Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26351

(3) Current Non-problem

Classification—Those loans that are

current and are in compliance with all

loan conditions and B&I regulations but

do not meet all the criteria for a

Seasoned Loan classification. All loans

not classified as Seasoned or Current

Non-problem will be reported on the

quarterly status report with

documentation of the details of the

reason(s) for the assigned classification.

* * * * *

Dated: March 28, 1995.

Michael V. Dunn,

Acting Under Secretary, Rural Economic and

Community Development.

[FR Doc. 95–12154 Filed 5–16–95; 8:45 am]

BILLING CODE 3410–32–U

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 103F; AG Order No. 1966–95]

RIN 1125–AA03

Executive Office for Immigration

Review; Stipulated Requests for

Deportation or Exclusion Orders,

Telephonic, Video Electronic Media

Hearings

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule amends 8 CFR

3.25 by codifying an Immigration

Judge’s discretion to enter an order of

deportation or exclusion without a

hearing if satisfied that the alien

voluntarily entered into a pleanegotiated or otherwise stipulated

request for an order of deportation or

exclusion. It further codifies the practice

of Immigration Judges conducting

telephonic hearings in deportation,

exclusion, or recission cases, and

codifies the authority of the Immigration

Judge to hold video electronic media

hearings.

The proposed rule also clarifies the

language in § 3.25(a) to conform with in

absentia hearing provisions under the

Immigration and Nationality Act (the

‘‘Act’’), 8 U.S.C. 1252, 1252b.

EFFECTIVE DATE: June 16, 1995.

FOR FURTHER INFORMATION CONTACT:

Gerald S. Hurwitz, Counsel to the

Director, Executive Office for

Immigration Review, suite 2400, 5107

Leesburg Pike, Falls Church, Virginia

22041 (703) 305–0470.

SUPPLEMENTARY INFORMATION: The

Department of Justice published a

proposed rule on May 13, 1994 (59 FR

24976). The proposed rule sought to

amend § 3.25 of title 8, CFR, to require

an Immigration Judge to enter an order

of deportation or exclusion on the

written record, without an in-person

hearing, based upon the stipulated

written request of the respondent/

applicant and the government under

certain specified circumstances. The

requirement to enter orders of

deportation or exclusion based on the

written record would arise only in

instances where the Immigration Judge

determined that the charging document

set forth a valid basis for deportability

or excludability; the stipulated request

for an order of deportation or exclusion

was voluntarily entered into by the

respondent/applicant; and the

respondent/applicant specifically

waived relief from deportation or

exclusion as well as the described

hearing rights.

The rule also proposed to establish

the authority of the Immigration Judge

to hold telephonic hearings and video

electronic media hearings. Additionally,

the proposed rule made minor technical

changes in paragraph (a) to conform

with the in absentia provisions of 8

U.S.C. 1252.

The Executive Office for Immigration

Review (‘‘EOIR’’ or ‘‘the Agency’’)

received eighteen comments concerning

the proposed rule. The comments

addressed the waiver of presence of the

parties, the requirement that an

Immigration Judge enter stipulated

orders of deportation and exclusion

under certain circumstances, and an

Immigration Judge’s discretion to

conduct telephonic and video electronic

media hearings.

1. Section 3.25(a) Waiver of Presence of

the Parties

The Agency received one comment

objecting to the proposed rule’s

provision allowing the Immigration

Judge to waive the presence of an alien

who is a child where a parent or legal

guardian is present. The commenter

argued that the rule would provide

children with less due process

protection than it provides adults.

This rule is for the convenience of the

parties. For example, if parents and

their infant child are in deportation

proceedings, this rule allows the

Immigration Judge to waive the

presence of the infant. Such a waiver

allows parents to place the child in

childcare during the hearing. The

waiver allows the parents and the

Immigration Judge to concentrate on the

substantive issues. For pragmatic

reasons, the Agency has decided to

retain this rule.

2. Section 3.25(b) Stipulated Request for

Deportation or Exclusion Orders

Numerous commenters expressed due

process concerns with the proposed

rule’s provision requiring an

Immigration Judge to enter an order of

deportation or exclusion if, based on the

written record, the Judge determines

that a represented respondent/applicant

voluntarily entered into a stipulated

request for an order of deportation or

exclusion. Conversely, other

commenters expressed approval of the

requirement and suggested that the

Agency expand the requirement to

include motions for changes of venue

and some forms of relief. Commenters

also expressed concern that the rule

requiring that a respondent/applicant

make no application for relief unjustly

limits the options of the respondent/

applicant.

The rule has been modified to

respond to the commenters’ due process

concerns. The final rule does not require

an Immigration Judge to enter an order

of deportation or exclusion based on the

parties’ written stipulation. stead, the

rule explicitly recognizes a Judge’s

discretion to enter an order of

deportation or exclusion based on the

parties’ written stipulation. The

Immigration Judge’s discretion to enter

an order by written stipulation in the

absence of the parties is limited to cases

in which the applicant or respondent is

represented at the time of the

stipulation and where the stipulation is

signed on behalf of the government and

by both the applicant or respondent and

his or her attorney or other

representative qualified under part 292

of this chapter. At this juncture, the

Agency declines to modify the scope of

the stipulation procedure, and so the

final rule does not address venue and

has not changed with respect to

application for relief.

Commenters stated that the proposed

rule did not give sufficient emphasis to

the requirement that only represented

respondents/applicants may enter into

stipulation requests. In response, the

word ‘‘represented’’ has been inserted

before each reference to respondent/

applicant in the final version of

§ 3.25(b).

Commenters stated that the proposed

rule did not give sufficient emphasis to

the requirement that the respondent/

applicant fully understand the

ramifications of a stipulation. In

ascertaining the extent of

understanding, one commenter

suggested that the Immigration Judge

should focus specifically on the

respondent/applicant’s English language

skills. The words ‘‘voluntarily,
26352 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

knowingly and intelligently’’ have been

added to ensure maximum protection

for aliens entering into stipulations.

Because language skills are subsumed in

the voluntarily, knowingly and

intelligently formula, the Agency

considers it unnecessary for the rule to

specifically address language skills.

One commenter, although supporting

the rule’s concept, expressed a technical

concern with the elimination of

‘‘hearings’’ when the requirements for a

stipulated deportation or exclusion are

met. According to the comment, there is

a statutory mandate that Immigration

Judge conduct ‘‘hearings’’. In response

to this comment, the final rule now

states that the Immigration Judge may

‘‘conduct hearings in the absence of the

parties.’’

A few commenters stated, in essence,

that the requirement that the

respondent/applicant introduce written

statements as an exhibit to the record of

proceedings was superfluous. The

commenters suggested deletion of this

requirement. Because of the potential

value of a complete record, the Agency

rejects this suggestion.

One commenter suggested that the

rule should explicitly permit revocation

of stipulated deportations and

exclusions. Because the Code of Federal

Regulations already provides

mechanisms for motions to reopen,

motions to reconsider, and notices of

appeal, e.g., 8 CFR 103.5, 208.19,

242.21, 242.22, and 3.3, a revocation

provision would be redundant and

potentially confusing.

The rule implements the statutory

requirement of expeditious deportation

of criminal aliens under 8 U.S.C.

1252(i), 1252a(d), while protecting the

rights of the parties. The rule

contemplates employing stipulated

deportations to expedite departures of

aliens convicted of offenses rendering

them immediately deportable or

excludable. Stipulated deportations also

allow the prompt departure of

imprisoned criminal aliens who have no

apparent avenue of relief from

deportation or exclusion and who wish

to avoid immigration-related detention

after having completed their criminal

sentences. If used more widely by

litigants and criminal prosecutors, the

procedure could alleviate overcrowded

federal, state, and local detention

facilities and eliminate the need to

calendar such uncontested cases on

crowded Immigration Court dockets.

The procedure is not limited to cases

arising in the criminal context and can

be used in other appropriate settings.

The practice codified by the final rule

already exists in some jurisdictions. The

final rule promotes judicial efficiency in

uncontested cases and resolves the

commenters’ due process concerns.

3. Section 3.25(c) Telephonic or Video

Electronic Media Hearing

Commenters raised both statutory and

practical concerns with this section of

the proposed rule. The statutory

concerns revolved around the proper

construction of the phrase ‘‘before a

special inquiry officer’’ as used in 8

U.S.C. 1252(b). According to some

comments, the word ‘‘before’’ must be

construed to mean that an alien is

entitled to appear physically before an

Immigration Judge. Commenters made

no distinction between telephonic and

video electronic media hearings. These

comments relied on Purba v. INS, 884

F.2d 516, 517–18 (9th Cir. 1989)

(holding that ‘‘section 242a(b) [of the

Act] requires that the hearing be

conducted with the hearing participants

in the physical presence of the IJ

[Immigration Judge]’’ and that

‘‘telephonic hearings by an IJ, absent

consent of the parties, simply are not

authorized by the statute’’). The Ninth

Circuit decision in Purba informs the

issue of whether telephonic hearings are

appropriate. However, Purba disposes of

the issue in the Ninth Circuit only.

Notably, the Eleventh Circuit also has

addressed the issue of whether the

statutory language of the Act allows for

telephonic hearings at the Immigration

Judge’s discretion or whether the

statutory language requires parties’

consent. Bigby v. INS, 21 F.3d 1059

(11th Cir. 1994).

The Eleventh Circuit expressly cited

to and disagreed with the holding in

Purba, finding instead that an

Immigration Judge has the discretion to

hold a hearing by telephonic means and

that party consent is unnecessary, at

least where credibility determinations

are not at issue. Bigby, 21 F.3d at 1062–

64. See also U.S. v. McCalla, 821 F.

Supp. 363, 369 n. 11 (E.D.Pa. 1993)

(‘‘Assuming that the defendant in this

case did not consent to holding the

hearing by telephone, this is of no

moment * * * [the defendant] has

demonstrated no prejudice resulting

from the use of the telephone such that

he would have been entitled to relief

from deportation on appeal.’’)

Commenters relied exclusively on the

Ninth Circuit decision and, as of the

date of their comments, apparently were

unaware of the Eleventh Circuit’s recent

decision. Numerous commenters

conceded that the telephonic hearings

currently conducted are procedurally

effective and convenient, citing as

examples, detained aliens and attorneys

who practice some distance from the

Immigration Court. However,

commenters asserted that telephonic

and video electronic media hearings, as

contemplated by the proposed rule,

would result in deprivations of

respondents’ due process rights. The

commenters argued that, in some

instances, this rule would deprive

respondents of the opportunity to

present and inspect evidence and the

right to cross-examine adverse

witnesses. They also stated that

telephonic and video electronic media

hearings would impair the Immigration

Judge’s ability to assess credibility.

furthermore, commenters maintained

that telephonic and video electronic

media hearings would handicap the

communication between non-English

speaking respondents and their

interpreters and would handicap

respondents’ representation by counsel.

In addition, commenters noted that this

rule would lead to disparate treatment

in the various circuits. Given these

perceived harms, the commenters

suggested that the Agency either

withdraw the telephonic/video

electronic media hearing provision or

modify it to be consistent with Purba by

requiring party consent.

In response to the commenters’ due

process concerns, the Agency has

modified the rule’s telephonic hearing

provision. The final rule requires that

parties consent to telephonic procedures

which are full evidentiary hearings on

the merits. Consequently, the parties

will have an opportunity to elect an inperson hearing at a critical juncture.

The final rule, however, distinguishes

between telephonic and video electronic

media hearings. The final rule does not

require that parties consent to video

electronic media hearings of any kind.

Video electronic media hearings are

completely within the discretion of the

Immigration Judge. The sophistication

of modern video electronic media

coupled with the prudent use of

Immigration Judge discretion should be

sufficient to preserve the integrity of the

procedure and the due process rights of

the parties.

The final rule, furthermore, retains

the proposed rule’s provision

recognizing the Immigration judge’s

discretion to conduct hearings

telephonically and by video electionic

media when such proceedings are not

contested, full evidentiary merit

hearings. Judicial discretion will ensure

that telephonic and video electronic

media hearings will be conducted only

as appropriate.

Althought his rule probably will

result in disparate treatment among the

circuits, this situation is neither unusual

nor prohibited in our federal system.

The Immigration Judges in the
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26353

geographical confines of the Ninth

Circuit currently follow Purba and will

continue to follow the law of that

circuit.

Commenters also raised practical

concerns with telephonic and video

electronic media hearings. Given the

nature of immigration proceedings, they

correctly note that parties are often

unable to communicate proficiently in

the English language. These comments

posit that telephonic and video

electronic media hearings would further

impair communication. The caliber of

today’s technology, the requirement for

party consent in critical telephonic

merit hearings, the prudent use of

Immigration Judge discretion, and the

availability of procedural vehicles for

review of Immigration Judge decisions

sufficiently safeguard non-English

speakers from potential prejudice.

The final rule codifies some of the

current practices of Immigration Judges

holding telephonic hearings at their

discretion and extends these practices to

video electronic media hearings. The

final rule also codifies a limitation on

Immigration Judge discretion to conduct

certain telephonic hearings. The final

rule allows implementation of modern

technology in order to increase

procedural efficiency while protecting

parties’ due process rights. The rule

assists the Agency in carrying out the

country’s immigration policy in an

equitable and productive manner.

The final rule also makes minor

technical changes in paragraph 9a) to

conform with the in absentia provisions

of 8 U.S.C. 1252.

In accordance with 5 U.S.C. 605(b),

the Attorney General certifies that this

rule does not have a significant adverse

economic impact on a substantial

number of small entities. The Attorney

General has determined that this rule is

not a significant regulatory action under

Executive Order No. 12866, § 3(f), and

accordingly this rule has not been

reviewed by the Office of Management

and Budget. This rule has no Federalism

implications warranting the preparation

of a Federalism Assessment in

accordance with Executive Order No.

12612. The rule meets the applicable

standards provided in sections 2(a) and

2(b)(2) of Executive Order No. 12778.

List of Subjects in 8 CFR Part 3

Administrative practice and

procedure, Immigration and

Naturalization Service, Organization

and functions (government agencies).

Accordingly, 8 CFR part 3 is amended

as set forth below:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for part 3

continues to read as follows:

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

1252 note, 1252b, 1362; 28 U.S.C. 509, 510,

1746; Section 2, Reorganization Plan No. 2 of

1950, 3 CFR, 1949–1953 Comp., p. 1002.

2. Section 3.25 is revised to read as

follows:

§ 3.25 Waiver of presence of the parties.

(a) Good cause shown. The

Immigration Judge may, for good cause,

waive the presence of a respondent/

applicant at the 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. In addition, in absentia

hearings may be held pursuant to

sections 1252(b) and 1252b(c) of title 8,

United States Code with or without

representation.

(b) Stipulated request for order;

waiver of hearing. Notwithstanding any

other provision of this chapter, upon the

written request of the respondent/

applicant and upon concurrence of the

government, the Immigration Judge may

conduct hearings in the absence of the

parties and enter an order of deportation

or exclusion on the written record if the

Immigration Judge determines, upon a

review of the charging document,

stipulation document, and supporting

documents, if any, that a represented

respondent/applicant voluntarily,

knowingly, and intelligently entered

into a stipulated request for an order of

deportation or exclusion. The

stipulation document 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

excludability as charged;

(3) A statement that the respondent/

applicant makes no application for relief

from deportation or exclusion,

including, but not limited to, voluntary

departure, asylum, adjustment of status,

registry, de novo review of a termination

of conditional resident status, de novo

review of a denial or revocation of

temporary protected status, relief under

8 U.S.C. 1182(c), suspension of

deportation, or any other possible relief

under the Act;

(4) A designation of a country for

deportation under 8 U.S.C. 1253(a);

(5) A concession to the introduction

of the written statements of the

respondent/applicant as an exhibit to

the record or proceedings;

(6) A statement that the attorney/

representative has explained the

consequences of the stipulated request

to the respondent/applicant and that the

respondent/applicant enters the request

voluntarily, knowingly and

intelligently;

(7) A statement that the respondent/

applicant will accept a written order for

his or her deportation or exclusion as a

final disposition of the proceedings; and

(8) A waiver of appeal of the written

order of deportation or exclusion.

The stipulated request and required

waivers shall be signed on behalf of the

government and by both the

respondent/applicant and his or her

attorney or other representative

qualified under part 292 of this chapter.

The attorney or other representative

shall file a Notice of Appearance in

accordance with § 3.16(b) of this part.

(c) Telephonic or video electronic

media hearing. An Immigration Judge

may conduct hearings via video

electronic media or by telephonic media

in any proceeding under 8 U.S.C. 1226,

1252, or 1256, except that contested full

evidentiary hearings on the merits may

be conducted by telephonic media only

with the consent of the alien.

Dated: May 8, 1995.

Janet Reno,

Attorney General.

[FR Doc. 95–12080 Filed 5–16–95; 8:45 am]

BILLING CODE 4410–01–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 85

[Docket No. 94–064–2]

Official Pseudorabies Tests

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

pseudorabies regulations by adding the

glycoprotein I enzyme-linked

immunosorbent assay approved

differential test to the list of official

pseudorabies tests. This rule will allow,

under certain conditions, the

glycoprotein I enzyme-linked

immunosorbent assay approved

differential test to be used as an official

pseudorabies test to qualify certain

pseudorabies vaccinated swine for

interstate movement to destinations

other than slaughter or a quarantined

herd or quarantined feedlot. Adding the

glycoprotein I enzyme-linked

immunosorbent assay approved

differential test to the list of official