[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Rules and Regulations]
[Pages 26351-26353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12080]



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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.

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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 plea-negotiated 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 Sec. 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 Sec. 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 Sec. 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, [[Page 26352]] 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 in-person 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 
[[Page 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, Sec. 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:


Sec. 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 Sec. 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]
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