BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service and
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.]
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 [Insert date 120
days from date of publication in the FEDERAL REGISTER].
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 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 distance-based 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.
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 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
port-of-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 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 self-executing,
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 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.
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 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-of-
entry 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 cross-
designated 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 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 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 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 Cut-Off 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 cut-off 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 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 is 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 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 non-criminal
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.
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 an 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 prohibit
the Service from appealing a grant of voluntary departure on the ground that the
alien was not 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 immig