred to

the immigration judge by an asylum

officer in accordance with § 208.14(b) of

this chapter, the immigration judge

shall:

(i) Advise the alien that he or she may

apply for asylum in the United States or

withholding of deportation to those

countries; and

(ii) Make available the appropriate

application forms.

(3) An application for asylum or

withholding of deportation must be

filed with the Immigration Court,

pursuant to § 208.4(b) of this chapter.

Upon receipt of an application that has

not been referred by an asylum officer,

the Immigration Court shall forward a

copy to the Department of State

pursuant to § 208.11 of this chapter and

shall calendar the case for a hearing.

The reply, if any, of the Department of

State, unless classified under the

applicable Executive Order, shall be

given to both the applicant and to the

Service counsel representing the

government.

(4) Applications for asylum or

withholding of deportation so filed will

be decided by the immigration judge

pursuant to the requirements and

standards established in 8 CFR part 208

after an evidentiary hearing that is

necessary to resolve factual issues in

dispute. An evidentiary hearing

extending beyond issues related to the

basis for a mandatory denial of the

application pursuant to § 208.13 or

§ 208.16 of this chapter is not necessary

once the immigration judge has

determined that such a denial is

required.

(i) Evidentiary hearings on

applications for asylum or withholding

of deportation will be open to the public

unless the applicant expressly requests

that it be closed.

(ii) Nothing in this section is intended

to limit the authority of the immigration

judge properly to control the scope of

any evidentiary hearing.

(iii) During the deportation hearing,

the applicant shall be examined under

oath on his or her application and may

present evidence and witnesses in his or

her own behalf. The applicant has the

burden of establishing that he or she is

a refugee as defined in section

101(a)(42) of the Act pursuant to the

standard set forth in § 208.13 of this

chapter.

(iv) The Service counsel for the

government may call witnesses and

present evidence for the record,

including information classified under

the applicable Executive Order,

provided the immigration judge or the

Board has determined that such

information is relevant to the hearing.

When the immigration judge receives

such classified information he or she

shall inform the applicant. The agency

that provides the classified information

to the immigration judge may provide

an unclassified summary of the

information for release to the applicant,

whenever it determines it can do so

consistently with safeguarding both the

classified nature of the information and

its source. The summary should be as

detailed as possible, in order that the

applicant may have an opportunity to

offer opposing evidence. A decision

based in whole or in part on such

classified information shall state

whether such information is material to

the decision.

(5) The decision of an immigration

judge to grant or deny asylum or

withholding of deportation shall be

communicated to the applicant and to

the Service counsel for the government.

An adverse decision will state why

asylum or withholding of deportation

was denied.

(d) Application for relief under

sections 241(a)(1)(H) and

241(a)(1)(E)(iii) of the Act. The

respondent may apply to the

immigration judge for relief from

deportation under sections 241(a)(1)(H)

and 241(a)(1)(E)(iii) of the Act.

(e) General. An application under this

section shall be made only during the

hearing and shall not be held to

constitute a concession of alienage or

deportability in any case in which the

respondent does not admit his alienage

or deportability. However, nothing in

this section shall prohibit the Service

from using information supplied in an

application for asylum or withholding

of deportation submitted to an asylum

officer pursuant to § 208.2 of this

chapter on or after January 4, 1995, as

the basis for issuance of an order to

show cause or a notice to appear to

establish alienage or deportability in a

case referred to an immigration judge

under § 208.14(b) of this chapter. The

respondent shall have the burden of

establishing that he or she is eligible for

any requested benefit or privilege and

that it should be granted in the exercise

of discretion. The respondent shall not

be required to pay a fee on more than

one application within paragraphs (a)
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10377

and (c) of this section, provided that the

minimum fee imposed when more than

one application is made shall be

determined by the cost of the

application with the highest fee.

Nothing contained in this section is

intended to foreclose the respondent

from applying for any benefit or

privilege which he or she believes

himself or herself eligible to receive in

proceedings under this part.

§ 240.50 Decision of the immigration

judge.

(a) Contents. The decision of the

immigration judge may be oral or

written. Except when deportability is

determined on the pleadings pursuant

to § 240.48(b), the decision of the

immigration judge shall include a

finding as to deportability. The formal

enumeration of findings is not required.

The decision shall also contain the

reasons for granting or denying the

request. The decision shall be

concluded with the order of the

immigration judge.

(b) Summary decision.

Notwithstanding the provisions of

paragraph (a) of this section, in any case

where deportability is determined on

the pleadings pursuant to § 240.48(b)

and the respondent does not make an

application under § 240.49, or the

respondent applies for voluntary

departure only and the immigration

judge grants the application, the

immigration judge may enter a summary

decision on Form EOIR–7, Summary

Order of Deportation, if deportation is

ordered, or on Form EOIR–6, Summary

Order of Voluntary Departure, if

voluntary departure is granted with an

alternate order of deportation.

(c) Order of the immigration judge.

The order of the immigration judge shall

direct the respondent’s deportation, or

the termination of the proceedings, or

such other disposition of the case as

may be appropriate. When deportation

is ordered, the immigration judge shall

specify the country, or countries in the

alternate, to which respondent’s

deportation shall be directed. The

immigration judge is authorized to issue

orders in the alternative or in

combination as he or she may deem

necessary.

§ 240.51 Notice of decision.

(a) Written decision. A written

decision shall be served upon the

respondent and the Service counsel,

together with the notice referred to in

§ 3.3 of this chapter. Service by mail is

complete upon mailing.

(b) Oral decision. An oral decision

shall be stated by the immigration judge

in the presence of the respondent and

the trail attorney, if any, at the

conclusion of the hearing. Unless appeal

from the decision is waived, the

respondent shall be furnished with

Form EOIR–26, Notice of Appeal, and

advised of the provisions of § 240.53. A

printed copy of the oral decision shall

be furnished at the request of the

respondent or the Service counsel.

(c) Summary decision. When the

immigration judge renders a summary

decision as provided in § 240.51(b), he

or she shall serve a copy thereof upon

the respondent at the conclusion of the

hearing. Unless appeal from the

decision is waived, the respondent shall

be furnished with Form EOIR–26,

Notice of Appeal, and advised of the

provisions of § 240.54.

§ 240.52 Finality of order.

The decision of the immigration judge

shall become final in accordance with

§ 3.39 of this chapter.

§ 240.53 Appeals.

(a) Pursuant to 8 CFR part 3, an

appeal shall lie from a decision of an

immigration judge to the Board, except

that no appeal shall lie from an order of

deportation entered in absentia. The

procedures regarding the filing of a

Form EOIR–26, Notice of Appeal, fees,

and briefs are set forth in §§ 3.3, 3.31,

and 3.38 of this chapter. An appeal shall

be filed within 30 calendar days after

the mailing of a written decision, the

stating of an oral decision, or the service

of a summary decision. The filing date

is defined as the date of receipt of the

Notice of Appeal by the Board. The

reasons for the appeal shall be stated in

the Form EOIR–26, Notice of Appeal, in

accordance with the provisions of

§ 3.3(b) of this chapter. Failure to do so

may constitute a ground for dismissal of

the appeal by the Board pursuant to

§ 3.1(d)(1-a) of this chapter.

(b) Prohibited appeals; legalization or

applications. An alien respondent

defined in § 245a.2(c)(6) or (7) of this

chapter who fails to file an application

for adjustment of status to that of a

temporary resident within the

prescribed period(s), and who is

thereafter found to be deportable by

decision of an immigration judge, shall

not be permitted to appeal the finding

of deportability based solely on refusal

by the immigration judge to entertain

such an application in deportation

proceedings.

§ 240.54 [Reserved]

Subpart F—Suspension of Deportation

and Voluntary Departure (for

proceedings commenced prior to April

1, 1997)

§ 240.55 Proceedings commenced prior to

April 1, 1997.

Subpart F of 8 CFR part 240 applies

to deportation proceedings commenced

prior to April 1, 1997. A deportation

proceeding is commenced by the filing

of Form I–221 (Order to Show Cause)

with the Immigration Court, and an

alien is considered to be in deportation

proceedings only upon such filing,

except in the case of an alien admitted

to the United States under the

provisions of section 217 of the Act. All

references to the Act contained in this

subpart are references to the Act in

effect prior to April 1, 1997.

§ 240.56 Application.

Notwithstanding any other provision

of this chapter, an alien who is

deportable because of a conviction on or

after November 18, 1988, for an

aggravated felony as defined in section

101(a)(43) of the Act, shall not be

eligible for voluntary departure as

prescribed in 8 CFR part 240 and

section 244 of the Act. Pursuant to

subpart F of this part and section 244 of

the Act, an immigration judge may

authorize the suspension of an alien’s

deportation; or, if the alien establishes

that he or she is willing and has the

immediate means with which to depart

promptly from the United States, an

immigration judge may authorize the

alien to depart voluntarily from the

United States in lieu of deportation

within such time as may be specified by

the immigration judge when first

authorizing voluntary departure, and

under such conditions as the district

director shall direct. An application for

suspension of deportation shall be made

on Form EOIR–40.

§ 240.57 Extension of time to depart.

Authority to reinstate or extend the

time within which to depart voluntarily

specified initially by an immigration

judge or the Board is within the sole

jurisdiction of the district director,

except that an immigration judge or the

Board may reinstate voluntary departure

in a deportation proceeding that has

been reopened for a purpose other than

solely making an application for

voluntary departure. A request by an

alien for reinstatement or an extension

of time within which to depart

voluntarily shall be filed with the

district director having jurisdiction over

the alien’s place of residence. Written

notice of the district director’s decision
10378 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

shall be served upon the alien and no

appeal may be taken therefrom.

Subpart G—Civil Penalties for Failure

to Depart [Reserved]

105. Part 241 is revised to read as

follows:

PART 241—APPREHENSION AND

DETENTION OF ALIENS ORDERED

REMOVED

Subpart A—Post-hearing Detention and

Removal

Sec.

241.1 Final order of removal.

241.2 Warrant of removal.

241.3 Detention of aliens during removal

period.

241.4 Continued detention beyond the

removal period.

241.5 Conditions of release after removal

period.

241.6 Administrative stay of removal.

241.7 Self-removal.

241.8 Reinstatement of removal orders.

241.9 Notice to transportation line of alien’s

removal.

241.10 Special care and attention of

removable aliens.

241.11 Detention and removal of

stowaways.

241.12 Nonapplication of costs of detention

and maintenance.

241.13—241.19 [Reserved]

Subpart B—Deportation of Excluded Aliens

(for hearings commenced prior to April 1,

1997)

241.20 Proceedings commenced prior to

April 1, 1997.

241.21 Stay of deportation of excluded

alien.

241.22 Notice to surrender for deportation.

241.23 Cost of maintenance not assessed.

241.24 Notice to transportation line of

alien’s exclusion.

241.25 Deportation.

241.26—241.29 [Reserved]

Subpart C—Deportation of Aliens in the

United States (for hearings commenced

prior to April 1, 1997)

241.30 Proceedings commenced prior to

April 1, 1997.

241.31 Final order of deportation.

241.32 Warrant of deportation.

241.33 Expulsion.

Authority: 8 U.S.C. 1103, 1223, 1227, 1251,

1253, 1255, and 1330; 8 CFR part 2.

Subpart A—Post-hearing Detention

and Removal

§ 241.1 Final order of removal.

An order of removal made by the

immigration judge at the conclusion of

proceedings under section 240 of the

Act shall become final:

(a) Upon dismissal of an appeal by the

Board of Immigration Appeals;

(b) Upon waiver of appeal by the

respondent;

(c) Upon expiration of the time

allotted for an appeal if the respondent

does not file an appeal within that time;

(d) If certified to the Board or

Attorney General, upon the date of the

subsequent decision ordering removal;

(e) If an immigration judge orders an

alien removed in the alien’s absence,

immediately upon entry of such order;

or

(f) If an immigration judge issues an

alternate order of removal in connection

with a grant of voluntary departure,

upon overstay of the voluntary

departure period except where the

respondent has filed a timely appeal

with the Board. In such a case, the order

shall become final upon an order of

removal by the Board or the Attorney

General, or upon overstay of any

voluntary departure period granted or

reinstated by the Board or the Attorney

General.

§ 241.2 Warrant of removal.

(a) Issuance of a warrant of removal.

A Form I–205, Warrant of Removal,

based upon the final administrative

removal order in the alien’s case shall

be issued by a district director. The

district director shall exercise the

authority contained in section 241 of the

Act to determine at whose expense the

alien shall be removed and whether his

or her mental or physical condition

requires personal care and attention en

route to his or her destination.

(b) Execution of the warrant of

removal. Any officer authorized by

§ 287.5(e) of this chapter to execute

administrative warrants of arrest may

execute a warrant of removal.

§ 241.3 Detention of aliens during removal

period.

(a) Assumption of custody. Once the

removal period defined in section

241(a)(1) of the Act begins, an alien in

the United States will be taken into

custody pursuant to the warrant of

removal.

(b) Cancellation of bond. Any bond

previously posted will be canceled

unless it has been breached or is subject

to being breached.

(c) Judicial stays. The filing of (or

intention to file) a petition or action in

a Federal court seeking review of the

issuance or execution of an order of

removal shall not delay execution of the

Warrant of Removal except upon an

affirmative order of the court.

§ 241.4 Continued detention beyond the

removal period.

(a) Continuation of custody for

inadmissible or criminal aliens. The

district director may continue in

custody any alien inadmissible under

section 212(a) of the Act or removable

under section 237(a)(1)(C), 237(a)(2), or

237(a)(4) of the Act, or who presents a

significant risk of noncompliance with

the order of removal, beyond the

removal period, as necessary, until

removal from the United States. If such

an alien demonstrates by clear and

convincing evidence that the release

would not pose a danger to the

community or a significant flight risk,

the district director may, in the exercise

of discretion, order the alien released

from custody on such conditions as the

district director may prescribe,

including bond in an amount sufficient

to ensure the alien’s appearance for

removal. The district may consider, but

is not limited to considering, the

following factors:

(1) The nature and seriousness of the

alien’s criminal convictions;

(2) Other criminal history;

(3) Sentence(s) imposed and time

actually served;

(4) History of failures to appear for

court (defaults);

(5) Probation history;

(6) Disciplinary problems while

incarcerated;

(7) Evidence of rehabilitative effort or

recidivism;

(8) Equities in the United States; and

(9) Prior immigration violations and

history.

(b) Continuation of custody for other

aliens. Any alien removable under any

section of the Act other than section

212(a), 237(a)(1)(C), 237(a)(2), or

237(a)(4) may be detained beyond the

removal period, in the discretion of the

district director, unless the alien

demonstrates to the satisfaction of the

district director that he or she is likely

to comply with the removal order and

is not a risk to the community.

§ 241.5 Conditions of release after removal

period.

(a) Order of supervision. An alien

released pursuant to § 241.4 shall be

released pursuant to an order of

supervision. A district director, acting

district director, deputy district director,

assistant district director for

investigations, assistant district director

for detention and deportation, or officer

in charge may issue an order of

supervision on Form I–220B. The order

shall specify conditions of supervision

including, but not limited to, the

following:

(1) A requirement that the alien report

to a specified officer periodically and

provide relevant information under oath

as directed;

(2) A requirement that the alien

continue efforts to obtain a travel

document and assist the Service in

obtaining a travel document;
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10379

(3) A requirement that the alien report

as directed for a mental or physical

examination or examinations as directed

by the Service;

(4) A requirement that the alien obtain

advance approval of travel beyond

previously specified times and

distances; and

(5) A requirement that the alien

provide the Service with written notice

of any change of address on Form AR–

11 within ten days of the change.

(b) Posting of bond. An officer

authorized to issue an order of

supervision may require the posting of

a bond in an amount determined by the

officer to be sufficient to ensure

compliance with the conditions of the

order, including surrender for removal.

(c) Employment authorization. An

officer authorized to issue an order of

supervision may, in his or her

discretion, grant employment

authorization to an alien released under

an order of supervision if the officer

specifically finds that:

(1) The alien cannot be removed

because no country will accept the

alien; or

(2) The removal of the alien is

impracticable or contrary to public

interest.

§ 241.6 Administrative stay of removal.

Any request of an alien under a final

order of deportation or removal for a

stay of deportation or removal shall be

filed on Form I–246, Stay of Removal,

with the district director having

jurisdiction over the place where the

alien is at the time of filing. The district

director, in his or her discretion and in

consideration of factors such as are

listed in § 212.5 of this chapter and

section 241(c) of the Act, may grant a

stay of removal or deportation for such

time and under such conditions as he or

she may deem appropriate. Neither the

request nor the failure to receive notice

of disposition of the request shall delay

removal or relieve the alien from strict

compliance with any outstanding notice

to surrender for deportation or removal.

Denial by the district director of a

request for a stay is not appealable, but

such denial shall not preclude an

immigration judge or the Board from

granting a stay in connection with a

motion to reopen or a motion to

reconsider as provided in 8 CFR part 3.

The Service shall take all reasonable

steps to comply with a stay granted by

an immigration judge or the Board.

However, such a stay shall cease to have

effect if granted (or communicated) after

the alien has been placed aboard an

aircraft or other conveyance for removal

and the normal boarding has been

completed.

§ 241.7 Self-removal.

A district director may permit an

alien ordered removed (including an

alien ordered excluded or deported in

proceedings prior to April 1, 1997) to

depart at his or her own expense to a

destination of his or her own choice.

Any alien who has departed from the

United States while an order of

deportation or removal is outstanding

shall be considered to have been

deported, excluded and deported, or

removed, except that an alien who

departed before the expiration of the

voluntary departure period granted in

connection with an alternate order of

deportation or removal shall not be

considered to have been so deported or

removed.

§ 241.8 Reinstatement of removal orders.

(a) Applicability. An alien who

illegally reenters the United States after

having been removed, or having

departed voluntarily, while under an

order of exclusion, deportation, or

removal shall be removed from the

United States by reinstating the prior

order. The alien has no right to a

hearing before an immigration judge in

such circumstances. In establishing

whether an alien is subject to this

section, the immigration officer shall

determine the following:

(1) Whether the alien has been subject

to a prior order of removal. The

immigration officer must obtain the

prior order of exclusion, deportation, or

removal relating to the alien.

(2) The identity of the alien, i.e.,

whether the alien is in fact an alien who

was previously removed, or who

departed voluntarily while under an

order of exclusion, deportation, or

removal. In disputed cases, verification

of identity shall be accomplished by a

comparison of fingerprints between

those of the previously excluded,

deported, or removed alien contained in

Service records and those of the subject

alien. In the absence of fingerprints in

a disputed case the alien shall not be

removed pursuant to this paragraph.

(3) Whether the alien unlawfully

reentered the United States. In making

this determination, the officer shall

consider all relevant evidence,

including statements made by the alien

and any evidence in the alien’s

possession. The immigration officer

shall attempt to verify an alien’s claim,

if any, that he or she was lawfully

admitted, which shall include a check

of Service data systems available to the

officer.

(b) Notice. If an officer determines

that an alien is subject to removal under

this section, he or she shall provide the

alien with written notice of his or her

determination. The officer shall advise

the alien that he or she may make a

written or oral statement contesting the

determination. If the alien wishes to

make such a statement, the officer shall

allow the alien to do so and shall

consider whether the alien’s statement

warrants reconsideration of the

determination.

(c) Order. If the requirements of

paragraph (a) of this section are met, the

alien shall be removed under the

previous order of exclusion,

deportation, or removal in accordance

with section 241(a)(5) of the Act.

(d) Exception for withholding of

removal. If an alien whose prior order

of removal has been reinstated under

this section expresses a fear of returning

to the country designated in that order,

the alien shall be immediately referred

to an asylum officer to determine

whether the alien’s removal to that

country must be withheld under section

241(b)(3) of the Act. The alien’s claim

will be granted or denied by an asylum

officer in accordance with § 208.16 of

this chapter. If the alien has previously

had a claim to withholding of

deportation or removal denied, then that

decision shall prevail unless the alien

can establish the existence of changed

circumstances that materially affect the

alien’s eligibility for withholding. The

alien’s case shall not be referred to an

immigration judge, and there is no

appeal from the decision of the asylum

officer. If the alien is found to merit

withholding of removal, the Service

shall not enforce the reinstated order.

(e) Execution of reinstated order.

Execution of the reinstated order of

removal and detention of the alien shall

be administered in accordance with this

part.

§ 241.9 Notice to transportation line of

alien’s removal.

(a) An alien who has been ordered

removed shall, immediately or as

promptly as the circumstances permit,

be offered for removal to the owner,

agent, master, commanding officer,

person in charge, purser, or consignee of

the vessel or aircraft on which the alien

is to be removed, as determined by the

district director, with a written notice

specifying the cause of inadmissibility

or deportability, the class of travel in

which such alien arrived and is to be

removed, and with the return of any

documentation that will assist in

effecting his or her removal. If special

care and attention are required, the

provisions of § 241.10 shall apply.

(b) Failure of the carrier to accept for

removal an alien who has been ordered

removed shall result in the carrier being

assessed any costs incurred by the
10380 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Service for detention after the carrier’s

failure to accept the alien for removal,

including the cost of any transportation

as required under section 241(e) of the

Act. The User Fee Account shall not be

assessed for expenses incurred because

of the carrier’s violation of the

provisions of section 241 of the Act and

this paragraph. The Service will, at the

carrier’s option, retain custody of the

alien for an additional 7 days beyond

the date of the removal order. If, after

the third day of this additional 7-day

period, the carrier has not made all the

necessary transportation arrangements

for the alien to be returned to his or her

point of embarkation by the end of the

additional 7-day period, the Service will

make the arrangements and bill the

carrier for its costs.

§ 241.10 Special care and attention of

removable aliens.

When, in accordance with section

241(c)(3) of the Act, a transportation

line is responsible for the expenses of an

inadmissible or deportable alien’s

removal, and the alien requires special

care and attention, the alien shall be

delivered to the owner, agent, master,

commanding officer, person in charge,

purser, or consignee of the vessel or

aircraft on which the alien will be

removed, who shall be given Forms I–

287, I–287A, and I–287B. The reverse of

Form I–287A shall be signed by the

officer of the vessel or aircraft to whom

the alien has been delivered and

immediately returned to the

immigration officer effecting delivery.

Form I–287B shall be retained by the

receiving officer and subsequently filled

out by the agents or persons therein

designated and returned by mail to the

district director named on the form. The

transportation line shall at its own

expense forward the alien from the

foreign port of disembarkation to the

final destination specified on Form I–

287. The special care and attention shall

be continued to such final destination,

except when the foreign public officers

decline to allow such attendant to

proceed and they take charge of the

alien, in which case this fact shall be

recorded by the transportation line on

the reverse of Form I–287B. If the

transportation line fails, refuses, or

neglects to provide the necessary special

care and attention or comply with the

directions of Form I–287, the district

director shall thereafter and without

notice employ suitable persons, at the

expense of the transportation line, and

effect such removal.

§ 241.11 Detention and removal of

stowaways.

(a) Presentation of stowaways. The

owner, agent, master, commanding

officer, charterer, or consignee of a

vessel or aircraft (referred to in this

section as the carrier) bringing any alien

stowaway to the United States is

required to detain the stowaway on

board the vessel or aircraft, at the

expense of the owner of the vessel or

aircraft, until completion of the

inspection of the alien by an

immigration officer. If detention on

board the vessel or aircraft pending

inspection is not possible, the carrier

shall advise the Service of this fact

without delay, and the Service may

authorize that the carrier detain the

stowaway at another designated

location, at the expense of the owner,

until the immigration officer arrives. No

notice to detain the alien shall be

required. Failure to detain an alien

stowaway pending inspection shall

result in a civil penalty under section

243(c)(1)(A) of the Act. The owner,

agent, master, commanding officer,

charterer, or consignee of a vessel or

aircraft must present the stowaway for

inspection, along with any documents

or evidence of identity or nationality in

the possession of the alien or obtained

by the carrier relating to the alien

stowaway, and must provide any

available information concerning the

alien’s boarding or apprehension.

(b) Removal of stowaways from vessel

or aircraft for medical treatment. The

district director may parole an alien

stowaway into the United States for

medical treatment, but the costs of

detention and treatment of the alien

stowaway shall be at the expense of the

owner of the vessel or aircraft, and such

removal of the stowaway from the vessel

or aircraft does not relieve the carrier of

the requirement to remove the

stowaway from the United States once

such medical treatment has been

completed.

(c) Repatriation of stowaways—(1)

Requirements of carrier. Following

inspection, an immigration officer may

order the owner, agent, master,

commanding officer, charterer, or

consignee of a vessel or aircraft bringing

any alien stowaway to the United States

to remove the stowaway on the vessel or

aircraft of arrival, unless it is

impracticable to do so or other factors

exist which would preclude removal on

the same vessel or aircraft. Such factors

may include, but are not limited to,

sanitation, health, and safety concerns

for the crew and/or stowaway, whether

the stowaway is a female or a juvenile,

loss of insurance coverage on account of

the stowaway remaining aboard, need

for repairs to the vessel, and other

similar circumstances. If the owner,

agent, master, commanding officer,

charterer, or consignee requests that he

or she be allowed to remove the

stowaway by other means, the Service

shall favorably consider any such

request, provided the carrier has

obtained, or will obtain in a timely

manner, any necessary travel documents

and has made or will make all

transportation arrangements. The

owner, agent, master, commanding

officer, charterer, or consignee shall

transport the stowaway or arrange for

secure escort of the stowaway to the

vessel or aircraft of departure to ensure

that the stowaway departs the United

States. All expenses relating to removal

shall be borne by the owner. Other than

requiring compliance with the detention

and removal requirements contained in

section 241(d)(2) of the Act, the Service

shall not impose additional conditions

on the carrier regarding security

arrangements. Failure to comply with an

order to remove an alien stowaway shall

result in a civil penalty under section

243(c)(1)(A) of the Act.

(2) Detention of stowaways ordered

removed. If detention of the stowaway is

required pending removal on other than

the vessel or aircraft of arrival, or if the

stowaway is to be removed on the vessel

or aircraft of arrival but departure of the

vessel or aircraft is not imminent and

circumstances preclude keeping the

stowaway on board the vessel or

aircraft, the Service shall take the

stowaway into Service custody. The

owner is responsible for all costs of

maintaining and detaining the

stowaway pending removal, including

costs for stowaways seeking asylum as

described in paragraph (d) of this

section. Such costs will be limited to

those normally incurred in the

detention of an alien by the Service,

including, but not limited to, housing,

food, transportation, medical expenses,

and other reasonable costs incident to

the detention of the stowaway. The

Service may require the posting of a

bond or other surety to ensure payment

of costs of detention.

(d) Stowaways claiming asylum—(1)

Referral for credible fear determination.

A stowaway who indicates an intention

to apply for asylum or a fear of

persecution shall be removed from the

vessel or aircraft of arrival in accordance

with § 208.5(b) of this chapter. The

immigration officer shall refer the alien

to an asylum officer for a determination

of credible fear in accordance with

section 235(b)(1)(B) of the Act and

§ 208.30 of this chapter. The stowaway

shall be detained in the custody of the

Service pending the credible fear
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10381

determination and any review thereof.

Parole of such alien, in accordance with

section 212(d)(5) of the Act, may be

permitted only when the Attorney

General determines, in the exercise of

discretion, that parole is required to

meet a medical emergency or is

necessary for a legitimate law

enforcement objective. A stowaway who

has established a credible fear of

persecution in accordance with § 208.30

of this chapter may be detained or

paroled pursuant to § 212.5 of this

chapter during any consideration of the

asylum application. In determining

whether to detain or parole the alien,

the Service shall consider the likelihood

that the alien will abscond or pose a

security risk.

(2) Costs of detention of asylumseeking stowaways. The owner of the

vessel or aircraft that brought the

stowaway to the United States shall

reimburse the Service for the costs of

maintaining and detaining the

stowaway pending a determination of

credible fear under section 235(b)(1)(B)

of the Act, up to a maximum period of

72 hours. The owner is also responsible

for the costs of maintaining and

detaining the stowaway during the

period in which the stowaway is

pursuing his or her asylum application,

for a maximum period of 15 working

days, excluding Saturdays, Sundays,

and holidays. The 15-day period shall

begin on the day following the day in

which the alien is determined to have

a credible fear of persecution by the

asylum officer, or by the immigration

judge if such review was requested by

the alien pursuant to section

235(b)(1)(B)(iii)(III) of the Act, but not

later than 72 hours after the stowaway

was initially presented to the Service for

inspection. Following the determination

of credible fear, if the stowaway’s

application for asylum is not

adjudicated within 15 working days, the

Service shall pay the costs of detention

beyond this time period. If the

stowaway is determined not to have a

credible fear of persecution, or if the

stowaway’s application for asylum is

denied, including any appeals, the

carrier shall be notified and shall

arrange for repatriation of the stowaway

at the expense of the owner of the vessel

or aircraft on which the stowaway

arrived.

§ 241.12 Nonapplication of costs of

detention and maintenance.

The owner of a vessel or aircraft

bringing an alien to the United States

who claims to be exempt from payment

of the costs of detention and

maintenance of the alien pursuant to

section 241(c)(3)(B) of the Act shall

establish to the satisfaction of the

district director in charge of the port of

arrival that such costs should not be

applied. The district director shall

afford the owner a reasonable time

within which to submit affidavits and

briefs to support the claim. There is no

appeal from the decision of the district

director.

§§ 241.13—241.19 [Reserved]

Subpart B—Deportation of Excluded

Aliens (for hearings commenced prior

to April 1, 1997)

§ 241.20 Proceedings commenced prior to

April 1, 1997.

Subpart B of 8 CFR part 241 applies

to exclusion proceedings commenced

prior to April 1, 1997. All references to

the Act contained in this subpart are

references to the Act in effect prior to

April 1, 1997.

§ 241.21 Stay of deportation of excluded

alien.

The district director in charge of the

port of arrival may stay the immediate

deportation of an excluded alien

pursuant to sections 237 (a) and (d) of

the Act under such conditions as he or

she may prescribe.

§ 241.22 Notice to surrender for

deportation.

An alien who has been finally

excluded pursuant to 8 CFR part 240,

subpart D may at any time surrender

himself or herself to the custody of the

Service and shall surrender to such

custody upon notice in writing of the

time and place for his or her surrender.

The Service may take the alien into

custody at any time. An alien taken into

custody either upon notice to surrender

or by arrest shall not be deported less

than 72 hours thereafter without his or

her consent thereto filed in writing with

the district director in charge of the

place of his or her detention. An alien

in foreign contiguous territory shall be

informed that he or she may remain

there in lieu of surrendering to the

Service, but that he or she will be

deemed to have acknowledged the

execution of the order of exclusion and

deportation in his or her case upon his

or her failure to surrender at the time

and place prescribed.

§ 241.23 Cost of maintenance not

assessed.

A claim pursuant to section 237(a)(1)

of the Act shall be established to the

satisfaction of the district director in

charge of the port of arrival, from whose

adverse decision no appeal shall lie.

The district director shall afford the line

a reasonable time within which to

submit affidavits and briefs to support

its claim.

§ 241.24 Notice to transportation line of

alien’s exclusion.

(a) An excluded alien shall,

immediately or as promptly as the

circumstances permit, be offered for

deportation to the master, commanding

officer, purser, person in charge, agent,

owner, or consignee of the vessel or

aircraft on which the alien is to be

deported, as determined by the district

director, with a written notice

specifying the cause of exclusion, the

class of travel in which such alien

arrived and is to be deported, and with

the return of any documentation that

will assist in effecting his or her

deportation. If special care and attention

are required, the provisions of § 241.10

shall apply.

(b) Failure of the carrier to accept for

removal an alien who has been ordered

excluded and deported shall result in

the carrier being assessed any costs

incurred by the Service for detention

after the carrier’s failure to accept the

alien for removal including the cost of

any transportation. The User Fee

Account shall not be assessed for

expenses incurred because of the

carrier’s violation of the provisions of

section 237 of the Act and this

paragraph. The Service will, at the

carrier’s option, retain custody of the

excluded alien for an additional 7 days

beyond the date of the deportation/

exclusion order. If, after the third day of

this additional 7-day period, the carrier

has not made all the necessary

transportation arrangements for the

excluded alien to be returned to his or

her point of embarkation by the end of

the additional 7-day period, the Service

will make the arrangements and bill the

carrier for its costs.

§ 241.25 Deportation.

(a) Definitions of terms. For the

purposes of this section, the following

terms mean:

(1) Adjacent island—as defined in

section 101(b)(5) of the Act.

(2) Foreign contiguous territory—any

country sharing a common boundary

with the United States.

(3) Residence in foreign contiguous

territory or adjacent island—any

physical presence, regardless of intent,

in a foreign contiguous territory or an

adjacent island if the government of

such territory or island agrees to accept

the alien.

(4) Aircraft or vessel—any conveyance

and other mode of travel by which

arrival is effected.

(5) Next available flight—the carrier’s

next regularly scheduled departure to
10382 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

the excluded alien’s point of

embarkation regardless of seat

availability. If the carrier’s next

regularly scheduled departure to the

excluded aliens point of embarkation is

full, the carrier has the option of

arranging for return transportation on

other carriers which service the

excluded aliens point of embarkation.

(b) Place to which deported. Any alien

(other than an alien crewmember or an

alien who boarded an aircraft or vessel

in foreign contiguous territory or an

adjacent island) who is ordered

excluded shall be deported to the

country where the alien boarded the

vessel or aircraft on which the alien

arrived in the United States. If that

country refuses to accept the alien, the

alien shall be deported to:

(1) The country of which the alien is

a subject, citizen, or national;

(2) The country where the alien was

born;

(3) The country where the alien has a

residence; or

(4) Any country willing to accept the

alien.

(c) Contiguous territory and adjacent

islands. Any alien ordered excluded

who boarded an aircraft or vessel in

foreign contiguous territory or in any

adjacent island shall be deported to

such foreign contiguous territory or

adjacent island if the alien is a native,

citizen, subject, or national of such

foreign contiguous territory or adjacent

island, or if the alien has a residence in

such foreign contiguous territory or

adjacent island. Otherwise, the alien

shall be deported, in the first instance,

to the country in which is located the

port at which the alien embarked for

such foreign contiguous territory or

adjacent island.

(d) Land border pedestrian arrivals.

Any alien ordered excluded who arrived

at a land border on foot shall be

deported in the same manner as if the

alien had boarded a vessel or aircraft in

foreign contiguous territory.

§§ 241.26–241.29 [Reserved]

Subpart C—Deportation of Aliens in

the United States (for hearings

commenced prior to April 1, 1997)

§ 241.30 Proceedings commenced prior to

April 1, 1997.

Subpart C of 8 CFR part 241 applies

to deportation proceedings commenced

prior to April 1, 1997. All references to

the Act contained in this subpart are

references to the Act in effect prior to

April 1, 1997.

§ 241.31 Final order of deportation.

Except as otherwise required by

section 242(c) of the Act for the specific

purposes of that section, an order of

deportation, including an alternate

order of deportation coupled with an

order of voluntary departure, made by

the immigration judge in proceedings

under 8 CFR part 240 shall become final

upon dismissal of an appeal by the

Board of Immigration Appeals, upon

waiver of appeal, or upon expiration of

the time allotted for an appeal when no

appeal is taken; or, if such an order is

issued by the Board or approved by the

Board upon certification, it shall be final

as of the date of the Board’s decision.

§ 241.32 Warrant of deportation.

A Form I–205, Warrant of

Deportation, based upon the final

administrative order of deportation in

the alien’s case shall be issued by a

district director. The district director

shall exercise the authority contained in

section 243 of the Act to determine at

whose expense the alien shall be

deported and whether his or her mental

or physical condition requires personal

care and attention en route to his or her

destination.

§ 241.33 Expulsion.

(a) Execution of order. Except in the

exercise of discretion by the district

director, and for such reasons as are set

forth in § 212.5(a) of this chapter, once

an order of deportation becomes final,

an alien shall be taken into custody and

the order shall be executed. For the

purposes of this part, an order of

deportation is final and subject to

execution upon the date when any of

the following occurs:

(1) A grant of voluntary departure

expires;

(2) An immigration judge enters an

order of deportation without granting

voluntary departure or other relief, and

the alien respondent waives his or her

right to appeal;

(3) The Board of Immigration Appeals

enters an order of deportation on

appeal, without granting voluntary

departure or other relief; or

(4) A Federal district or appellate

court affirms an administrative order of

deportation in a petition for review or

habeas corpus action.

(b) Service of decision. In the case of

an order entered by any of the

authorities enumerated above, the order

shall be executed no sooner than 72

hours after service of the decision,

regardless of whether the alien is in

Service custody, provided that such

period may be waived on the knowing

and voluntary request of the alien.

Nothing in this paragraph shall be

construed, however, to preclude

assumption of custody by the Service at

the time of issuance of the final order.

PART 242—[REMOVED AND

RESERVED]

106. Part 242 is removed and

reserved.

PART 243—[REMOVED AND

RESERVED]

107. Part 243 is removed and

reserved.

PART 244—TEMPORARY PROTECTED

STATUS FOR NATIONALS OF

DESIGNATED STATES

108. The heading for part 244 is

revised as set forth above.

109. The authority citation for part

244 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note,

8 CFR part 2.

§§ 244.1 and 244.2 [Removed]

110. Sections 244.1 and 244.2 are

removed.

§§ 244.3 through 244.22 [Redesignated as

§§ 244.1 through 244.20]

111. Newly designated §§ 244.3

through 244.22 are further redesignated

as §§ 244.1 through 244.20, respectively.

PART 245—ADJUSTMENT OF STATUS

TO THAT OF PERSON ADMITTED FOR

PERMANENT RESIDENCE

112. The authority citation for part

245 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255;

8 CFR part 2.

113. Section 245.1 is amended by:

a. Removing the word ‘‘and’’ at the

end of the paragraph (c)(3);

b. Removing the ‘‘.’’ at the end of

paragraphs (c)(4) through (c)(7), and

replacing it with a ‘‘;’’;

c. Redesignating paragraph (c)(8) as

paragraph (c)(9);

d. Adding a new paragraph (c)(8);

e. Revising newly redesignated

paragraph (c)(9) introductory text;

f. Revising newly redesignated

paragraphs (c)(9)(i) through (c)(9)(iii);

and by

g. Revising paragraph (f), to read as

follows:

§ 245.1 Eligibility.

* * * * *

(c) * * *

(8) Any arriving alien who is in

removal proceedings pursuant to section

235(b)(1) or section 240 of the Act; and

(9) Any alien who seeks to adjust

status based upon a marriage which

occurred on or after November 10, 1986,

and while the alien was in exclusion,

deportation, or removal proceedings, or

judicial proceedings relating thereto.

(i) Commencement of proceedings.

The period during which the alien is in
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10383

deportation, exclusion, or removal

proceedings or judicial proceedings

relating thereto, commences:

(A) With the issuance of the Form I–

221, Order to Show Cause and Notice of

Hearing prior to June 20, 1991;

(B) With the filing of a Form I–221,

Order to Show Cause and Notice of

Hearing, issued on or after June 20,

1991, with the Immigration Court;

(C) With the issuance of Form I–122,

Notice to Applicant for Admission

Detained for Hearing Before

Immigration Judge, prior to April 1,

1997,

(D) With the filing of a Form I–862,

Notice to Appear, with the Immigration

Court, or

(E) With the issuance and service of

Form I–860, Notice and Order of

Expedited Removal.

(ii) Termination of proceedings. The

period during which the alien is in

exclusion, deportation, or removal

proceedings, or judicial proceedings

relating thereto, terminates:

(A) When the alien departs from the

United States while an order of

exclusion, deportation, or removal is

outstanding or before the expiration of

the voluntary departure time granted in

connection with an alternate order of

deportation or removal;

(B) When the alien is found not to be

inadmissible or deportable from the

United States;

(C) When the Form I–122, I–221, I–

860, or I–862 is canceled;

(D) When proceedings are terminated

by the immigration judge or the Board

of Immigration Appeals; or

(E) When a petition for review or an

action for habeas corpus is granted by a

Federal court on judicial review.

(iii) Exemptions. This prohibition

shall no longer apply if:

(A) The alien is found not to be

inadmissible or deportable from the

United States;

(B) Form I–122, I–221, I–860, or I–

862, is canceled;

(C) Proceedings are terminated by the

immigration judge or the Board of

Immigration Appeals;

(D) A petition for review or an action

for habeas corpus is granted by a

Federal court on judicial review;

(E) The alien has resided outside the

United States for 2 or more years

following the marriage; or

(F) The alien establishes the marriage

is bona fide by providing clear and

convincing evidence that the marriage

was entered into in good faith and in

accordance with the laws of the place

where the marriage took place, was not

entered into for the purpose of

procuring the alien’s entry as an

immigrant, and no fee or other

consideration was given (other than to

an attorney for assistance in preparation

of a lawful petition) for the filing of a

petition.

* * * * *

(f) Concurrent applications to

overcome grounds of inadmissibility.

Except as provided in 8 CFR parts 235

and 249, an application under this part

shall be the sole method of requesting

the exercise of discretion under sections

212(g), (h), (i), and (k) of the Act, as they

relate to the inadmissibility of an alien

in the United States. No fee is required

for filing an application to overcome the

grounds of inadmissibility of the Act if

filed concurrently with an application

for adjustment of status under the

provisions of the Act of October 28,

1977, and of this part.

* * * * *

114. Section 245.2 is amended by:

a. Revising paragraph (a)(1);

b. Revising paragraph (a)(4)(ii);

c. Revising paragraph (a)(5)(ii) and

(iii); and by

d. Revising paragraph (c), to read as

follows:

§ 245.2 Application.

(a) * * * (1) Jurisdiction. An alien

who believes he or she meets the

eligibility requirements of section 245 of

the Act or section 1 of the Act of

November 2, 1966, and § 245.1 shall

apply to the director having jurisdiction

over his or her place of residence unless

otherwise instructed in 8 CFR part 245,

or by the instruction on the application

form. After an alien, other than an

arriving alien, is in deportation or

removal proceedings, his or her

application for adjustment of status

under section 245 of the Act or section

1 of the Act of November 2, 1966 shall

be made and considered only in those

proceedings. An arriving alien, other

than an alien in removal proceedings,

who believes he or she meets the

eligibility requirements of section 245 of

the Act or section 1 of the Act of

November 2, 1966, and § 245.1 shall

apply to the director having jurisdiction

over his or her place of arrival. An

adjustment application by an alien

paroled under section 212(d)(5) of the

Act, which has been denied by the

director, may be renewed in removal

proceedings under 8 CFR part 240 only

if:

(i) The denied application must have

been properly filed subsequent to the

applicant’s earlier inspection and

admission to the United States; and

(ii) The applicant’s later absence from

and return to the United States was

under the terms of an advance parole

authorization on Form I–512 granted to

permit the applicant’s absence and

return to pursue the previously filed

adjustment application.

* * * * *

(4) * * *

(ii) Under section 245 of the Act. The

departure from the United States of an

applicant who is under exclusion,

deportation, or removal proceedings

shall be deemed an abandonment of the

application constituting grounds for

termination of the proceeding by reason

of the departure. The departure of an

applicant who is not under exclusion,

deportation, or removal proceedings

shall be deemed an abandonment of his

or her application constituting grounds

for termination, unless the applicant

was previously granted advance parole

by the Service for such absence, and

was inspected upon returning to the

United States. If the application of an

individual granted advance parole is

subsequently denied, the applicant will

be treated as an applicant for admission,

and subject to the provisions of sections

212 and 235 of the Act.

* * * * *

(5) * * *

(ii) Under section 245 of the Act. If the

application is approved, the applicant’s

permanent residence shall be recorded

as of the date of the order approving the

adjustment of status. An application for

adjustment of status, as a preference

alien, shall not be approved until an

immigrant visa number has been

allocated by the Department of State,

except when the applicant has

established eligibility for the benefits of

Public Law 101–238. No appeal lies

from the denial of an application by the

director, but the applicant, if not an

arriving alien, retains the right to renew

his or her application in proceedings

under 8 CFR part 240. Also, an

applicant who is a parolee and meets

the two conditions described in

§ 245.2(a)(1) may renew a denied

application in proceedings under 8 CFR

part 240 to determine admissibility. At

the time of renewal of the application,

an applicant does not need to meet the

statutory requirement of section 245(c)

of the Act, or § 245.1(g), if, in fact, those

requirements were met at the time the

renewed application was initially filed

with the director. Nothing in this

section shall entitle an alien to

proceedings under section 240 of the

Act who is not otherwise so entitled.

(iii) Under the Act of November 2,

1966. If the application is approved, the

applicant’s permanent residence shall

be recorded in accordance with the

provisions of section 1. No appeal lies

from the denial of an application by the

director, but the applicant, if not an
10384 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

arriving alien, retains the right to renew

his or her application in proceedings

under 8 CFR part 240. Also, an

applicant who is a parolee and meets

the two conditions described in

§ 245.2(a)(1) may renew a denied

application in proceedings under 8 CFR

part 240 to determine admissibility.

* * * * *

(c) Application under section 214(d)

of the Act. An application for

permanent resident status pursuant to

section 214(d) of the Act shall be filed

on Form I–485 with the director having

jurisdiction over the applicant’s place of

residence. A separate application shall

be filed by each applicant. If the

application is approved, the director

shall record the lawful admission of the

applicant as of the date of approval. The

applicant shall be notified of the

decision and, if the application is

denied, of the reasons therefor. No

appeal shall lie from the denial of an

application by the director but such

denial shall be without prejudice to the

alien’s right to renew his or her

application in proceedings under 8 CFR

part 240.

115. Section 245.5 is amended by

revising the first sentence to read as

follows:

§ 245.5 Medical examination.

Pursuant to section 232(b) of the Act,

an applicant for adjustment of status

shall be required to have a medical

examination by a designated civil

surgeon, whose report setting forth the

findings of the mental and physical

condition of the applicant, including

compliance with section 212(a)(1)(A)(ii)

of the Act, shall be incorporated into the

record. * * *

116. Section 245.8 is amended by

revising paragraph (e), to read as

follows:

§ 245.8 Adjustment of status as a special

immigrant under section 101(a)(27)(K) of the

Act.

* * * * *

(e) Removal provisions of section 237

of the Act. If the Service is made aware

by notification from the appropriate

executive department or by any other

means that a section 101(a)(27)(K)

special immigrant who has already been

granted permanent residence fails to

complete his or her total active duty

service obligation for reasons other than

an honorable discharge, the alien may

become subject to the removal

provisions of section 237 of the Act,

provided the alien is in one or more of

the classes of deportable aliens specified

in section 237 of the Act. The Service

shall obtain a current Form DD–214,

Certificate of Release or Discharge from

Active Duty, from the appropriate

executive department for verification of

the alien’s failure to maintain eligibility.

* * * * *

117. Section 245.9 is amended by

revising paragraphs (d) and (m), to read

as follows:

§ 245.9 Adjustment of Status of Certain

Nationals of the People’s Republic of China

under Public Law 102–404.

* * * * *

(d) Waivers of inadmissibility under

section 212(a) of the Act. An applicant

for the benefits of the adjustment of

status provisions of Pub. L. 102–404 is

automatically exempted from

compliance with the requirements of

sections 212(a)(5) and 212(a)(7)(A) of

the Act. A Pub. L. 102–404 applicant

may also apply for one or more waivers

of inadmissibility under section 212(a)

of the Act, except for inadmissibility

under section 212(a)(2)(C), 212(a)(3)(A),

212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E)

of the Act.

* * * * *

(m) Effect of enactment on family

members other than qualified family

members. The adjustment of status

benefits and waivers provided by Pub.

L. 102–404 do not apply to a spouse or

child who is not a qualified family

member as defined in paragraph (c) of

this section. However, a spouse or child

whose relationship to the principal

alien was established prior to the

approval of the principal’s adjustment

of status application may be accorded

the derivative priority date and

preference category of the principal

alien, in accordance with the provisions

of section 203(d) of the Act. The spouse

or child may use the priority date and

category when it becomes current, in

accordance with the limitations set forth

in sections 201 and 202 of the Act.

Persons who are unable to maintain

lawful nonimmigrant status in the

United States and are not immediately

eligible to apply for adjustment of status

may request voluntary departure

pursuant to 8 CFR part 240.

118. Section 245.10 is amended by:

a. Revising paragraphs (a) (3) and (6);

and by

b. Revising introductory text in

paragraph (b), to read as follows:

§ 245.10 Adjustment of status upon

payment of additional sum under Public

Law 103–317.

(a) * * *

(3) Is not inadmissible from the

United States under any provision of

section 212 of the Act, or all grounds for

inadmissibility have been waived;

* * * * *

(6) Remits the sum specified in

section 245(i) of the Act, unless

payment of the sum is waived under

section 245(i) of the Act; and

* * * * *

(b) Payment of additional sum. An

applicant filing under the provisions of

section 245(i) of the Act must pay the

standard adjustment of status filing fee,

as shown on Form I–485 and contained

in § 103.7(b)(1) of this chapter. The

applicant must also pay the additional

sum specified in section 245(i) of the

Act, unless at the time the application

for adjustment of status is filed, the

alien is:

* * * * *

119. Section 245.11 is amended by:

a. Revising paragraph (a)(4)(ii)(B);

b. Revising paragraph (b)(1)(iii);

c. Revising the introductory text in

paragraph (c); and by

d. Revising paragraphs (h) and (i), to

read as follows:

§ 245.11 Adjustment of aliens in S

nonimmigrant classification.

(a) * * *

(4) * * *

(ii) * * *

(B) Be admissible to the United States

as an immigrant, unless the ground of

inadmissibility has been waived;

* * * * *

(b) * * *

(1) * * *

(iii) The family member is not

inadmissible from the United States as

a participant in Nazi persecution or

genocide as described in section

212(a)(3)(E) of the Act;

* * * * *

(c) Waivers of inadmissibility. An

alien seeking to adjust status pursuant

to the provisions of section 101(a)(15)(S)

of the Act may not be denied adjustment

of status for conduct or a condition that:

* * * * *

(h) Removal under section 237 of the

Act. Nothing in this section shall

prevent an alien adjusted pursuant to

the terms of these provisions from being

removed for conviction of a crime of

moral turpitude committed within 10

years after being provided lawful

permanent residence under this section

or for any other ground under section

237 of the Act.

(i) Denial of application. In the event

the district director decides to deny an

application on Form I–485 and an

approved Form I–854 to allow an S

nonimmigrant to adjust status, the

Assistant Attorney General, Criminal

Division, and the relevant LEA shall be

notified in writing to that effect. The

Assistant Attorney General, Criminal

Division, shall concur in or object to
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10385

that decision. Unless the Assistant

Attorney General, Criminal Division,

objects within 7 days, he or she shall be

deemed to have concurred in the

decision. In the event of an objection by

the Assistant Attorney General,

Criminal Division, the matter will be

expeditiously referred to the Deputy

Attorney General for a final resolution.

In no circumstances shall the alien or

the relevant LEA have a right of appeal

from any decision to deny. A denial of

an adjustment application under this

paragraph may not be renewed in

subsequent removal proceedings.

120. Part 246 is revised to read as

follows:

PART 246—RESCISSION OF

ADJUSTMENT OF STATUS

Sec.

246.1 Notice.

246.2 Allegations admitted; no answer

filed; no hearing requested.

246.3 Allegations contested or denied;

hearing requested.

246.4 Immigration judge’s authority;

withdrawal and substitution.

246.5 Hearing.

246.6 Decision and order.

246.7 Appeals.

246.8 [Reserved]

246.9 Surrender of Form I–551.

Authority: Authority: 8 U.S.C. 1103, 1254,

1255, 1256, 1259; 8 CFR part 2.

§ 246.1 Notice.

If it appears to a district director that

a person residing in his or her district

was not in fact eligible for the

adjustment of status made in his or her

case, a proceeding shall be commenced

by the personal service upon such

person of a notice of intent to rescind

which shall inform him or her of the

allegations upon which it is intended to

rescind the adjustment of his or her

status. In such a proceeding the person

shall be known as the respondent. The

notice shall also inform the respondent

that he or she may submit, within thirty

days from the date of service of the

notice, an answer in writing under oath

setting forth reasons why such

rescission shall not be made, and that he

or she may, within such period, request

a hearing before an immigration judge in

support of, or in lieu of, his or her

written answer. The respondent shall

further be informed that he or she may

have the assistance of or be represented

by counsel or representative of his or

her choice qualified under part 292 of

this chapter, at no expense to the

Government, in the preparation of his or

her answer or in connection with his or

her hearing, and that he or she may

present such evidence in his or her

behalf as may be relevant to the

rescission.

§ 246.2 Allegations admitted; no answer

filed; no hearing requested.

If the answer admits the allegations in

the notice, or if no answer is filed

within the thirty-day period, or if no

hearing is requested within such period,

the district director shall rescind the

adjustment of status previously granted,

and no appeal shall lie from his

decision.

§ 246.3 Allegations contested or denied;

hearing requested.

If, within the prescribed time

following service of the notice pursuant

to § 246.1, the respondent has filed an

answer which contests or denies any

allegation in the notice, or a hearing is

requested, a hearing pursuant to § 246.5

shall be conducted by an immigration

judge, and the requirements contained

in §§ 240.3, 240.4, 240.5, 240.6, 240.7,

and 240.9 of this chapter shall be

followed.

§ 246.4 Immigration judge’s authority;

withdrawal and substitution.

In any proceeding conducted under

this part, the immigration judge shall

have authority to interrogate, examine,

and cross-examine the respondent and

other witnesses, to present and receive

evidence, to determine whether

adjustment of status shall be rescinded,

to make decisions thereon, including an

appropriate order, and to take any other

action consistent with applicable

provisions of law and regulations as

may be appropriate to the disposition of

the case. Nothing contained in this part

shall be construed to diminish the

authority conferred on immigration

judges by the Act. The immigration

judge assigned to conduct a hearing

shall, at any time, withdraw if he or she

deems himself or herself disqualified. If

a hearing has begun but no evidence has

been adduced other than the notice and

answer, if any, pursuant to §§ 246.1 and

246.2, or if an immigration judge

becomes unavailable to complete his or

her duties within a reasonable time, or

if at any time the respondent consents

to a substitution, another immigration

judge may be assigned to complete the

case. The new immigration judge shall

familiarize himself or herself with the

record in the case and shall state for the

record that he or she is familiar with the

record in the case.

§ 246.5 Hearing.

(a) Service counsel. The Government

shall be represented at the hearing by a

Service counsel who shall have

authority to present evidence, and to

interrogate, examine, and cross-examine

the respondent and other witnesses. The

Service counsel is authorized to appeal

from a decision of the immigration

judge pursuant to § 246.7 and to move

for reopening or reconsideration

pursuant to § 3.23 of this chapter.

(b) Opening. The immigration judge

shall advise the respondent of the

nature of the proceeding and the legal

authority under which it is conducted;

advise the respondent of his or her right

to representation, at no expense to the

Government, by counsel or

representative of his or her own choice

qualified under part 292 of this chapter

and require him or her to state then and

there whether he or she desires

representation; advise the respondent

that he or she will have a reasonable

opportunity to examine and object to

the evidence against him or her, to

present evidence in his or her own

behalf, and to cross-examine witnesses

presented by the Government; place the

respondent under oath; read the

allegations in the notice to the

respondent and explain them in

nontechnical language, and enter the

notice and respondent’s answer, if any,

as exhibits in the record.

(c) Pleading by respondent. The

immigration judge shall require the

respondent to state for the record

whether he or she admits or denies the

allegations contained in the notice, or

any of them, and whether he or she

concedes that his or her adjustment of

status should be rescinded. If the

respondent admits all of the allegations

and concedes that the adjustment of

status in his or her case should be

rescinded under the allegations set forth

in the notice, and the immigration judge

is satisfied that no issues of law or fact

remain, he or she may determine that

rescission as alleged has been

established by the respondent’s

admissions. The allegations contained

in the notice shall be taken as admitted

when the respondent, without

reasonable cause, fails or refuses to

attend or remain in attendance at the

hearing.

§ 246.6 Decision and order.

The decision of the immigration judge

may be oral or written. The formal

enumeration of findings is not required.

The order shall direct either that the

proceeding be terminated or that the

adjustment of status be rescinded.

Service of the decision and finality of

the order of the immigration judge shall

be in accordance with, and as stated in

§§ 240.13 (a) and (b) and 240.14 of this

chapter.
10386 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

§ 246.7 Appeals.

Pursuant to 8 CFR part 3, an appeal

shall lie from a decision of an

immigration judge under this part to the

Board of Immigration Appeals. An

appeal shall be taken within 30 days

after the mailing of a written decision or

the stating of an oral decision. The

reasons for the appeal shall be

specifically identified in the Notice of

Appeal (Form EOIR 26); failure to do so

may constitute a ground for dismissal of

the appeal by the Board.

§ 246.8 [Reserved]

§ 246.9 Surrender of Form I–551.

A respondent whose status as a

permanent resident has been rescinded

in accordance with section 246 of the

Act and this part, shall, upon demand,

promptly surrender to the district

director having administrative

jurisdiction over the office in which the

action under this part was taken, the

Form I–551 issued to him or her at the

time of the grant of permanent resident

status.

PART 248—CHANGE OF

NONIMMIGRANT CLASSIFICATION

121. The authority citation for part

248 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1184, 1187,

1258; 8 CFR part 2.

122. Section 248.1 is amended by

revising paragraph (b)(4) to read as

follows:

§ 248.1 Eligibility.

* * * * *

(b) * * *

(4) The alien is not the subject of

removal proceedings under 8 CFR part

240.

* * * * *

PART 249—CREATION OF RECORDS

OF LAWFUL ADMISSION FOR

PERMANENT RESIDENCE

123. The authority citation for part

249 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1259; 8

CFR part 2.

124. Section 249.2 is amended by

revising the first sentence in paragraph

(a) and by revising paragraph (b), to read

as follows:

§ 249.2 Application.

(a) Jurisdiction. An application by an

alien, other than an arriving alien, who

has been served with a notice to appear

or warrant of arrest shall be considered

only in proceedings under 8 CFR part

240. * * *

(b) Decision. The applicant shall be

notified of the decision and, if the

application is denied, of the reasons

therefor. If the application is granted, a

Form I–551, showing that the applicant

has acquired the status of an alien

lawfully admitted for permanent

residence, shall not be issued until the

applicant surrenders any other

document in his or her possession

evidencing compliance with the alien

registration requirements of former or

existing law. No appeal shall lie from

the denial of an application by the

district director. However, an alien,

other than an arriving alien, may renew

the denied application in proceedings

under 8 CFR part 240.

PART 251—ARRIVAL MANIFESTS AND

LISTS: SUPPORTING DOCUMENTS

125. The authority citation for part

251 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1221, 1281,

1282, 8 CFR part 2.

126. Section 251.1 is revised to read

as follows:

§ 251.1 Arrival manifests and lists.

(a) Vessels—(1) General. The master

or agent of every vessel arriving in the

United States from a foreign place or an

outlying possession of the United States

shall present to the immigration officer

at the port where the immigration

inspection is performed a manifest of all

crewmen on board on Form I–418,

Passenger List and Crew List, in

accordance with the instructions

contained thereon.

(2) Longshore work notations. The

master or agent of the vessel shall

indicate in writing immediately below

the name of the last alien listed on the

Form I–418 whether or not crewmen

aboard the vessel will be used to

perform longshore work at any United

States port before the vessel departs the

United States.

(i) If no longshore work will be

performed, no further notation regarding

longshore work is required.

(ii) If longshore work will be

performed, the master or agent shall

note which exception listed in section

258 of the Act permits the work. The

exceptions are:

(A) The hazardous cargo exception;

(B) The prevailing practice exception

in accordance with a port’s collective

bargaining agreements;

(C) The prevailing practice exception

at a port where there is no collective

bargaining agreement, but for which the

vessel files an attestation;

(D) The prevailing practice exception

for automated vessels; and

(E) The reciprocity exception.

(iii) If longshore work will be

performed under the hazardous cargo

exception, the vessel must either be a

tanker or be transporting dry bulk cargo

that qualifies as hazardous. All tankers

qualify for the hazardous cargo

exception, except for a tanker that has

been gas-freed to load non-hazardous

dry bulk commodities.

(A) To invoke the exception for

tankers, the master or agent shall note

on the manifest that the vessel is a

qualifying tanker.

(B) If the vessel is transporting dry

bulk hazardous cargo, the master or

agent shall note on the manifest that the

vessel’s dry bulk cargo is hazardous and

shall show the immigration officer the

dangerous cargo manifest that is signed

by the master or an authorized

representative of the owner, and that

under 46 CFR 148.02 must be kept in a

conspicuous place near the bridge

house.

(iv) If longshore work will be

performed under the prevailing practice

exception, the master or agent shall note

on the manifest each port at which

longshore work will be performed under

this exception. Additionally, for each

port the master or agent shall note either

that:

(A) The practice of nonimmigrant

crewmen doing longshore work is in

accordance with all collective

bargaining agreements covering 30

percent or more of the longshore

workers in the port;

(B) The port has no collective

bargaining agreement covering 30

percent or more of the longshore

workers in the port and an attestation

has been filed with the Secretary of

Labor;

(C) An attestation that was previously

filed is still valid and the vessel

continues to comply with the conditions

stated in that attestation; or

(D) The longshore work consists of

operating an automated, self-unloading

conveyor belt or a vacuum-actuated

system.

(v) If longshore work will be

performed under the reciprocity

exception, the master or agent shall note

on the manifest that the work will be

done under the reciprocity exception,

and will note the nationality of the

vessel’s registry and the nationality or

nationalities of the holders of a majority

of the ownership interest in the vessel.

(3) Exception for certain Great Lakes

vessels. (i) A manifest shall not be

required for a vessel of United States,

Canadian, or British registry engaged

solely in traffic on the Great Lakes or the

St. Lawrence River and connecting

waterways, herein designated as a Great

Lakes vessel, unless:
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10387

(A) The vessel employs nonimmigrant

crewmen who will do longshore work at

a port in the United States; or

(B) The vessel employs crewmen of

other than United States, Canadian, or

British citizenship.

(ii) In either situation, the master shall

note the manifest in the manner

prescribed in paragraph (a)(2) of this

section.

(iii) After submission of a manifest on

the first voyage of a calendar year, a

manifest shall not be required on

subsequent arrivals unless a

nonimmigrant crewman of other than

Canadian or British citizenship is

employed on the vessel who was not

aboard and listed on the last prior

manifest, or a change has occurred

regarding the performance of longshore

work in the United States by

nonimmigrant crewmen, or a change has

occurred in the exception that the

master or agent of the vessel wishes to

invoke which was not noted on the last

prior manifest.

(4) The master or agent of a vessel that

only bunkers at a United States port en

route to another United States port shall

annotate Form I–418 presented at the

onward port to indicate the time, date,

and place of bunkering.

(5) If documentation is required to

support an exception, as described in

§ 258.2 of this chapter, it must

accompany the manifest.

(b) Aircraft. The captain or agent of

every aircraft arriving in the United

States from a foreign place or from an

outlying possession of the United States,

except an aircraft arriving in the United

States directly from Canada on a flight

originating in that country, shall present

to the immigration officer at the port

where the inspection is performed a

manifest on United States Customs

Service Form 7507 or on the

International Civil Aviation

Organization’s General Declaration of all

the alien crewmembers on board,

including alien crewmembers who are

returning to the United States after

taking an aircraft of the same line from

the United States to a foreign place or

alien crewmembers who are entering the

United States as passengers solely for

the purpose of taking an aircraft of the

same line from the United States to a

foreign port. The captain or agent of an

aircraft that only refuels at the United

States en route to another United States

port must annotate the manifest

presented at the onward port to indicate

the time, date, and place of refueling.

The surname, given name, and middle

initial of each alien crewman listed also

shall be shown on the manifest. In

addition, the captain or agent of the

aircraft shall indicate the total number

of United States citizen crewmembers

and total number of alien crewmembers.

(c) Additional documents. The

master, captain, or agent shall prepare

as a part of the manifest, when one is

required for presentation to an

immigration officer, a completely

executed set of Forms I–95, Conditional

Landing Permit, for each nonimmigrant

alien crewman on board, except:

(1) A Canadian or British citizen

crewman serving on a vessel plying

solely between Canada and the United

States; or

(2) A nonimmigrant crewman who is

in possession of an unmutilated Form I–

184, Alien Crewman Landing Permit

and Identification Card, or an

unmutilated Form I–95 with space for

additional endorsements previously

issued to him or her as a member of the

crew of the same vessel or an aircraft of

the same line on his or her last prior

arrival in the United States, following

which he or she departed from the

United States as a member of the crew

of the same vessel or an aircraft of the

same line.

127. Section 251.2 is revised to read

as follows:

§ 251.2 Notification of illegal landings.

As soon as discovered, the master or

agent of any vessel from which an alien

crewman has illegally landed or

deserted in the United States shall

inform the immigration officer in charge

of the port where the illegal landing or

desertion occurred, in writing, of the

name, nationality, passport number and,

if known, the personal description,

circumstances and time of such illegal

landing or desertion of such alien

crewman, and furnish any other

information and documents that might

aid in his or her apprehension,

including any passport surrendered

pursuant to § 252.1(d) of this chapter.

Failure to file notice of illegal landing

or desertion and to furnish any

surrendered passport within 24 hours of

the time of such landing or desertion

becomes known shall be regarded as

lack of compliance with section 251(d)

of the Act.

128. Section 251.3 is revised to read

as follows:

§ 251.3 Departure manifests and lists for

vessels.

(a) Form I–418, Passenger List-Crew

List. The master or agent of every vessel

departing from the United States shall

submit to the immigration officer at the

port from which such vessel is to depart

directly to some foreign place or

outlying possession of the United States,

except when a manifest is not required

pursuant to § 251.1(a), a single Form I–

418 completed in accordance with the

instructions on the form. Submission of

a Form I–418 that lacks any required

endorsement shall be regarded as lack of

compliance with section 251(c) of the

Act.

(b) Exception for certain Great Lakes

vessels. The required list need not be

submitted for Canadian or British

crewmembers of Great Lakes vessels

described in § 251.1(a)(3).

129. Section 251.4 is revised to read

as follows:

§ 251.4 Departure manifests and lists for

aircraft.

(a) United States Customs Service

Form 7507 or International Civil

Aviation Organization’s General

Declaration. The captain or agent of

every aircraft departing from the United

States for a foreign place or an outlying

possession of the United States, except

on a flight departing for and terminating

in Canada, shall submit to the

immigration officer at the port from

which such aircraft is to depart a

completed United States Customs

Service Form 7507 or the International

Civil Aviation Organization’s General

Declaration. The form shall contain a

list of all alien crewmen on board,

including alien crewmen who arrived in

the United States as crewmen on an

aircraft of the same line and who are

departing as passengers. The surname,

given name, and middle initial of each

such alien crewman listed shall be

shown. In addition, the captain or agent

of the aircraft shall indicate the total

number of alien crewmembers and the

total number of United States citizen

crewmembers.

(b) Notification of changes in

employment for aircraft. The agent of

the air transportation line shall

immediately notify in writing the

nearest immigration office of the

termination of employment in the

United States of each alien employee of

the line furnishing the name, birth date,

birthplace, nationality, passport

number, and other available information

concerning such alien. The procedure to

follow in obtaining permission to pay

off or discharge an alien crewman in the

United States after initial immigration

inspection, other than an alien lawfully

admitted for permanent residence, is set

forth in § 252.1(f) of this chapter.

130. Section 251.5 is revised to read

as follows:

§ 251.5 Exemptions for private vessels and

aircraft.

The provisions of this part relating to

submission of arrival and departure

manifests and lists shall not apply to a

private vessel or a private aircraft not
10388 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

engaged directly or indirectly in the

carriage of persons or cargo for hire.

PART 252—LANDING OF ALIEN

CREWMEN

131. The authority citation for part

252 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1184, 1258, 1281,

1282; 8 CFR part 2.

132. Section 252.1 is amended by

revising paragraphs (a) through (c) to

read as follows:

§ 252.1 Examination of crewmen.

(a) Detention prior to examination.

All persons employed in any capacity

on board any vessel or aircraft arriving

in the United States shall be detained on

board the vessel or at the airport of

arrival by the master or agent of such

vessel or aircraft until admitted or

otherwise permitted to land by an

officer of the Service.

(b) Classes of aliens subject to

examination under this part. The

examination of every nonimmigrant

alien crewman arriving in the United

States shall be in accordance with this

part except that the following classes of

persons employed on vessels or aircraft

shall be examined in accordance with

the provisions of 8 CFR parts 235 and

240:

(1) Canadian or British citizen

crewmen serving on vessels plying

solely between Canada and the United

States; or

(2) Canadian or British citizen

crewmen of aircraft arriving in a State

of the United States directly from

Canada on flights originating in that

country. The crew of a vessel arriving at

a United States port that may not

require inspection by or clearance from

the United States Customs Service is,

nevertheless, subject to examination

under this part; however, the master of

such a vessel is not required to present

Form I–95 for any crewman who is not

an applicant for a conditional landing

permit.

(c) Requirements for landing permits.

Every alien crewman applying for

landing privileges in the United States

must make his or her application in

person before an immigration officer,

present whatever documents are

required, be photographed and

fingerprinted as the district director may

require, and establish to the satisfaction

of the immigration officer that he or she

is not inadmissible under any provision

of the law and is entitled clearly and

beyond doubt to landing privileges in

the United States.

* * * * *

133. Section 252.2 is revised to read

as follows:

§ 252.2 Revocation of conditional landing

permits; removal.

(a) Revocation and removal while

vessel is in the United States. A

crewman whose landing permit is

subject to revocation pursuant to section

252(b) of the Act may be taken into

custody by any immigration officer

without a warrant of arrest and be

transferred to the vessel of arrival, if the

vessel is in any port in the United States

and has not departed foreign since the

crewman was issued his or her

conditional landing permit. Detention

and removal of the crewman shall be at

the expense of the transportation line on

which the crewman arrived. Removal

may be effected on the vessel of arrival

or, if the master of the vessel has

requested in writing, by alternate means

if removal on the vessel of arrival is

impractical.

(b) Revocation and removal after

vessel has departed the United States. A

crewman who was granted landing

privileges prior to April 1, 1997, and

who has not departed foreign on the

vessel of arrival, or on another vessel or

aircraft if such permission was granted

pursuant to § 252.1(f), is subject to

removal proceedings under section 240

of the Act as an alien deportable

pursuant to section 237(a)(1)(C)(i) of the

Act. A crewman who was granted

landing privileges on or after April 1,

1997, and who has not departed foreign

on the vessel of arrival, or on another

vessel or aircraft if such permission was

granted pursuant to § 252.1(f), shall be

removed from the United States without

a hearing, except as provided in

§ 208.2(b)(1) of this chapter. In either

case, if the alien is removed within 5

years of the date of landing, removal of

the crewman shall be at the expense of

the owner of the vessel. In the case of

a crewman ordered removed more than

5 years after the date of landing,

removal shall be at the expense of the

appropriation for the enforcement of the

Act.

134. Section 252.3 is revised to read

as follows:

§ 252.3 Great Lakes vessels and tugboats

arriving in the United States from Canada;

special procedures.

(a) United States vessels and tugboats.

An immigration examination shall not

be required of any crewman aboard a

Great Lakes vessel of United States

registry or a tugboat of United States

registry arriving from Canada at a port

of the United States who has been

examined and admitted by an

immigration officer as a member of the

crew of the same vessel or tugboat or of

any other vessel or tugboat of the same

company during the current calendar

year.

(b) Canadian or British vessels or

tugboats. An alien crewman need not be

presented for inspection if the alien

crewman:

(1) Serves aboard a Great Lakes vessel

of Canadian or British registry or aboard

a tugboat of Canadian or British registry

arriving at a United States port-of-entry

from Canada;

(2) Seeks admission for a period of

less than 29 days;

(3) Has, during the current calendar

year, been inspected and admitted by an

immigration officer as a member of the

crew of the same vessel or tugboat, or

of any other vessel or tugboat of the

same company;

(4) Is either a British or Canadian

citizen or is in possession of a valid

Form I–95 previously issued to him or

her as a member of the crew of the same

vessel or tugboat, or of any other vessel

or tugboat of the same company;

(5) Does not request or require landing

privileges in the United States beyond

the time the vessel or tugboat will be in

port; and,

(6) Will depart to Canada with the

vessel or tugboat.

135. Section 252.4 is revised to read

as follows:

§ 252.4 Permanent landing permit and

identification card.

A Form I–184 is valid until revoked.

It shall be revoked when an immigration

officer finds that the crewman is in the

United States in willful violation of the

terms and conditions of his or her

permission to land, or that he or she is

inadmissible to the United States. On

revocation, the Form I–184 shall be

surrendered to an immigration officer.

No appeal shall lie from the revocation

of Form I–184.

136. Section 252.5 is revised to read

as follows:

§ 252.5 Special procedures for deserters

from Spanish or Greek ships of war.

(a) General. Under E.O. 11267 of

January 19, 1966 (31 FR 807) and 28

CFR 0.109, and E.O. 11300 of August 17,

1966, (31 FR 11009), and 28 CFR 0.110,

the Commissioner and immigration

officers (as defined in § 103.1(j) of this

chapter) are designated as ‘‘competent

national authorities’’ on the part of the

United States within the meaning of

Article XXIV of the 1903 Treaty of

Friendship and General Relations

between the United States and Spain (33

Stat. 2105, 2117), and ‘‘local

authorities’’ and ‘‘competent officers’’

on the part of the United States within

the meaning of Article XIII of the

Convention between the United States

and Greece (33 Stat. 2122, 2131).
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10389

(b) Application for restoration. On

application of a Consul General, Consul,

Vice-Consul, or Consular-Agent of the

Spanish or Greek Government, made in

writing pursuant to Article XXIV of the

treaty, or Article XIII of the Convention,

respectively, stipulating for the

restoration of crewmen deserting,

stating that the person named therein

has deserted from a ship of war of that

government, while in any port of the

United States, and on proof by the

exhibition of the register, crew list, or

official documents of the vessel, or a

copy or extract therefrom, duly certified,

that the person named belonged, at the

time of desertion, to the crew of such

vessel, such person shall be taken into

custody by any immigration officer

without a warrant of arrest. Written

notification of charges shall be served

on the alien when he or she is taken into

custody or as soon as practical

thereafter.

(c) Examination. Within a reasonable

period of time after the arrest, the alien

shall be accorded an examination by the

district director, acting district director,

or the deputy district director having

jurisdiction over the place of arrest. The

alien shall be informed that he or she

may have the assistance of or be

represented by a counsel or

representative of his or her choice

qualified under 8 CFR part 292 without

expense to the Government, and that he

or she may present such evidence in his

or her behalf as may be relevant to this

proceeding. If, upon the completion of

such examination, it is determined that:

(1) The individual sought by the

Spanish or Greek authorities had

deserted from a Spanish or Greek ship

of war in a United States port;

(2) The individual actually arrested

and detained is the person sought;

(3) The individual is not a citizen of

the United States; and

(4) The individual had not previously

been arrested for the same cause and set

at liberty because he or she had been

detained for more than 3 months, or

more than 2 months in the case of a

deserter from a Greek ship of war, from

the day of his or her arrest without the

Spanish or Greek authorities having

found an opportunity to send him or her

home, the individual shall be served

with a copy of the findings, from which

no appeal shall lie, and be surrendered

forthwith to the Spanish or Greek

authorities if they are prepared to

remove him or her from the United

States. On written request of the

Spanish or Greek authorities, the

individual shall be detained, at their

expense, for a period not exceeding 3

months or 2 months, respectively, from

the day of arrest to afford opportunity to

arrange for his or her departure from the

United States.

(d) Timely departure not effected. If

the Spanish authorities delay in sending

the individual home for more than 3

months, or if the Greek authorities delay

in sending the individual home for more

than 2 months, from the day of his or

her arrest, the individual shall be dealt

with as any other alien unlawfully in

the United States under the removal

provisions of the Act, as amended.

(e) Commission of crime. If the

individual has committed any crime or

offense in the United States, he or she

shall not be placed at the disposal of the

consul until after the proper tribunal

having jurisdiction in his or her case

shall have pronounced sentence, and

such sentence shall have been executed.

PART 253—PAROLE OF ALIEN

CREWMEN

137. The authority citation for part

253 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1282, 1283,

1285; 8 CFR part 2.

138. In § 253.1, paragraph (f) is

revised to read as follows:

§ 253.1 Parole.

* * * * *

(f) Crewman, stowaway, or alien

removable under section 235(c) alleging

persecution. Any alien crewman,

stowaway, or alien removable under

section 235(c) of the Act who alleges

that he or she cannot return to his or her

country of nationality or last habitual

residence (if not a national of any

country) because of fear of persecution

in that country on account of race,

religion, nationality, membership in a

particular social group, or political

opinion, is eligible to apply for asylum

or withholding of removal under 8 CFR

part 208. Service officers shall take

particular care to ensure that the

provisions of § 208.5(b) of this chapter

regarding special duties toward aliens

aboard certain vessels are closely

followed.

* * * * *

PART 274a—CONTROL OF

EMPLOYMENT OF ALIENS

139. The authority citation for part

274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8

CFR part 2.

140. Section 274a.12 is amended by:

a. Revising paragraphs (a)(10) and

(12);

b. Revising paragraphs (c)(8) and (10);

c. Revising paragraph (c)(12); and by

d. Revising paragraph (c)(18), to read

as follows:

§ 274a.12 Classes of aliens authorized to

accept employment.

(a) * * *

(10) An alien granted withholding of

deportation or removal for the period of

time in that status, as evidenced by an

employment authorization document

issued by the Service;

* * * * *

(12) An alien granted Temporary

Protected Status under section 244 of

the Act for the period of time in that

status, as evidenced by an employment

authorization document issued by the

Service; or

* * * * *

(c) * * *

(8) An alien who has filed a complete

application for asylum or withholding

of deportation or removal pursuant to 8

CFR part 208, whose application:

(i) Has not been decided, and who is

eligible to apply for employment

authorization under § 208.7 of this

chapter because the 150-day period set

forth in that section has expired.

Employment authorization may be

granted according to the provisions of

§ 208.7 of this chapter in increments to

be determined by the Commissioner and

shall expire on a specified date; or

(ii) Has been recommended for

approval, but who has not yet received

a grant of asylum or withholding or

deportation or removal;

* * * * *

(10) An alien who has filed an

application for suspension of

deportation under section 244 of the Act

(as it existed prior to April 1, 1997) or

cancellation of removal pursuant to

section 240A of the Act. Employment

authorization shall be granted in

increments not exceeding one year

during the period the application is

pending (including any period when an

administrative appeal or judicial review

is pending) and shall expire on a

specified date;

* * * * *

(12) An alien granted benefits under

the Family Unity provisions of section

301 of IMMACT 90 and the provisions

of part 236, Subpart B of this chapter.

* * * * *

(18) An alien against whom a final

order of deportation or removal exists

and who is released on an order of

supervision under the authority

contained in section 241(a)(3) of the Act

may be granted employment

authorization in the discretion of the

district director only if the alien cannot

be removed due to the refusal of all

countries designated by the alien or

under section 241 of the Act to receive

the alien, or because the removal of the

alien is otherwise impracticable or
10390 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

contrary to the public interest.

Additional factors which may be

considered by the district director in

adjudicating the application for

employment authorization include, but

are not limited to, the following:

(i) The existence of economic

necessity to be employed;

(ii) The existence of a dependent

spouse and/or children in the United

States who rely on the alien for support;

and

(iii) The anticipated length of time

before the alien can be removed from

the United States.

* * * * *

PART 286—IMMIGRATION USER FEE

141. The authority citation for part

286 continues to read as follows:

Authority: 8 U.S.C. 1103, 1356; 8 CFR part

2.

142. In § 286.9, paragraph (b)(3) is

revised to read as follows:

§ 286.9 Fee for processing applications

and issuing documentation at land border

Ports-of-Entry.

* * * * *

(b) * * *

(3) A Mexican national in possession

of a valid nonresident alien border

crossing card or nonimmigrant B–1/B–2

visa who is required to be issued Form

I–94, Arrival/Departure Record,

pursuant to § 235.1(f) of this chapter,

must remit the required fee for issuance

of Form I–94 upon determination of

admissibility.

* * * * *

PART 287—FIELD OFFICERS;

POWERS AND DUTIES

143. The authority citation for part

287 continues to read as follows:

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

1251, 1252, 1357; 8 CFR part 2.

144. Section 287.3 is revised to read

as follows:

§ 287.3 Disposition of cases of aliens

arrested without warrant.

(a) Examination. An alien arrested

without a warrant of arrest under the

authority contained in section 287(a)(2)

of the Act will be examined by an

officer other than the arresting officer. If

no other qualified officer is readily

available and the taking of the alien

before another officer would entail

unnecessary delay, the arresting officer,

if the conduct of such examination is a

part of the duties assigned to him or her,

may examine the alien.

(b) Determination of proceedings. If

the examining officer is satisfied that

there is prima facie evidence that the

arrested alien was entering, attempting

to enter, or is present in the United

States in violation of the immigration

laws, the examining officer will refer the

case to an immigration judge for further

inquiry in accordance with 8 CFR parts

235, 239, or 240, order the alien

removed as provided for in section

235(b)(1) of the Act and § 235.3(b) of

this chapter, or take whatever other

action may be appropriate or required

under the laws or regulations applicable

to the particular case.

(c) Notifications and information.

Except in the case of an alien subject to

the expedited removal provisions of

section 235(b)(1)(A) of the Act, an alien

arrested without warrant and placed in

formal proceedings under section 238 or

240 of the Act will be advised of the

reasons for his or her arrest and the right

to be represented at no expense to the

Government. The examining officer will

provide the alien with a list of the

available free legal services provided by

organizations and attorneys qualified

under 8 CFR part 3 and organizations

recognized under § 292.2 of this chapter

that are located in the district where the

hearing will be held. The examining

officer shall note on Form I–862 that

such a list was provided to the alien.

The officer will also advise the alien

that any statement made may be used

against him or her in a subsequent

proceeding.

(d) Custody procedures. Unless

voluntary departure has been granted

pursuant to subpart C of 8 CFR part 240,

a determination will be made within 24

hours of the arrest whether the alien

will be continued in custody or released

on bond or recognizance and whether a

notice to appear and warrant of arrest as

prescribed in 8 CFR parts 236 and 239

will be issued.

145. In § 287.4, paragraph (d) is

revised to read as follows:

§ 287.4 Subpoena.

* * * * *

(d) Invoking aid of court. If a witness

neglects or refuses to appear and testify

as directed by the subpoena served

upon him or her in accordance with the

provisions of this section, the officer or

immigration judge issuing the subpoena

shall request the United States Attorney

for the district in which the subpoena

was issued to report such neglect or

refusal to the United States District

Court and to request such court to issue

an order requiring the witness to appear

and testify and to produce the books,

papers, or documents designated in the

subpoena.

146. In § 287.5, paragraphs (b) through

(f) are revised to read as follows:

§ 287.5 Exercise of power by immigration

officers.

* * * * *

(b) Power and authority to patrol the

border. The following immigration

officers who have successfully

completed basic immigration law

enforcement training are hereby

authorized and designated to exercise

the power to patrol the border conferred

by section 287(a)(3) of the Act:

(1) Border patrol agents, including

aircraft pilots;

(2) Special agents;

(3) Immigration inspectors (seaport

operations only);

(4) Adjudications officers and

deportation officers when in the

uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections

(seaport operations only);

(5) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(6) Immigration officers who need the

authority to patrol the border under

section 287(a)(3) of the Act in order to

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner.

(c) Power and authority to arrest—(1)

Arrests of aliens under section 287(a)(2)

of the Act for immigration violations.

The following immigration officers who

have successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the arrest power conferred by

section 287(a)(2) of the Act and in

accordance with § 287.8(c):

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Deportation officers;

(iv) Immigration inspectors;

(v) Adjudications officers;

(vi) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(vii) Immigration officers who need

the authority to arrest aliens under

section 287(a)(2) of the Act in order to

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner.

(2) Arrests of persons under section

287(a)(4) of the Act for felonies

regulating the admission or removal of

aliens. The following immigration

officers who have successfully

completed basic immigration law

enforcement training are hereby

authorized and designated to exercise
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10391

the arrest power conferred by section

287(a)(4) of the Act and in accordance

with § 287.8(c):

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Deportation officers;

(iv) Immigration inspectors;

(v) Adjudications officers;

(vi) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(vii) Immigration officers who need

the authority to arrest persons under

section 287(a)(4) of the Act in order to

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner with the approval of the

Deputy Attorney General.

(3) Arrests of persons under section

287(a)(5)(A) of the Act for any offense

against the United States. The following

immigration officers who have

successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the arrest power conferred by

section 287(a)(5)(A) of the Act and in

accordance with § 287.8(c):

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Deportation officers;

(iv) Immigration inspectors

(permanent full-time immigration

inspectors only);

(v) Adjudications officers when in the

uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections;

(vi) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(vii) Immigration officers who need

the authority to arrest persons under

section 287(a)(5)(A) of the Act in order

to effectively accomplish their

individual missions and who are

designated, individually or as a class, by

the Commissioner with the approval of

the Deputy Attorney General.

(4) Arrests of persons under section

287(a)(5)(B) of the Act for any felony. (i)

Section 287(a)(5)(B) of the Act

authorizes designated immigration

officers, as listed in paragraph (c)(4)(iii)

of this section, to arrest persons,

without warrant, for any felony

cognizable under the laws of the United

States if:

(A) The immigration officer has

reasonable grounds to believe that the

person to be arrested has committed or

is committing such a felony;

(B) The immigration officer is

performing duties relating to the

enforcement of the immigration laws at

the time of the arrest;

(C) There is a likelihood of the person

escaping before a warrant can be

obtained for his or her arrest; and

(D) The immigration officer has been

certified as successfully completing a

training program that covers such

arrests and the standards with respect to

the enforcement activities of the Service

as defined in § 287.8.

(ii) The following immigration officers

who have successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the arrest power conferred by

section 287(a)(5)(B) of the Act and in

accordance with § 287.8(c):

(A) Border patrol agents, including

aircraft pilots;

(B) Special agents;

(C) Deportation officers;

(D) Immigration inspectors

(permanent full-time immigration

inspectors only);

(E) Adjudications officers when in the

uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections;

(F) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(G) Immigration officers who need the

authority to arrest persons under section

287(a)(5)(B) of the Act in order to

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner with the approval of the

Deputy Attorney General.

(iii) Notwithstanding the

authorization and designation set forth

in paragraph (c)(4)(ii) of this section, no

immigration officer is authorized to

make an arrest for any felony under the

authority of section 287(a)(5)(B) of the

Act until such time as he or she has

been certified by the Director of

Training as successfully completing a

training course encompassing such

arrests and the standards for

enforcement activities as defined in

§ 287.8. Such certification shall be valid

for the duration of the immigration

officer’s continuous employment, unless

it is suspended or revoked by the

Commissioner or the Commissioner’s

designee for just cause.

(5) Arrests of persons under section

274(a) of the Act who bring in,

transport, or harbor certain aliens, or

induce them to enter. (i) Section 274(a)

of the Act authorizes designated

immigration officers, as listed in

paragraph (c)(5)(ii) of this section, to

arrest persons who bring in, transport,

or harbor aliens, or induce them to enter

the United States in violation of law.

When making an arrest, the designated

immigration officer shall adhere to the

provisions of the enforcement standard

governing the conduct of arrests in

§ 287.8(c).

(ii) The following immigration officers

who have successfully completed basic

immigration law enforcement training

are authorized and designated to

exercise the arrest power conferred by

section 274(a) of the Act:

(A) Border patrol agents, including

aircraft pilots;

(B) Special agents;

(C) Deportation officers;

(D) Immigration inspectors;

(E) Adjudications officers when in the

uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections;

(F) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(G) Immigration officers who need the

authority to arrest persons under section

274(a) of the Act in order to effectively

accomplish their individual missions

and who are designated, individually or

as a class, by the Commissioner with the

approval of the Deputy Attorney

General.

(6) Custody and transportation of

previously arrested persons. In addition

to the authority to arrest pursuant to a

warrant of arrest in paragraph (e)(3)(iv)

of this section, detention enforcement

officers who have successfully

completed basic immigration law

enforcement training are hereby

authorized and designated to take and

maintain custody of and transport any

person who has been arrested by an

immigration officer pursuant to

paragraphs (c)(1) through (c)(5) of this

section.

(d) Power and authority to conduct

searches. The following immigration

officers who have successfully

completed basic immigration law

enforcement training are hereby

authorized and designated to exercise

the power to conduct searches conferred

by section 287(c) of the Act:

(1) Border patrol agents, including

aircraft pilots;

(2) Special agents;

(3) Deportation officers;

(4) Immigration inspectors;

(5) Adjudications officers;

(6) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(7) Immigration officers who need the

authority to conduct searches under

section 287(c) of the Act in order to
10392 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner.

(e) Power and authority to execute

warrants—(1) Search warrants. The

following immigration officers who

have successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the power conferred by section

287(a) of the Act to execute a search

warrant:

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph, and

(iv) Immigration officers who need the

authority to execute search warrants

under section 287(a) of the Act in order

to effectively accomplish their

individual missions and who are

designated, individually or as a class, by

the Commissioner with the approval of

the Deputy Attorney General.

(2) Issuance of arrest warrants for

immigration violations. A warrant of

arrest may be issued only by the

following immigration officers:

(i) District directors (except foreign);

(ii) Deputy district directors (except

foreign);

(iii) Assistant district directors for

investigations;

(iv) Deputy assistant district directors

for investigations;

(v) Assistant district directors for

deportation;

(vi) Deputy assistant district directors

for deportation;

(vii) Assistant district directors for

examinations;

(viii) Deputy assistant district

directors for examinations;

(ix) Officers in charge (except foreign);

(x) Assistant officers in charge (except

foreign);

(xi) Chief patrol agents;

(xii) Deputy chief patrol agents;

(xiii) Associate chief patrol agents;

(xiv) Assistant chief patrol agents;

(xv) Patrol agents in charge;

(xvi) The Assistant Commissioner,

Investigations;

(xvii) Institutional Hearing Program

directors;

(xviii) Area port directors;

(xix) Port directors; or

(xx) Deputy port directors.

(3) Service of warrant of arrests for

immigration violations. The following

immigration officers who have

successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the power pursuant to section

287(a) of the Act to execute warrants of

arrest for administrative immigration

violations issued under section 236 of

the Act or to execute warrants of

criminal arrest issued under the

authority of the United States:

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Deportation officers;

(iv) Detention enforcement officers

(warrants of arrest for administrative

immigration violations only);

(v) Immigration inspectors;

(vi) Adjudications officers when in

the uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections;

(vii) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(viii) Immigration officers who need

the authority to execute arrest warrants

for immigration violations under section

287(a) of the Act in order to effectively

accomplish their individual missions

and who are designated, individually or

as a class, by the Commissioner, for

warrants of arrest for administrative

immigration violations, and with the

approval of the Deputy Attorney

General, for warrants of criminal arrest.

(4) Service of warrant of arrests for

non-immigration violations. The

following immigration officers who

have successfully completed basic

immigration law enforcement training

are hereby authorized and designated to

exercise the power to execute warrants

of criminal arrest for non-immigration

violations issued under the authority of

the United States:

(i) Border patrol agents, including

aircraft pilots;

(ii) Special agents;

(iii) Deportation officers;

(iv) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(v) Immigration officers who need the

authority to execute warrants of arrest

for non-immigration violations under

section 287(a) of the Act in order to

effectively accomplish their individual

missions and who are designated,

individually or as a class, by the

Commissioner with the approval of the

Deputy Attorney General.

(f) Power and authority to carry

firearms. The following immigration

officers who have successfully

completed basic immigration

enforcement training are hereby

authorized and designated to exercise

the power conferred by section 287(a) of

the Act to carry firearms provided that

they are individually qualified by

training and experience to handle and

safely operate the firearms they are

permitted to carry, maintain proficiency

in the use of such firearms, and adhere

to the provisions of the enforcement

standard governing the use of force in

§ 287.8(a):

(1) Border patrol agents, including

aircraft pilots;

(2) Special agents;

(3) Deportation officers;

(4) Detention enforcement officers;

(5) Immigration inspectors;

(6) Adjudications officers when in the

uniform of an immigration inspector

and performing inspections or

supervising other immigration

inspectors performing inspections;

(7) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(8) Immigration officers who need the

authority to carry firearms under section

287(a) of the Act in order to effectively

accomplish their individual missions

and who are designated, individually or

as a class, by the Commissioner with the

approval of the Deputy Attorney

General.

147. Section 287.7 is revised to read

as follows:

§ 287.7 Detainer provisions under section

287(d)(3) of the Act.

(a) Detainers in general. Detainers are

issued pursuant to sections 236 and 287

of the Act and this chapter. Any

authorized Service official may at any

time issue a Form I–247, Immigration

Detainer-Notice of Action, to any other

Federal, State, or local law enforcement

agency. A detainer serves to advise

another law enforcement agency that the

Service seeks custody of an alien

presently in the custody of that agency,

for the purpose of arresting and

removing the alien. The detainer is a

request that such agency advise the

Service, prior to release of the alien, in

order for the Service to arrange to

assume custody, in situations when

gaining immediate physical custody is

either impracticable or impossible.

(b) Authority to issue detainers. The

following officers are authorized to

issue detainers:

(1) Border patrol agents, including

aircraft pilots;

(2) Special agents;

(3) Deportation officers;

(4) Immigration inspectors;

(5) Adjudications officers;

(6) Supervisory and managerial

personnel who are responsible for

supervising the activities of those

officers listed in this paragraph; and

(7) Immigration officers who need the

authority to issue detainers under
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10393

section 287(d)(3) of the Act in order to

effectively accomplish their individual

missions and who are designated

individually or as a class, by the

Commissioner.

(c) Availability of records. In order for

the Service to accurately determine the

propriety of issuing a detainer, serving

a notice to appear, or taking custody of

an alien in accordance with this section,

the criminal justice agency requesting

such action or informing the Service of

a conviction or act that renders an alien

inadmissible or removable under any

provision of law shall provide the

Service with all documentary records

and information available from the

agency that reasonably relates to the

alien’s status in the United States, or

that may have an impact on conditions

of release.

(d) Temporary detention at Service

request. Upon a determination by the

Service to issue a detainer for an alien

not otherwise detained by a criminal

justice agency, such agency shall

maintain custody of the alien for a

period not to exceed 48 hours,

excluding Saturdays, Sundays, and

holidays in order to permit assumption

of custody by the Service.

(e) Financial responsibility for

detention. No detainer issued as a result

of a determination made under this

chapter shall incur any fiscal obligation

on the part of the Service, until actual

assumption of custody by the Service,

except as provided in paragraph (d) of

this section.

PART 299—IMMIGRATION FORMS

148. The authority citation for part

299 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part

2.

149. Section 299.1 is amended by:

a. Revising the entries for Forms ‘‘I–

147’’, ‘‘I–205’’, ‘‘I–246’’, ‘‘I–247’’, ‘‘I–

259’’, ‘‘I–284’’, ‘‘I–286’’, ‘‘I–291’’, ‘‘I–

296’’, ‘‘I–408’’, ‘‘I–541’’, ‘‘I–589’’, ‘‘I–

775’’, ‘‘I–851’’, and ‘‘I–851A’’;

b. Removing the entries for Forms I–

122’’, ‘‘I–221’’, ‘‘I–259C’’, ‘‘I–290A’’, and

‘‘I–444’’, and by

c. Adding the entries for Forms ‘‘I–

94T’’, ‘‘I–99’’, ‘‘I–148’’, ‘‘I–160’’, ‘‘I–

210’’, ‘‘I–213’’, ‘‘I–217’’, ‘‘I–220A’’, ‘‘I–

220B’’, ‘‘I–241’’, ‘‘I–261’’, ‘‘I–270’’, ‘‘I–

275’’, ‘‘I–294’’, ‘‘I–407’’, ‘‘I–546’’, ‘‘I–

701’’, ‘‘I–770’’, ‘‘I–771’’, ‘‘I–826’’, ‘‘I–

827B’’, ‘‘I–860’’, ‘‘I–862’’, ‘‘I–863’’, ‘‘I–

867AB’’, and ‘‘I–869’’ in proper

numerical sequence, to the listing of

forms, to read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition date Title

* * * * * * *

I–94T ................................. 09–22–87 ......................... Arrival-Departure Record (Transit without visa).

* * * * * * *

I–99 ................................... 04–01–97 ......................... Notice of Revocation and Penalty.

* * * * * * *

I–147 ................................. 04–01–97 ......................... Notice of Temporary Inadmissibility to U.S.

I–148 ................................. 04–01–97 ......................... Notice of Permanent Inadmissibility.

I–160 ................................. 04–01–97 ......................... Notice of Parole/Lookout Intercept.

* * * * * * *

I–205 ................................. 04–01–97 ......................... Warrant of Removal.

I–210 ................................. 04–01–97 ......................... Notice of Action—Voluntary Departure.

* * * * * * *

I–213 ................................. 04–01–97 ......................... Record of Deportable/Inadmissible Alien.

I–217 ................................. 04–01–97 ......................... Information for Travel Document or Passport.

I–220A .............................. 04–01–97 ......................... Order of Release on Recognizance.

I–220B .............................. 04–01–97 ......................... Order of Supervision.

* * * * * * *

I–241 ................................. 04–01–97 ......................... Request for Travel Document to Country Designated by Alien.

* * * * * * *

I–246 ................................. 04–01–97 ......................... Application for Stay of Removal.

I–247 ................................. 04–01–97 ......................... Immigration Detainer—Notice of Action.

I–259 ................................. 04–01–97 ......................... Notice to Detain, Deport, Remove, or Present Aliens.

* * * * * * *

I–261 ................................. 04–01–97 ......................... Additional Charges of Removability.

I–270 ................................. 04–01–97 ......................... Request for Consent to Return Person to Canada.

I–275 ................................. 04–01–97 ......................... Withdrawal of Application/Consular Notification.

I–284 ................................. 04–01–97 ......................... Notice to Transportation Line Regarding Deportation and Detention Expenses of Detained Alien.

I–286 ................................. 04–01–97 ......................... Notification to Alien of Conditions of Release or Detention.

* * * * * * *

I–291 ................................. 04–01–97 ......................... Decision on Application for Status as Permanent Resident.

* * * * * * *

I–294 ................................. 04–01–97 ......................... Notice of Country to Which Deportation has been Directed and Penalty for Reentry

without Permission.

I–296 ................................. 04–01–97 ......................... Notice to Alien Ordered Removed.

* * * * * * *

I–407 ................................. 04–01–97 ......................... Abandonment by Alien of Status as Lawful Permanent Resident.

I–408 ................................. 04–01–97 ......................... Application to Pay Off or Discharge Alien Crewman.
10394 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

Form No. Edition date Title

* * * * * * *

I–541 ................................. 04–01–97 ......................... Order of Denial of Application for Extension of Stay or Student Employment or Student

Transfer.

* * * * * * *

I–546 ................................. 04–01–97 ......................... Order to Appear—Deferred Inspection.

* * * * * * *

I–589 ................................. 04–01–97 ......................... Application for Asylum and Withholding of Removal.

* * * * * * *

I–701 ................................. 04–01–97 ......................... Detainee Transfer Worksheet.

* * * * * * *

I–770 ................................. 04–01–97 ......................... Notice of Rights and Request for Disposition.

I–771 ................................. 04–01–97 ......................... Bond Computation Worksheet.

I–775 ................................. 04–01–97 ......................... Visa Waiver Pilot Program Agreement.

* * * * * * *

I–826 ................................. 04–01–97 ......................... Notice of Rights and Request for Disposition

I–851 ................................. 04–01–97 ......................... Notice of Intent to Issue Final Administrative Removal Order.

I–851A .............................. 04–01–97 ......................... Final Administrative Removal Order.

* * * * * * *

I–860 ................................. 04–01–97 ......................... Notice and Order of Expedited Removal.

I–862 ................................. 04–01–97 ......................... Notice to Appear.

I–863 ................................. 04–01–97 ......................... Notice of Referral to Immigration Judge.

I–867AB ............................ 04–01–97 ......................... Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

I–869 ................................. 04–01–97 ......................... Record of Negative Credible Fear Finding and Request for Review by Immigration

Judge.

* * * * * * *

150. Section 299.5 is amended by:

a. Removing the entry for Form ‘‘I–259C’’; and by

b. Revising the entries for Forms ‘‘I–246’’ and ‘‘I–589’’, and to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form no. INS form title

Currently

assigned

OMB control no.

* * * * * * *

I–246 Application for Stay of Removal ............................................................................................................... 1115–0055

* * * * * * *

I–589 Application for Asylum and Withholding of Removal ............................................................................... 1115–0086

* * * * * * *

PART 316—GENERAL

REQUIREMENTS FOR

NATURALIZATION

151. The authority citation for part

316 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1181, 1182, 1443,

1447; 8 CFR part 2.

152. Section 316.5 is amended by

revising paragraph (c)(3) to read as

follows:

§ 316.5 Residence in the United States.

* * * * *

(c) * * *

(3) Removal and return. Any

departure from the United States while

under an order of removal (including

previously issued orders of exclusion or

deportation) terminates the applicant’s

status as a lawful permanent resident

and, therefore, disrupts the continuity of

residence for purposes of this part.

* * * * *

PART 318—PENDING REMOVAL

PROCEEDINGS

153. The heading for part 318 is

revised as set forth above.

154. The authority citation for part

318 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1252, 1429, 1443;

8 CFR part 2.

155. Section 318.1 is revised to read

as follows:

§ 318.1 Warrant of arrest.

For the purposes of section 318 of the

Act, a notice to appear issued under 8

CFR part 239 (including a charging

document issued to commence

proceedings under sections 236 or 242

of the Act prior to April 1, 1997) shall

be regarded as a warrant of arrest.

PART 329—SPECIAL CLASSES OF

PERSONS WHO MAY BE

NATURALIZED: NATURALIZATION

BASED UPON ACTIVE DUTY SERVICE

IN THE UNITED STATES ARMED

FORCES DURING SPECIFIED

PERIODS OF HOSTILITIES

156. The authority citation for part

329 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1440, 1443; 8

CFR part 2.
Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations 10395

159 Section 329.2 is amended by

revising paragraph (e)(3) to read as

follows:

§ 329.2 Eligibility.

* * * * *

(e) * * *

(3) The applicant may be naturalized

even if an outstanding notice to appear

pursuant to 8 CFR part 239 (including

a charging document issued to

commence proceedings under sections

236 or 242 of the Act prior to April 1,

1997) exists.

Dated: February 26, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97–5250 Filed 2–28–97; 3:29 pm]

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