Administrative Deportation Procedures for Aliens Convicted of Aggravated Felonies Who Are Not Lawful Permanent Residents

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 242 and 299

[INS No. 1672-94; AG Order No. 1984-95]

RIN 1115-AD76

Administrative Deportation Procedures for Aliens Convicted of

Aggravated Felonies Who Are Not Lawful Permanent Residents

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule establishes administrative deportation

procedures for aliens not admitted for permanent residence and not

statutorily eligible for any relief from deportation who have been

convicted of aggravated felonies. This regulation is being promulgated

to implement the statutory measure eliminating the requirement for a

hearing before an Immigration Judge and limiting judicial review. While

incorporating procedural safeguards, it will expedite the deportation

process in certain cases involving aliens who have committed serious

criminal offenses.

EFFECTIVE DATE: This rule is effective September 25, 1995.

FOR FURTHER INFORMATION CONTACT: Leonard C. Loveless, Detention and

Deportation Officer, Immigration and Naturalization Service, 425

Street, NW., Washington, D.C. 20536, Telephone (202) 514-2865.

SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service

(``the Service'') published a proposed rule on March 30, 1995, at 60 FR

16386. This final rule, which incorporates changes based on the

comments received on the proposed rule, establishes an expedited

administrative deportation procedure for aliens who have committed

aggravated felonies and who are not lawful permanent residents.

Congress authorized such a procedure in section 130004 of the Violent

Crime Control and Law Enforcement Act of 1994, Public Law 103-322,

which amended section 242A of the Immigration and Nationality Act

(``the Act''), effective September 14, 1994. (The Immigration and

Nationality Technical Corrections Act of 1994, Public Law 103-416,

enacted October 25, 1994, made minor technical changes to section

242A.) Section 242A(b)(4) of the Act authorizes the Attorney General to

implement an expedited deportation procedure that eliminates hearings

before Immigration Judges for certain aliens convicted of serious

criminal

[[Page 43955]]

offenses. Section 242A(b)(3) provides that aliens subject to this

administrative deportation procedure shall be entitled to limited

judicial review upon filing of a petition for review within 30 days

after a Final Administrative Deportation Order is issued.

Before enactment of Public Law 103-322, all deportation and

exclusion proceedings were required to be conducted before an

Immigration Judge pursuant to section 242(b) of the Act (except in the

case of certain security-related cases, Visa Waiver nonimmigrants,

stowaways, and crewman violators). By enactment of Public Law 103-322,

Congress authorized a more streamlined deportation process for aliens

who have been convicted of aggravated felonies and who are not lawful

permanent residents. Section 242A(b)(4) requires the Attorney General

to prescribe regulations for such expedited proceedings. This final

rule authorizes district director or chief patrol agent to issue a

Final Administrative Order of Deportation in accordance with section

242A(b) of the Act. Under section 242A(b)(2)(B), the administrative

procedure can be used only if an alien does not satisfy the statutory

conditions that would make the alien eligible for possible relief from

deportation under the provisions of the Act.

The final rule requires the Service to afford aliens certain

procedural protections during the administrative deportation process:

a. An alien will be given reasonable notice of the charge of

deportability on Form I-851, Notice of Intent to Issue a Final

Administrative Deportation Order. The Notice must set forth allegations

of fact and conclusions of law establishing that the alien is not a

lawful permanent resident, is deportable under section 241

(a)(2)(A)(iii) of the Act (relating to conviction for an aggravated

felony), and is not statutorily eligible for relief from deportation.

b. The charge of deportability must be supported by clear,

convincing, and unequivocal evidence.

c. An alien will be afforded the opportunity to be represented by

counsel in the deportation proceedings at no expense to the Government

and will be provided a list of available free legal services.

d. An alien will be afforded a reasonable opportunity to inspect

the evidence supporting the charge, and to rebut the charge within 10

days, with an extension granted by the district director or chief

patrol agent for good cause shown

e. The person who renders the final decision will not be the same

person who issues the charge.

f. A record of the proceedings must be maintained for judicial

review.

g. An alien is able to seek review of the final order by filing a

petition for judicial review within 30 days.

The Service cannot take action to commence the administrative

deportation proceedings unless there is evidence establishing the

statutory preconditions for deportation. If an alien appears to be

statutorily eligible for relief from deportation, the Service will not

commence proceedings under section 242A(b) of the Act.

An alien may obtain judicial review of a Final Administrative

Deportation Order by filing a petition for review in accordance with

section 106 of the Act. Such review, however, is limited under section

106(d) to: (1) Whether the person is in fact the alien described in the

order; (2) whether the person was not lawfully admitted for permanent

residence at the time at which deportation proceedings commenced; (3)

whether the person is not eligible for any relief from deportation; (4)

whether the alien has been convicted of an aggravated felony and such

conviction has become final; and (5) whether the alien was afforded the

procedures required by section 242A(b)(4) of the Act.

Section 242(a)(2) of the Act requires the Service to take into

custody any alien who has been convicted of an aggravated felony, upon

the alien's release from incarceration. An alien who has been lawfully

admitted may be released from the Service's custody if the alien

demonstrates to the satisfaction of the Attorney General that the alien

is not a threat to the community and is likely to appear for any

scheduled proceedings. The Attorney General may not release from

custody any alien who has not been lawfully admitted. An alien can seek

review of a custody determination by filing a writ of habeas corpus

with the district court.

The final rule differs from the proposed rule in the following

respects: The rule amends 8 CFR 242.25(b)(2) by adding subparagraph

(iii) to require the Service to provide a list of free legal-aid

services to an alien in conjunction with the Notice of Intent. The

final rule also amends 8 CFR 242.25(b)(2) by adding subparagraph (iv)

to require the Service either to provide the alien a written

translation of the Notice of Intent or to explain the contents of the

Notice of Intent in the alien's native language or in a language the

alien understands. The final rule also amends 8 CFR 299.1 by adding the

entries for Forms I-851 (Notice of Intent to Issue a Final

Administrative Deportation Order) and I-851A (Final Administrative

Deportation Order) to the listing of forms, to ensure that Service

personnel and the public are aware of these new forms and their proper

edition dates. The rule also makes non-substantive changes to the

provisions of the proposed rule for clarification.

In response to the proposed rule, the Service received several

comment letters and memoranda of law from various independent

attorneys, law enforcement officials, and legal defense organizations.

The following sections summarize the comments and explain the revisions

adopted.

The comments principally focused upon the following topics: aliens'

entitlement to due process; the absence of an ``in person'' hearing in

the administrative deportation procedure; the competence of the

deciding Service officer; the complexity of determining whether an

alien has been convicted of an ``aggravated felony'' or is entitled to

relief from deportation; the form and content of the notice provided to

the alien; the deadlines imposed upon the alien for responding to the

Notice of Intent; aliens' opportunity to obtain counsel; aliens'

opportunity to rebut charges; the impartiality of the deciding Service

officer; the risk of deportation of United States citizens or lawful

permanent residents; the lack of review of the deciding Service

officer's decision by an Immigration Judge or by the Service's General

Counsel; and the termination without prejudice of Immigration Judge

proceedings when it appears that an alien is subject to administrative

proceedings under section 242A(b) of the Act.

1. Procedural Due Process in the Absence of an In-Person Hearing

Comments: Several commenters contended that the proposed rule

violated constitutional requirements of procedural due process. In

particular, the commenters argued that the process is constitutionally

inadequate because of the failure to provide an in-person hearing

before the deciding Service officer.

Response and Disposition: Congress decided to permit expedited

deportation procedures for a certain class of aliens with respect to

whom the decision to deport typically is straightforward and not

subject to discretionary or equitable considerations. Because

deportation of such aliens involves no discretionary factors, and

because there rarely will be any factual disputes bearing upon

deportability that cannot be resolved

[[Page 43956]]

through documentary evidence, a testimonial hearing for such aliens

rarely if ever will serve a useful purpose. Accordingly, Congress

authorized the ``[e]limination of [a]dministrative [h]earing[s]'' for

such aliens. Public Law 103-322, Section 130004(a), 108 Stat. 2026. The

Service is merely implementing this congressional decision. Both the

statute and the rule provide all the process that is due.

It is well established that the Fifth Amendment entitles aliens to

due process of law in deportation proceedings. See Reno v. Flores, 113

S. Ct. 1439, 1449 (1993). As the Supreme Court explained in Landon v.

Plasencia, 459 U.S. 21, 34 (1982), whether deportation procedures

satisfy due process depends upon three factors: (i) The interest at

stake for the alien; (ii) the risk of an erroneous deprivation of the

interest through the procedures used and the probable value of

additional or different procedural safeguards; and (iii) the interest

of the government in using the given procedures rather than additional

or different procedures. As these three factors suggest, the

constitutional sufficiency of procedures provided in any particular

situation is dependent on context; it will vary with the particular

circumstances, and what is sufficient for one type of deportation

determination may not be sufficient for another. Landon, 459 U.S. at

34-35. In the context of deportation of aliens who are aggravated

felons and who are not lawful permanent residents, consideration of the

three factors compels the conclusion that the procedures provided in

this rule satisfy due process.

With respect to the first factor, the Service recognizes that the

interest at stake for the alien--remaining in the United States--can be

substantial. An alien stands to lose the right ``to stay and live and

work in this land of freedom,'' Landon, 459 U.S. at 34, and may lose

the right to rejoin his or her immediate family, id. However, the

aliens covered by this rule have somewhat lesser cognizable interests

than aliens who are either permanent lawful residents, or who are not

aggravated felons, or both. The aliens in question, because they will

either have been admitted on a temporary basis or will have entered the

country unlawfully, will not have ``develop[ed] * * * ties'' to the

United States, see Landon, 459 U.S. at 32, equivalent to those enjoyed

by permanent resident aliens. Moreover, this discrete class of aliens

has demonstrated a disregard for the laws of the United States, as

evidenced by their aggravated felony convictions. Those aliens who have

been incarcerated will already have had their ties to this country

diminished as a result; and even aliens who originally had been

lawfully admitted should have less of an expectation to those ties

because, by virtue of their commission of an aggravated felony, they

will have failed to fulfill the conditions under which they gained

entry and under which they were entitled to developed such ties.

As to the third factor in the due process calculation, the

government's interest in ensuring expedited deportation of this class

of aliens is substantial. To begin with, it ``weighs heavily in the

balance'' that control of immigration matters ``is a sovereign

prerogative.'' Landon, 459 U.S. at 34. In addition, the government also

has a ``weighty'' interest ``in efficient administration of the

immigration laws.'' Id. Considerable weight must be given to ``the

administrative burden and other societal costs that would be associated

with requiring * * * an evidentiary hearing upon demand in all cases.''

Mathews v. Eldridge, 424 U.S. 319, 347 (1976).

With regard to ``the administrative burden,'' the interest of the

government and the public ``in conserving scarce fiscal and

administrative resources'' is critical. Mathews, 424 U.S. at 348. The

administrative process encouraged by Congress and established by this

rule addresses Congress' concern that aliens who are serious criminal

offenders have not heretofore been deported swiftly. Presently, without

the expedited proceedings provided by this rule, many of these aliens,

particularly those who serve short sentences for their convictions,

remain in the custody of the Service for prolonged periods. Congress

recognized that the present hearing procedure, with its ``repeated

appeals,'' ``can consume several years.'' 139 Cong. Rec. E749 (Mar. 24,

1993) (statement of Rep. McCollum). The cost of incarcerating these

aliens during that period is substantial, and Congress authorized the

expedited deportation procedures in large part to ameliorate that cost.

Id. See also 140 Cong. Rec. S3068 (Mar. 16, 1994) (statement of Sen.

Roth). The expedited procedure also serves to address ``other societal

costs.'' Mathews, 424 U.S. at 347. Because aliens presently can invoke

the more formal procedures, their custody continues for an extended

period. This exacerbates the ``problem of limited detention capacity''

that the Service faces, 139 Cong. Rec. E749 (Mar. 24, 1993) (statement

of Rep. McCollum), and permits alien felons extended opportunity to

commit further crime in this country. See 140 Cong. Rec. S3068 (Mar.

16, 1994) (statement of Sen. Roth).

Finally, with respect to the second due process factor, there is

little risk that the administrative procedures established by this

rule--in particular, the lack of an in-person hearing--will result in

an erroneous deprivation of aliens' interests, and the probable value

of additional or different procedural safeguards is minimal, at best.

It is worth noting, as an initial matter, that a number of aliens

who are aggravated felons and who are not lawful permanent residents

may choose not to contest deportation, since such deportation is based

on objective, nondiscretionary criteria for aliens who fall within the

class covered by section 242A of the Act.

Some aliens will, however, challenge deportation under section 242A

of the Act; and due process requires that in any deportation

proceeding, an alien must be entitled to notice of the nature of the

charge and ``a fair opportunity to be heard'' on the charge. Kwong Hai

Chew v. Colding, 344 U.S. 590, 597-98 (1953). As in other contexts,

``[t]he fundamental requirement of due process'' in a deportation

proceeding ``is the opportunity to be heard `at a meaningful time and

in a meaningful manner.' '' Mathews, 424 U.S. at 333 (citation

omitted). See, e.g., Rafeedie v. INS, 880 F.2d 506, 524 (D.C. Cir.

1989). An alien must, therefore, be apprised of clearly defined

charges, have a fair opportunity to present evidence in his or her

favor, and have the right to inspect the evidence on which the matter

is to be decided. See, e.g., Kaczmarczyk v. INS, 933 F.2d 588, 595-96

(7th Cir.), cert. denied, 502 U.S. 981 (1991). Due process in the

deportation context does not, however, require the same procedural

protections as would be provided in a criminal trial, see Dor v.

District Director, 891 F.2d 997, 1003 (2d Cir. 1989), nor does it

automatically dictate and opportunity for an alien to be heard upon a

regular, set occasion, and according to the forms of judicial

procedure; instead, due process merely requires that an alien be given

an opportunity to be heard ``that will secure the prompt, vigorous

action contemplated by Congress, and at the same time be appropriate to

the nature of the case.'' Yamataya v. Fisher, 189 U.S. 86, 101 (1903).

An alien's due process rights to be heard and to defend are

protected by this rule. An alien will have been questioned by an

immigration officer, and will be given reasonable notice of the

charges, the right to counsel, and a reasonable opportunity to inspect

the evidence and rebut the charges. An

[[Page 43957]]

alien can submit whatever evidence he or she wishes to rebut the

charges, and the deportation decision will be made by an immigration

official other than the official who issues the charging document. The

burden of proof is upon the Service to establish deportability by

clear, convincing, and unequivocal evidence. The decision is subject to

judicial review by the court of appeals on a petition for review.

The fact that an in-person hearing before the deciding Service

officer typically will be unavailable under the administrative

proceedings does not automatically result in a denial of due process.

To begin with, in the usual case the alien will already have had a

face-to-face interview, when the Service takes into custody or

otherwise first encounters the alien. During such an interview, the

investigative officer may take a sworn statement or affidavit from the

alien and then complete Form I-213, Record of Deportable Alien. See 8

U.S.C. 1357(b); 8 CFR 287.5(a). The results of this interview typically

will form a basis for both the initiation of administrative deportation

proceedings and the charge of deportability; thus, the alien has an

opportunity at that initial interview to rebut the facts upon which

administrative deportation would be predicated. Little, if anything,

would be gained by requiring another interview before the deciding

Service officer. And, since many aliens in administrative deportation

proceedings will be detained by other law enforcement agencies, a

requirement of another ``in-person'' hearing would result in further

delays by requiring Service officers to travel to remote locations to

repeat the interview with each alien.

Even more significantly, in a deportation proceeding under this

rule the risk of making an erroneous decision will be minimal, and the

value of an in-person hearing would be speculative at best. The only

issues to be decided in such proceedings are ``relatively

straightforward matters,'' Califano v. Yamasaki, 442 U.S. 682, 696

(1979), namely: alienage, lawful permanent resident status, conviction

of an aggravated felony, and statutory eligibility for relief. The

Service can determine alienage, lawful permanent resident status, and

eligibility for relief based solely upon documentary evidence, such as

information contained in the alien registration file and computer

databases, and can supplement that evidence with the statement of the

alien at the initial interview. The Service can determine whether the

alien has been convicted of an aggravated felony based upon the record

of conviction. Most importantly, unlike many determinations that can

arise in other types of deportation proceedings, these determinations

must be made by the Service without consideration of any equities or

discretionary factors. Accordingly, there are unlikely to be any

``issues of witness credibility and veracity,'' Mathews, 424 U.S. at

343-44, that might justify an in-person, testimonial hearing.

The Supreme Court has held that due process does not require an in-

person, testimonial hearing in front of the deciding official where the

decision in question ``will turn, in most cases, upon `routine,

standard, and unbiased' '' documentary evidence. Mathews, 424 U.S. at

344 (citation omitted). Where the facts on which the ultimate decision

are to be based are ``sharply focused and easily documented,'' id. at

343, as in the case of aliens who have committed aggravated felonies

and who are not permanent resident aliens, more formal testimonial

hearings are not constitutionally required. The facts on which

deportation will depend for these aliens are ``relatively

straightforward matters,'' Califano, 442 U.S. at 696, and are

``typically more amenable to written than to oral presentation,''

Mathews, 424 U.S. at 345. See also id. at 344 n.28.

Several commenters suggested that there may be certain cases in

which testimony will be necessary to determine such issues as alienage

or possible statutory eligibility for relief from deportation. Because

of the nature of these determinations, the Service believes that the

cases will be few and far between in which such determinations cannot

be made on the basis of documentary evidence. But even if there are

such isolated cases, that would not mean that the rule itself is

unconstitutional.

To begin with, although the regulation does not require an in-

person hearing, the deciding Service officer can request further

evidence after the alien's initial submission, if that officer

determines that such evidence will aid in the decision. Under 8 CFR

242.25(d)(2)(ii), if the deciding Service officer finds that the

alien's written response raises a genuine issue of material fact

regarding the preliminary findings, the officer may request additional

evidence, as he or she may deem appropriate. Thus, if any testimony is

required, it can and should be heard.

More fundamentally, ``procedural due process rules are shaped by

the risk of error inherent in the truth-finding process as applied to

the generality of cases, not the rare exceptions.'' Mathews, 424 U.S.

at 344. And ``[i]t would be inconsistent with that principle to require

a hearing * * * when review of [an alien's] written submission is an

adequate means of resolving all but a few * * * disputes.'' Califano,

442 U.S. at 696. If an alien believes that due process requires

additional protections because of the particular exigencies of his or

her case, the alien can raise the issue in the record of proceedings,

and the alien thereafter can, in appropriate circumstances, seek

judicial review to redress any alleged constitutional deprivation. But

the mere possibility of such as-applied due process challenges does not

justify the enormous cost that would be entailed in providing an in-

person hearing for every deportation determination. See Mathews, 424

U.S. at 909; Califano, 442 U.S. at 696. Therefore, the rule is not

susceptible to a ``facial challenge'' on procedural due process

grounds. Cf. Reno v. Flores, 113 S. Ct. at 1450-51 (because due process

would not be denied in the majority of cases, facial due process

challenge is rejected).

Accordingly, the provisions of the proposed rule requiring a

documentary record and not requiring an in-person hearing have been

adopted without substantive amendment in the final rule.

2. Reasonable Notice

Comments: Several commenters stated that the Notice provided to the

alien pursuant to 8 CFR 242.25(b)(2) should advise the alien of

eligibility for relief, be translated into the alien's native language

if he or she is not proficient in English, and be explained to the

alien. Other commenters stated that aliens often do not understand that

nature of the proceedings; that aliens may be incompetent or mentally

ill; and that proper notice should include more information regarding

the law and legal rights. One comment stated that if the alien receives

the Notice while detained, the regulation should provide that the alien

be given writing materials and postage stamps for a response.

Response and Disposition: In conformity with the statute and the

final rule, the Notice of Intent to Issue a Final Administrative

Deportation Order (Form I-851) will contain legally sufficient factual

allegations, conclusions of law, charge of deportability, and advice to

the respondent (similar to an Order to Show Cause). These elements of

notice satisfy due process requirements. The Notice will instruct the

alien to identify which findings supporting deportation he or she is

challenging, if any, and to corroborate any challenge with

documentation or other evidence. To facilitate the process, page two of

the Notice of Intent also will provide easy-to-understand boxes that an

alien

[[Page 43958]]

should check to indicate the nature of the alien's response. It would

be inappropriate for the regulation to recommend which kinds of

evidence an alien should choose to present in defending against the

charge or in presenting a claim to relief, given the variety of

evidence that might be germane to the determinations at issue.

Both the Act and the regulations set forth the various forms of

relief that may or may not be available in deportation proceedings.

Moreover, under the rule, aliens will have a reasonable opportunity to

obtain counsel of their choosing who may assist them in determining

whether relief is available. If an alien submits evidence supporting a

prima facie claim that he or she may be statutorily eligible for some

relief from deportation, Sec. 242.25(d)(2)(iii) of the rule requires

the Service to terminate the administrative proceedings and, where

appropriate, to initiate proceedings before an Immigration Judge. If an

alien appears to satisfy the statutory conditions for eligibility for

relief from deportation, the Service would not then have jurisdiction

to commence or to continue proceedings under 242A(b) of the Act. In

light of these protections, the proposed rule will not be changed to

require that the Service advise the alien of the various forms of

statutory eligibility for relief.

The Form I-851 (Notice of Intent) will advise respondent aliens of

the availability of a list of free legal services. The rule is amended

to require the Service to provide such a legal aid list in conjunction

with the Notice of Intent. Service of the Notice must, in accordance

with 8 CFR 292.5(a), be made upon an attorney or representative of

record, if the alien is so represented. The Notice of Intent will

clearly provide the address to which the alien must send a response.

The Service agrees that it is important that the alien understand

the Notice of Intent. Therefore, to enhance fairness and ensure that

the notice of the charges is reasonable, the proposed rule is amended

to add subparagraph (iv) to 8 CFR 242.25(b)(2), which will require that

the Service either provide the alien a written translation of the

Notice of Intent or explain the contents of the Notice of Intent in the

alien's native language or in a language that the alien understands.

The Service agrees that, in certain particular cases, an alien may

be unable to read or understand the nature of proceedings because of

his or her incompetence or mental illness. This rule provides a

reasonable opportunity for an alien to seek the services of counsel, a

relative, or friend. Providing further protections in a particular

proceeding where circumstances warrant such protections will be the

responsibility of the deciding Service officer, who may, for example,

schedule an interview, where appropriate. The Service officer's

decision on what, if any, additional notice and/or procedure to provide

the alien will be subject to judicial review. The possibility that the

Notice of Intent might not suffice to provide constitutionally adequate

notice in rare circumstances does not suffice to call into question the

constitutionality of the rule itself, which will provide

constitutionally sufficient notice in the vast majority of cases. See

Mathews, 424 U.S. at 909; Califano, 442 U.S. at 696.

3. Fair Opportunity To Respond to the Notice and To Inspect and Rebut

the Evidence Supporting Deportation

Comments: Several commenters stated that the proposed rule would

not provide sufficient time for an alien to respond to the Notice, and

suggested that the response period be changed to one month. Commenters

state that respondents who are incompetent, mentally ill, or who do not

understand the nature of the proceedings, may need more time to obtain

counsel and to rebut the charge. The comments outlined the numerous

obstacles that detained aliens may face, such as: language impediments;

mail delays; an inability to communicate with family, attorneys, and

potential witnesses; lack of access to law libraries or writing

materials; and difficulty in producing affidavits, identification

documents, or birth records. One commenter stated that requiring the

response to be supported by an affidavit is unnecessary because the

regulation can provide that any response shall be considered to be made

under oath. Finally, some commenters stated that the record of

proceeding should be provided automatically to all aliens, rather than

only upon an alien's request.

Response and Disposition: The Service believes that the proposed

rule provides a fair opportunity for aliens to inspect evidence and

rebut charges of deportability. Pursuant to 8 CFR 242.25(c)(2), ``[i]f

an alien's written response requests the opportunity to review the

Government's evidence, the Service shall serve the alien with a copy of

the evidence in the record of proceeding upon which the Service is

relying to support the charge.'' The alien then has ten additional days

following service of the Government's evidence (thirteen days if

service is by mail), to furnish a final response in accordance with 8

CFR 242.25(c) (1)-(2). Pursuant to 8 CFR 242.25(d)(2)(ii)(B), if, after

the alien's rebuttal of the Notice, the deciding Service officer

considers additional evidence from a source other than the alien, that

evidence will also be provided to the alien and still another extension

of time to respond shall be given. Thus, these regulations already

provide respondents ample opportunity to inspect all evidence relied

upon by the Government and contained in the record of proceeding.

The Service believes that any further increase in the time periods

for response would contravene Congress' intent that the Service

expeditiously adjudicate the deportation cases of the serious criminal

offenders described under section 242A(b) of the Act. Many aliens in

this class, particularly in county and local jails, are inmates who are

incarcerated less than a year, and frequently less than six months.

Expeditious proceedings under section 242A(b) of the Act will prevent

``spillover'' detention of these short-term inmates into the Service's

detention, thereby relieving the aliens of further incarceration while

saving substantial costs to the Service and to the public. Nonetheless,

if an alien makes a timely written request for more time and explains

the reasons for doing so--for instance, that the alien needs to contact

family members or potential witnesses--the deciding Service officer may

grant an extension for the alien to file a response under 8 CFR

242.25(c)(1). The deciding Service officer must ensure fairness in the

adjudicative process. Accordingly, the Service believes that this rule

provides sufficient opportunity for aliens to respond to the Notice.

The Service believes that the requirement that the alien request

access to the evidence in order to receive it is constitutional and

salutary. As explained above, it is unlikely that the majority of

aliens covered by the administrative proceedings will contest their

deportability. This fact counsels against expending the considerable

cost and burden of sending all evidence to all aliens in the first

instance. Those aliens who do wish to contest deportation readily can

receive the evidence upon a simple request. Moreover, section 291 of

the Act expressly provides that in presenting proof of time, manner,

and place of entry into the United States, the alien ``shall be

entitled to the production of his visa or other entry document, if any,

and of any other documents and records * * * pertaining to such entry

in the custody of the Service.'' The Service must therefore produce any

such documents that are in its possession in accordance with that

section of the Act.

[[Page 43959]]

The Service agrees that an alien should not be required to submit

an accompanying affidavit with his or her response. It is incumbent

upon the alien to choose his or her own corroborating evidence in

rebutting a charge. Accordingly, Sec. 242.25(c)(2) has been modified to

provide that the alien should submit with the response ``affidavit(s),

documentary evidence, or other specific evidence supporting the

challenge.''

4. Impartial Fact-Finder

Comments: Several commenters stated that the rule was unfair or

unconstitutional because it will permit the issuing Service officer and

the deciding Service officer both to be enforcement officials who may

be agents of the same party, such as a District Director. One commenter

recommended that the rule should explicitly prohibit the deciding

Service officer from engaging in ex parte communication with the

issuing Service officer or otherwise considering evidence outside the

record, because due process requires that the decisionmaker make an

independent evaluation and consider only evidence on the record that

the alien has had a fair opportunity to rebut. Another commenter urged

that the initiation of proceedings under the rule be subject to review

by the Service's General Counsel, and another expressed concern that

the rule does not provide adequate checks against Service misconduct.

Response and Disposition: Congress has provided for administrative

deportation proceedings to be conducted without a hearing before an

Immigration Judge. The officers of the Service are in the best position

to perform such proceedings. The statute mandates that the Final

Administrative Deportation Order not be issued by the same person who

issues the Notice of Intent, and the rule reflects this protection.

The Service believes that the rule reasonably ensures that

decisions are made by an impartial fact-finder. In order to prevent any

``blurring'' of investigative and adjudicative functions, the statute

and the rule expressly forbid the ``deciding'' officer from being the

same person who issues the charging document. It has been clear for at

least 40 years that due process is not violated in deportation

proceedings simply because the deciding official is subject to the

control of officials charged with investigative and prosecuting

functions. Marcello v. Bonds, 349 U.S. 302, 311 (1955).

Since the Service's attorney work force is available to provide

legal advice to Service personnel, there is no need in the regulation

to require General Counsel review of administrative proceedings.

The deciding Service officer is authorized under 8 CFR 242.25(d) to

issue an order of deportation only if the ``evidence in the record of

proceeding'' establishing deportability is clear, convincing and

unequivocal. Thus, that officer is duty-bound to make an independent

evaluation only of the evidence contained in the four corners of the

record of proceeding, and may not rely upon evidence outside the record

of proceeding. In addition, since the deciding Service officer is not

authorized to make discretionary determinations on eligibility for

relief in section 242A(b) proceedings, he or she may not consider any

discretionary factors. Accordingly, the proposed rule has not been

modified.

5. Termination of Immigration Judge Proceedings Without Prejudice to

the Service

Comment: The proposed rule provides that the Service may request

that proceedings before an Immigration Judge be terminated so that

administrative deportation proceedings may be initiated. One commenter

stated that if the Government moves to terminate an Immigration Judge

proceeding commenced under section 242(b) of the Act, such termination

should be with prejudice to the Service because the Service should not

be allowed to ``forum shop'' and reinstate the deportation process in a

setting where the alien has fewer procedural protections.

Response and Disposition: The Service may initiate or continue

proceedings under this rule only if there is no evidence that an alien

is prima facie eligible for relief. Thus, for example, if after a

Notice of Intent is issued, the Service discovers that an alien appears

to be statutorily eligible for relief from deportation, then, pursuant

to 8 CFR 242.25(d)(2)(iii), the Service must terminate administrative

deportation proceedings and, where appropriate, initiate deportation

proceedings under section 242(b) of the Act.

Conversely, if the Service discovers that an alien who has been

placed in proceedings before an Immigration Judge in fact is amenable

to proceedings under section 242A(b) of the Act, it would implement

Congress' intent for the Service to exercise its prosecutorial

discretion to move to terminate the Immigration Judge proceedings in

order to expedite the deportation process. In such a case, the alien's

eligibility for expedited deportation renders the Immigration Judge

proceedings unnecessary. Transfer to administrative proceedings in such

a case would not be ``forum shopping''; rather, it would simply be a

move to a more efficient and appropriate forum, in accord with

Congress' intent that administrative proceedings be used for aliens who

have committed aggravated felonies and who are not lawful permanent

residents. There is, therefore, no reason that the termination of

Immigration Judge proceedings should be with prejudice to the Service,

particularly since the Immigration Judge will have made no decision on

the substantive issues of deportability under section 241 of the Act or

relief from deportation. The final rule therefore will remain

unchanged.

6. Lack of Administrative Appeal

Comment: A commenter cautioned that execution of Final

Administrative Deportation Orders should not be completed without

allowing appeal to the Board of Immigration Appeals (``BIA''), to

permit an independent review of the evidence by the BIA. This commenter

stated that such appeals would not delay deportations because appeals

would be completed while the alien is serving his or her sentence.

Another commenter stated that, by eliminating any meaningful

administrative hearing or review, the regulations will place an added

burden on federal courts, which will be forced to decide issues more

appropriately resolved on the administrative level.

Response and Disposition: Congress authorized administrative

deportation in order to streamline deportation proceedings for a

certain class of aliens with respect to whom the decision to deport

typically is straightforward and not subject to discretionary or

equitable considerations. The rule affords the alien the right to

petition for judicial review on limited issues, and such a petition

will be entertained by a federal appellate court, which is an

independent tribunal with jurisdiction to decide any due process claims

properly raised. As noted above, many of the inmates described by the

provisions of section 242A(b) of the Act serve short sentences. County

and city jail terms of less than a year, and frequently less than six

months, are often too short to permit Institutional Hearing Program

hearings prior to Service detention of such aliens. This rule permits

the Service to serve Notices of Intent to issue a Final Administrative

Deportation Order upon short-term inmates and more rapidly adjudicate

their cases before the inmates are released from incarceration. The

rule

[[Page 43960]]

thus prevents costly detention at Service expense and appropriately

eliminates a layer of administrative hearings and administrative

appeals, which will in turn make it more likely that deportation

proceedings will be completed before inmates' release from

incarceration. In addition, some aliens convicted of aggravated

felonies who have completed their sentences might not be incarcerated

when first encountered by the Service. The Service must detain and hold

in custody such aliens, at great expense. The rule reduces the length

of detention in those cases, as well. Allowing an appeal to the BIA

would undermine Congress' intent by recreating the undesirable cost,

delay and detention problems that prompted Congress to act in the first

instance to permit expedited deportation. Accordingly, the proposed

rule remains unchanged.

7. Ensuring That Responses Are Timely Included in Records of Proceeding

Comment: Two commenters expressed concern that, since many offices

of the Service are not in a position to process mail received on a

timely basis, the Service may not be able to include an alien's timely

responses in a record of proceeding in time to prevent the alien from

receiving a final order of deportation for failure to timely file a

response. The comments stated that, in such a case, the case should be

reopened.

Response and Disposition: The rule specifically requires the

Service to create and maintain a full record of proceeding in each

case. The Notice of Intent will facilitate the matching of responses to

the record of proceeding by providing the alien with the contact person

to whom the response must be submitted, and an address for that person.

Like any other court proceeding, Service personnel will be responsible

for matching documents to the record of proceeding for review and

adjudication by the deciding Service officer in the district or sector

where the charging document was issued.

The deciding Service officer is not precluded from correcting any

mistake discovered with respect to the timeliness of receipt of any

document, or any other mistake that is pertinent to the final decision.

To the contrary, the deciding Service officer may render whatever

ruling is deemed appropriate that is supported by the record in

carrying out his or her responsibilities as an adjudicator.

Furthermore, the integrity of the process in a particular case remains

subject to judicial review on a petition for review, based upon the

full record of proceeding.

8. Risk of Deporting U.S. Citizens, Permanent Residents, or Other

Aliens Ineligible for Deportation or Eligible for Relief From

Deportation

Comments: Several commenters stated that the process creates an

unacceptable risk of deporting a United States citizen or lawful

permanent resident alien. Commenters also questioned the training and

expertise of issuing Service officers, arguing that the issues of

aggravated felony conviction, derivative citizenship, and relief from

deportation are too complex and should be left to an Immigration Judge.

One commenter warned that Service officers may initiate expedited

proceedings against aliens who have a right to hearings before

Immigration Judges or who are citizens and are not aware of it, and the

Service will have no incentive to verify derivative citizenship. These

commenters even recommended that the Attorney General withdraw the

proposed rule for these reasons.

Response and Disposition: As previously stated, Congress authorized

administrative deportation for aliens who are aggravated felons and who

are not lawful permanent residents. The due process safeguards

incorporated in this rule are designed precisely to minimize the risk

of an erroneous determination of deportability, while ensuring

fairness. As explained above, ``procedural due process rules are shaped

by the risk of error inherent in the truth-finding process as applied

to the generality of cases, not the rare exceptions.'' Mathews, 424

U.S. at 344. Under this rule, the risk of making an erroneous decision

in the generality of cases is minimal. The questions of citizenship,

alienage, lawful permanent resident status, conviction for an

aggravated felony, and statutory eligibility for relief, are matters

that are well within the expertise and competence of Service officers

to decide. Indeed, pursuant to other provisions of the Act and other

regulations, immigration officers already regularly determine issues

germane to deportability, including: whether an alien is finally

convicted of an aggravated felony (for purposes of issuing charging

documents); acquisition of citizenship at birth; derivation of

citizenship; eligibility for adjustment of status or naturalization;

and eligibility for any of the forms of relief under the Act. Under

current law, district directors are authorized to adjudicate a variety

of applications for immigration benefits, including the authority to

grant or deny petitions for naturalization.

Because of the straightforward, nondiscretionary nature of the

determinations under this rule, there is no reason to believe that

United States citizens would face a greater risk of deportation before

the deciding Service officer than before an Immigration Judge. If,

after the Notice of Intent is issued, an alien appears to be

statutorily eligible for relief or raises a genuine issue of material

fact regarding the preliminary findings, then the deciding Service

officer must either seek additional evidence bearing on the disputed

issue, or terminate the administrative deportation proceedings.

9. Typographical and Other Non-Substantive Corrections

Comment: A commenter pointed out that the title for proposed 8 CFR

242.25(d)(iii) does not make sense as it presently reads.

Response and Disposition: The commenter is correct that the word

``Secretary'' in the heading of 8 CFR 242.25(d)(iii) is a typographical

error, and should read ``Statutory.'' Accordingly, the word

``Secretary'' is replaced by the word ``Statutory'' in the final rule.

The substantive text of the above section, nevertheless, was correct

and sufficiently clear to allow for meaningful comment on this

provision of the proposed rule. This final rule also makes other non-

substantive corrections to the language of the proposed rule.

10. Favorable Comments

Comment: One respondent, a metropolitan Chief of Police, pledged to

give this procedure his full support because it is a positive step in

dealing with the problems created by criminal undocumented aliens, a

growing and dangerous segment of the criminal population.

Response and Disposition: The Service agrees with the commenter

that the process under the rule will help combat criminal activity of

deportable aliens in many parts of the country, as Congress intended.

Attorney General Certifications

The Attorney General, in accordance with 5 U.S.C. 605(b), certifies

that this rule does not have a significant adverse economic impact on a

substantial number of small entities.

This rule is not considered to be a ``significant regulatory

action'' within the meaning of section 3(f) of E.O. 12866, Regulatory

Planning and Review, and the Office of Management and Budget has waived

its review process under section 6(a)(3)(A).

This rule is not considered to have Federalism implications

warranting the

[[Page 43961]]

preparation of a Federalism Assessment in accordance with section 6 of

Executive Order 12612.

List of Subjects

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, part 242 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

1. The authority citation for part 242 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,

1252a, 1252b, 1254, 1362; 8 CFR part 2.

2. In part 242, a new section 242.25 is added to read as follows:

Sec. 242.25 Proceedings under section 242A(b) of the Act.

(a) Definitions. As used in this section--Deciding Service officer

means a district director, chief patrol agent, or another immigration

officer designated by a district director or chief patrol agent, who is

not the same person as the issuing Service officer. Issuing Service

officer means any Service officer listed in Sec. 242.1(a) as authorized

to issue orders to show cause. Prima facie claim means a claim that, on

its face and consistent with the evidence in the record of proceeding,

demonstrates an alien's present statutory eligibility for a specific

form of relief from deportation under the Immigration and Nationality

Act (``the Act'').

(b) Preliminary consideration and Notice of Intent to issue a Final

Administrative Deportation Order; commencement of proceedings. (1)

Basis of Service charge. An issuing Service officer shall cause to be

served upon an alien a Notice of Intent to issue a Final Administrative

Deportation Order (Notice of Intent, Form I-851), if the officer is

satisfied that there is sufficient evidence, based upon questioning of

the alien by an immigration officer and upon any other evidence

obtained, to support a finding that the individual:

(i) Is an alien;

(ii) Has not been lawfully admitted for permanent residence;

(iii) Has been convicted (as demonstrated by one or more of the

sources listed in Sec. 3.41 of this chapter) of an aggravated felony

and such conviction has become final;

(iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and

(v) Does not appear statutorily eligible for any relief from

deportation under the Act.

(2) Notice. (i) Deportation proceedings under section 242A(b) of

the Act shall commence upon personal service of the Notice of Intent

upon the alien, as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of

this chapter. The Notice of Intent shall set for the preliminary

determinations and inform the alien of the Service's intention to issue

a Final Administrative Deportation Order (Final Administrative

Deportation Order, Form I-851A) without a hearing before an Immigration

Judge. This Notice shall constitute the charging document. The Notice

of Intent shall include allegations of fact and conclusions of law. It

shall advise that the alien: has the privilege of being represented by

counsel of the alien's choosing, at no expense to the Government, as

long as counsel is authorized to practice in deportation proceedings;

may inspect the evidence supporting the Notice of Intent; and may rebut

the charges within ten (10) calendar days after service of such Notice

(or thirteen (13) calendar days if service of the Notice was by mail).

(ii) The Notice of Intent also shall advise the alien that he or

she may designate in writing, within ten (10) calendar days of service

of the Notice of Intent (or thirteen (13) calendar days if service is

by mail), the country to which he or she chooses to be deported in

accordance with section 243 of the Act, in the event that a Final

Administrative Deportation Order is issued, and that the Service will

honor such designation only to the extent permitted under the terms,

limitations, and conditions of section 243 of the Act.

(iii) The Service shall provide the alien with a list of available

free legal services programs qualified under part 292a of this chapter

and organizations recognized pursuant to part 292 of this chapter,

located within the district or sector where the Notice of Intent is

issued.

(iv) The Service must either provide the alien with a written

translation of the Notice of Intent or explain the contents of the

Notice of Intent to the alien in the alien's native language or in a

language that the alien understands.

(c) Alien's response. (1) Time for response. The alien will have

ten (10) calendar days from service of the Notice of Intent, or

thirteen (13) calendar days if service is by mail, to file a response

to the Notice. If the final date for filing such a response falls on a

Saturday, Sunday, or legal holiday, the response shall be considered

due on the next business day. In the response, the alien may: Designate

his or her choice of country for deportation; submit a written response

rebutting the allegations supporting the charge and/or requesting the

opportunity to review the Government's evidence; and/or request in

writing an extension of time for response, stating the specific reasons

why such an extension is necessary. Alternatively, the alien may, in

writing, choose to accept immediate issuance of a Final Administrative

Deportation Order. The deciding Service officer may extend the time for

response for good cause shown. A request for extension of time for

response will not automatically extend the period for the response. The

alien will be permitted to file a response outside the prescribed

period only if the deciding Service officer permits it. The alien must

send the response to the deciding Service officer at the address

provided in the Notice of Intent.

(2) Nature of rebuttal or request to review evidence. (i) If an

alien chooses to rebut the allegations contained in the Notice, the

alien's written response must indicate which finding(s) are being

challenged and should be accompanied by affidavit(s), documentary

information, or other specific evidence supporting the challenge. If

the alien asserts that he or she is entitled to statutory relief from

deportation, the alien also should include with the response a

completed and signed application designed for the relief sought.

(ii) If an alien's written response requests the opportunity to

review the Government's evidence, the Service shall serve the alien

with a copy of the evidence in the record of proceeding upon which the

Service is relying to support the charge. The alien may, within ten

(10) calendar days following service of the Government's evidence

(thirteen (13) calendar days if service is by mail), furnish a final

response in accordance with paragraph (c)(1) of this section. If the

alien's final response is a rebuttal of the allegations, such a final

response should be accompanied by affidavit(s), documentary

information, or other specific evidence supporting the challenge. If

the alien asserts that he or she is entitled to statutory relief from

deportation, the alien also should include with the final response a

completed and signed application designed for the relief sought.

(d) Determination by deciding Service officer. (1) No response

submitted or concession of deportability. If the deciding Service

officer does not receive

[[Page 43962]]

a timely response and the evidence in the record of processing

establishes deportability by clear, convincing, and unequivocal

evidence, or if the alien concedes deportability, then the deciding

Service officer shall issue and cause to be served upon the alien a

Final Administrative Deportation Order that states the reasons for the

deportation decision. The alien may knowingly and voluntarily waive in

writing the 30-day waiting period before execution of the final order

of deportation provided in paragraph (f) of this section.

(2) Response submitted. (i) Insufficient rebuttal; no prima facie

claim or genuine issue of material fact: If the alien timely submits a

rebuttal to the allegations, but the deciding Service officer finds

that deportability is established by clear, convincing, and unequivocal

evidence in the record of proceeding, and that the alien has not

demonstrated a prima facie claim of eligibility for relief from

deportation under the Act, the deciding Service officer shall issue and

cause to be served upon the alien a Final Administrative Deportation

Order that states the reasons for the deportation decision.

(ii) Additional evidence required. (A) If the deciding Service

officer finds that the record of proceeding, including the alien's

timely rebuttal, raises a genuine issue of material fact regarding the

preliminary findings, the deciding Service officer may either obtain

additional evidence from any source, including the alien, or cause to

be issued an order to show cause to initiate deportation proceedings

under section 242(b) of the Act. The deciding Service officer also may

obtain additional evidence from any source, including the alien, if the

deciding Service officer deems that such additional evidence may aid

the officer in the rendering of a decision.

(B) If the deciding Service officer considers additional evidence

from a source other than the alien, that evidence shall be made a part

of the record of proceeding, and shall be provided to the alien. If the

alien elects to submit a response to such additional evidence, such

response must be filed with the Service within ten (10) calendar days

of service of the additional evidence (or thirteen (13) calendar days

if service is by mail). If the deciding Service officer finds, after

considering all additional evidence, that deportability is established

by clear, convincing, and unequivocal evidence in the record of

proceeding, and that the alien does not have a prima facie claim of

eligibility for relief from deportation under the Act, the deciding

Service officer shall issue and cause to be served upon the alien a

Final Administrative Deportation Order that states the reasons for the

deportation decision.

(iii) Statutory eligibility for relief; conversion to proceedings

under section 242(b) of the Act. If the deciding Service officer finds

that the alien is not amenable to deportation under section 242A(b) of

the Act or has presented a prima facie claim of statutory eligibility

for a specific form of relief from deportation, the deciding Service

officer shall terminate the expedited proceedings under section 242A(b)

of the Act, and shall, where appropriate, cause to be issued an order

to show cause for the purpose of initiating an Immigration Judge

proceeding under section 242(b) of the Act.

(3) Termination of proceedings by deciding Service officer. Only

the deciding Service officer may terminate proceedings under section

242A(b) of the Act, in accordance with this section.

(e) Proceedings commenced under section 242(b) of the act. In any

proceeding commenced under section 242(b) of the Act, if it appears

that the respondent alien is subject to deportation pursuant to section

242A(b) of the Act, the Immigration Judge may, upon the Service's

request, terminate the case and, upon such termination, the Service may

commence administrative proceedings under section 242A(b) of the Act.

However, in the absence of any such request, the Immigration Judge

shall complete the pending proceeding commenced under section 242(b) of

the Act.

(f) Executing final deportation order of deciding Service officer.

(1) Time of execution. Upon the issuance of a Final Administrative

Deportation Order, the Service shall issue a warrant of deportation in

accordance with 8 CFR 243.2; such warrant shall be executed no sooner

than 30 calendar days after the date the Final Administrative

Deportation Order is issued, unless the alien knowingly, voluntarily

and in writing waives the 30-day period. The 72-hour provisions of

Sec. 243.3(b) of this chapter shall not apply.

(2) Country to which alien is to be deported. The deciding Service

officer shall designate the country of deportation in the manner

prescribed by section 243(a) of the Act.

(g) Arrest and detention. At the time of issuance of a Notice of

Intent or at any time thereafter and up to the time the alien becomes

the subject of a warrant of deportation, the alien may be arrested and

taken into custody under the authority of a warrant of arrest issued by

an officer listed in Sec. 242.2(c)(1) of this chapter. Pursuant to

section 242(a)(2)(A) of the Act, the deciding Service officer shall not

release an alien who has not been lawfully admitted. Pursuant to

section 242(a)(2)(B) of the Act, the deciding Service officer may

release an alien who has been lawfully admitted if, in accordance with

Sec. 242.2(h) of this chapter, the alien demonstrates that he or she is

not a threat to the community and is likely to appear at any scheduled

hearings. The decision of the deciding Service officer concerning

custody or bond shall not be administratively appealable during

proceedings initiated under section 242A(b) of the Act and this

section.

(h) Record of proceeding. The Service shall maintain a record of

proceeding for judicial review of the Final Administrative Deportation

Order sought by any petition for review. The record of proceeding shall

include, but not necessarily be limited to: the charging document

(Notice of Intent); the Final Administrative Deportation Order

(including any supplemental memorandum of decision); the alien's

response, if any; all evidence in support of the charge; and any

admissible evidence, briefs, or documents submitted by either party

respecting deportability or relief from deportation.

PART 299--IMMIGRATION FORMS

3. The authority citation for part 299 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

4. Section 299.1 is amended by adding the entries for Forms ``I-

851'' and ``I-851A'' to the listing of forms, in proper numerical

sequence, to read as follows:

Sec. 299.1 Prescribed forms.

* * * * *

------------------------------------------------------------------------

Edition

Form No. date Title

------------------------------------------------------------------------

* * * * *

I-851 04-06-95 Notice of Intent to Issue Final Administrative

Deportation Order.

I-851A 04-06-95 Final Administrative Deportation Order.

* * * * *

------------------------------------------------------------------------

Dated: August 17, 1995.

Janet Reno,

Attorney General.

[FR Doc. 95-20946 Filed 8-23-95; 8:45 am]

BILLING CODE 4410-01-M