This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

16386

Vol. 60, No. 61

Thursday, March 30, 1995

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 242

[INS No. 1672–94; AG Order No. 1957–95]

RIN 1115–AD76

Administrative Deportation Procedures

for Aliens Convicted of Aggravated

Felonies Who Are Not Lawful

Permanent Residents

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to

establish alternative administrative

deportation procedures for aliens not

admitted for permanent residence and

not eligible for any relief from

deportation who have been convicted of

aggravated felonies. This regulation is

necessary to implement a recently

enacted statutory measure eliminating

the requirement for a hearing before an

immigration judge and limiting judicial

review. While incorporation procedural

safeguards, it will expedite the

deportation process in certain cases

involving serious criminal offenses.

DATES: Written comments must be

submitted on or before May 30, 1995.

ADDRESSES: Please submit written

comments, in triplicate, to the Policy

Directives and Instructions Branch,

Immigration and Naturalization Service,

Room 5307, 425 I Street NW.,

Washington, DC 20536. Attention:

Public Comment Clerk. To ensure

proper handling, please reference INS

No. 1672–94 on your correspondence.

Comments are available for public

inspection at this location by calling

(202) 514–3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Leonard C. Loveless, Detention and

Deportation Officer, Immigration and

Naturalization Service, 425 I Street,

NW., Washington, D.C. 20536,

Telephone (202) 514–2865.

SUPPLEMENTARY INFORMATION: This

proposed rule establishes an expedited

administrative deportation process.

Section 130004 of the Violent Crime

Control and Law Enforcement Act of

1994, Public Law 103–322, amended

section 242A of the Immigration and

Nationality Act (Act), effective

September 14, 1994, to authorize such a

process. Amended section 242A(b) of

the Act authorizes the Attorney General

to implement a deportation procedure

that eliminates hearings before

immigration judges for certain aliens

convicted of serious criminal offenses.

Limited judicial review is authorized

upon the filing of a petition for review

within 30 days after the administrative

deportation order is issued. Also, the

Immigration and Nationality Technical

Corrections Act of 1994, Public Law

103–416, enacted October 25, 1994,

made minor technical changes to the

statutory administrative deportation

procedures.

Before enactment of Public Law 103–

322, except in the case of certain Visa

Waiver Pilot Program and crewman

violators, deportation proceedings were

required to be conducted before an

immigration judge pursuant to section

242(b) of the Act. By enactment of

Public Law 103–322, Congress provided

for a more streamlined deportation

process for an alien who is convicted of

an aggravated felony and who is not a

lawful permanent resident. The

procedure is available only if the alien

is not eligible for any form of relief from

deportation under the Act. Section

242A(b)(4) requires the Attorney

General to prescribe regulations to

conduct proceedings under the section.

This proposed rule authorizes a district

director or chief patrol agent to issue a

final administrative order of deportation

in accordance with section 242A(b) of

the Act.

The proposed rule would require the

Service to perform certain functions to

afford the alien procedural protection

during the administrative process:

a. The alien would be given

reasonable notice of the charge of

deportability. The notice would set forth

allegations of fact and conclusions of

law establishing that the alien is not a

lawful permanent resident, is deportable

under section 241(a)(2)(A)(iii) of the Act

(relating to conviction for an aggravated

felony), and is ineligible for relief from

deportation.

b. The charge of deportability would

be supported by clear, convincing, and

unequivocal evidence, and a record

would be maintained for judicial

review.

c. The alien would have an

opportunity to be represented by

counsel in the deportation proceedings

at no expense to the government.

d. The alien would have a reasonable

opportunity to inspect the evidence and

rebut the allegations and/or charge

within ten days, with an extension

granted by the district director or chief

patrol agent for good cause shown.

e. The person who renders the final

decision would not be the same person

who issues the notice of the Service’s

intention to issue a final order (i.e. the

charge).

f. The alien would be able to seek

review of the final order by filing a

petition for judicial review within 30

days.

During the administrative deportation

process, the district direct or chief

patrol agent would determine the alien’s

custody status in accordance with

applicable provisions of section 242 of

the Act. The alien would be able to seek

review of the custody determination in

habeas corpus proceedings.

Section 242(b) of the Act does not

apply when the alien is eligible for relief

from deportation under the Act. If the

Service finds that the alien’s response

presents a prima facie claim of statutory

eligibility for relief, the rule proposes

that the district director or chief patrol

agent (or their designee) shall terminate

proceedings under section 242A(b) of

the Act, and shall, where appropriate,

issue an order to show cause for the

purpose of initiating an immigration

judge proceeding under section 242(b)

of the Act.

Limited judicial review of the final

administrative deportation order may be

obtained by filing a petition for review

in accordance with section 106 of the

Act. The review, however, is statutorily

limited to: (1) Whether the person is in

fact the alien described in the order; (2)

whether the person was not lawfully

admitted for permanent residence at the

time at which deportation proceedings

commenced; (3) whether the person is

not eligible for any relief from

deportation; (4) whether the alien has

been convicted of an aggravated felony

and such conviction has become final;

and (5) whether the alien was afforded
Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules 16387

the procedures required by section

242A(b)(4) of the Act.

Sections 242(a) (2)(A) and (2)(B) of the

at require the Service to detain, until the

order is executed, any aggravated felon

who has not been ‘‘lawfully admitted.’’

An alien who has been lawfully

admitted may be released from custody

if the alien demonstrates to the

satisfaction of the Attorney General that

the alien is not a threat to the

community and is likely to appear for

any scheduled proceedings. An

immigration judge is not authorized to

consider (or redetermine) custody issues

under the rule. The alien may seek

review of the bond determination by

filing a writ of habeas corpus with the

district court.

Regulatory Flexibility Act

The Attorney General, in accordance

with 5 U.S.C. 605(b), certifies that this

rule does not have a significant adverse

economic impact on a substantial

number of small entities because the

affected parties are individual aliens

who have been ordered deported from

the United States.

Executive Order No. 12866

This rule is not considered to be a

‘‘significant regulatory action’’ within

the meaning of section 3(f) of E.O.

12866, Regulatory Planning and Review,

and the Office of Management and

Budget has waived its review process

under section 6(a)(3)(A).

Executive Order No. 12612

This rule is not considered to have

Federalism implications warranting the

preparation of a Federalism Assessment

in accordance with section 6 of E.O.

12612.

Executive Order 12606

The Attorney General certifies that

she has assessed this rule in light of the

criteria in E.O. 12606 and has

determined that this rule will not have

an impact on family formation,

maintenance, or general well-being.

List of Subjects in 8 CFR Part 242

Administrative practice and

procedure, Aliens, Deportation.

Accordingly, part 242 of chapter I of

title 8 of the Code of Federal

Regulations is proposed to be amended

as follows:

PART 242—PROCEEDINGS TO

DETERMINE DEPORTABILITY OF

ALIENS IN THE UNITED STATES:

APPREHENSION, CUSTODY,

HEARING, AND APPEAL

1. The authority citation for part 242

is revised to read as follows:

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

1251, 1252, 1252 note, 1252a, 1252b, 1254,

1362; 8 CFR part 2.

2. In part 242, a new § 242.25 is added

to read as follows:

§ 242.25 Proceedings under section

242A(b) of the Act.

(a) Definitions. As used in this

section—

Deciding Service officer means a

district director, chief patrol agent, or

his or her designated representative who

is not the same person as the issuing

Service officer.

Issuing Service officer means any

Service officer listed in § 242.1(a) as

authorized to issue orders to show

cause.

Prima facie claim means a claim that,

on its face and consistent with the

evidence in the record of proceeding,

demonstrates present statutory

eligibility for a specific form of relief

from deportation under the Immigration

and Nationality Act (Act).

(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 the alien a notice of intent to issue

a final administrative deportation order

(Notice of Intent, Form I–851) if he or

she is satisfied that there is evidence

sufficient to support a finding that the

individual:

(i) Is an alien;

(ii) Has not been lawfully admitted for

permanent residence;

(iii) Has been convicted (as

demonstrated by one or more of the

sources listed in § 3.41 of this chapter)

of an aggravated felony and such

conviction has become final;

(iv) Is deportable under section

241(a)(2)(A)(iii) of the Act; and

(v) Does not appear statutorily eligible

for any relief from deportation under the

Act.

(2) Notice. Deportation proceedings

under section 242A(b) of the Act shall

commence upon personal service of the

Notice of Intent upon the alien, as

prescribed by § 103.5a(a)(2), 103.5a(b),

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 final administrative order of

deportation (Final Administrative

Deportation Order, Form I–851A)

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:

(i) Has the privilege of being

represented by counsel of the alien’s

choosing, at no expense to the

government, as long as counsel is

authorized to practice in deportation

proceedings;

(ii) May inspect the evidence

supporting the Notice of Intent; and

(iii) May rebut the charges within ten

calendar days after service of such

notice (or thirteen (13) days if service of

the Notice was by mail). The Notice of

Intent shall also advise the alien that he

or she may designate in writing, within

ten calendar days of service of the

Notice of Intent (or thirteen calendar

days if service is by mail), the country

to which he or she chooses to be

deported in accordance with section 243

of the Act, in the event that a Final

Administrative Deportation Order is

issued, and that the Service will honor

such designation only to the extent

permitted under the terms, limitations,

and conditions of section 243 of the Act.

(c) Alien’s response. (1) Time for

response. The alien will have ten

calendar days from service of the Notice

of Intent, or 13 calendar days if service

is by mail,

(1) To designate his or her choice of

country for deportation and

(ii) To submit a written response

rebutting the allegations and/or charge

and/or requesting the opportunity to

review the government’s evidence. The

alien should send his or her designation

of country for deportation, and his or

her written response to the charge, to

the deciding Service officer at the

address provided in the Notice of Intent.

If the final date for filing falls on a

Saturday, Sunday, or legal holiday, the

time shall be extended to the next

business day. The time for response may

be extended by the deciding Service

officer for good cause shown in a

written request for extension received

within the time to submit a written

response. The request must explain

specifically why an extension is

necessary. A request for extension of

time for response will not automatically

toll the prescribed period (e.g., ten days)

for that response. The alien will be

permitted to file a response outside the

prescribed period only if the deciding

Service officer permits it. The alien

may, in writing, choose to accept

immediate issuance of a Final

Administrative Deportation Order.

(2) Nature of response; request to

review evidence. The alien’s written

response must indicate which finding(s)

are being challenged and must be

accompanied by affidavit(s),

documentary information, or other

specific evidence supporting the

challenge. if the written response
16388 Federal Register / Vol. 60, No. 61 / Thursday, March 30, 1995 / Proposed Rules

requests the opportunity to review the

government’s evidence, the alien will be

served with a copy of the evidence in

the record of proceeding relied on by

the government to support the

allegations and/or charge. The alien

may, within ten days following service

of the government’s evidence (thirteen

days if service is by mail), furnish a

final response in accordance with

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

the alien’s initial written response or the

alien’s final response must be

accompanied by an affidavit and a

completed and signed application

designed for any relief sought.

(d) Determination by deciding Service

officer. (1) No response; acceptance of

Final Administrative Deportation Order.

If

(i) A timely response is not received

by the deciding Service officer, or

(ii) The alien accepts immediate

issuance of the Final Administrative

Deportation Order, then the deciding

Service officer shall issue and cause to

be served upon the alien a Final

Administrative Deportation Order. The

determination of deportability must be

supported by clear, convincing, and

unequivocal evidence contained in the

record of proceeding.

(2) Response submitted. (i)

Insufficient rebuttal; no prima facie

claim or genuine issue of material fact.

If the deciding Service officer finds that

the response fails to rebut the

allegations and charge in the Notice of

Intent, fails to present a prima facie

claim of relief from deportation under

the Act, and fails to raise a genuine

issue of material fact, he or she shall

issue and cause to be served upon the

alien a Final Administrative Deportation

Order. The determination of

deportability must be supported by

clear, convincing, and unequivocal

evidence contained in the record of

proceeding.

(ii) Additional evidence required. If

the deciding Service officer finds that

the alien’s response raises a genuine

issue of material fact regarding the

preliminary findings, he or she

(A) May request additional

information from any source, including

the alien, as he or she may deem

appropriate, or

(B) Issue an order to show cause to

initiate deportation proceedings under

section 242(b) of the Act. If the deciding

Service officer considers additional

information from a source other than the

alien, that evidence shall be provided to

the alien, and the alien may, within ten

days of service thereof (thirteen days if

service is by mail) furnish a response to

the deciding Service officer. If, after

considering all additional information,

the deciding Service officer finds that

deportation is supported by the

requisite proof, he or she shall issue and

cause to be served upon the alien a

Final Administrative Deportation Order.

(iii) Secretary eligibility for relief;

conversion to proceedings under section

242(b) of the Act. If the deciding Service

officer finds that the alien has presented

a prima facie claim of present statutory

eligibility for a specific form of relief

from deportation, the deciding Service

officer shall terminate the expedited

proceedings under section 242A(b) of

the Act, and shall, where appropriate,

issue an order to show cause for the

purpose of initiating an immigration

judge proceeding under section 242(b)

of the Act.

(3) Termination of proceedings by

deciding Service officer. Only the

deciding Service officer may terminate

proceedings under section 242A(b) of

the Act, in the exercise of his or her

discretion.

(e) Proceedings commenced under

section 242(b) of the Act. In any

proceeding commenced under section

242(b) of the Act, if it appears that the

respondent’s case falls under the

provisions of section 242A(b) 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 242A(b) of

the Act. However, in the absence of any

such request, the immigration judge

shall complete the pending proceeding

commenced under section 242(b) of the

Act.

(f) Executing final order of deciding

Service officer—

(1) Thirty (30) calendar days. Upon

the issuance of a Final Administrative

Deportation Order, the Service shall

issue a warrant of deportation issued in

accordance with 8 CFR part 243.2; such

warrant shall be executed no sooner

than 30 calendar days after the date the

Final Administrative Deportation Order

is issued, unless the 30-day period is

waived in writing by the alien. The 72-

hour provisions of § 243.3(b) of this

chapter shall not apply.

(2) Place to which deported. The

deciding Service officer shall designate

the country of deportation, in the

manner prescribed by section 243(a) 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 deportation, the alien may be

arrested and taken into custody under

the authority of a warrant of arrest

issued by an officer listed in

§ 242.2(c)(1) of this chapter. Pursuant to

section 242(a)(2)(A) of the Act, pending

proceedings under section 242A(b) of

the Act, the deciding Service officer

shall not release an alien who has not

been lawfully admitted. Pursuant to

section 242(a)(2)(B) of the Act, the

deciding Service officer may release an

alien who has been lawfully admitted

based upon factors considered under

§ 242.2(h) of this chapter. The decision

of the deciding Service officer

concerning custody or bond is not

administratively appealable during

proceedings initiated under section

242A(b) of the Act and this section.

(h) Record of proceeding. A record of

proceeding shall be maintained by the

Service for judicial review of the Final

Administrative Deportation 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 Deportation

Order; the alien’s response, if any; all

evidence in support of the charges; and

any admissible evidence, briefs, or

documents submitted by either party

respecting deportability or relief from

deportation.

Dated: March 16, 1995.

Janet Reno,

Attorney General.

[FR Doc. 95–7754 Filed 3–29–95; 8:45 am]

BILLING CODE 4410–01–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 94–NM–177–AD]

Airworthiness Directives; Boeing

Model 727 and Model 737 Series

Airplanes Equipped With J.C. Carter

Company Fuel Valve Actuators

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Supplemental notice of

proposed rulemaking; reopening of

comment period.

SUMMARY: This document revises an

earlier proposed airworthiness directive

(AD), applicable to certain Boeing

Model 727 and Model 737 series

airplanes, that would have required

replacement of the actuator of the

engine fuel shutoff valve and the fuel

system crossfeed valve with an

improved actuator. That proposal was

prompted by reports indicating that,

during ground acceptance tests on

Model 737 series airplanes, the actuator

clutch on the engine shutoff and