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

SUMMARY: This rule proposes to establish alternative administrative

deportation procedures for aliens not admitted for permanent residence

and not eligible for any relief from deportation who have been

convicted of aggravated felonies. This regulation is necessary to

implement a recently enacted statutory measure eliminating the

requirement for a hearing before an immigration judge and limiting

judicial review. While incorporation procedural safeguards, it will

expedite the deportation process in certain cases involving serious

criminal offenses.

DATES: Written comments must be submitted on or before May 30, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, Room 5307, 425 I Street NW., Washington, DC 20536. Attention:

Public Comment Clerk. To ensure proper handling, please reference INS

No. 1672-94 on your correspondence. Comments are available for public

inspection at this location by calling (202) 514-3048 to arrange for an

appointment.

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

Deportation Officer, Immigration and Naturalization Service, 425 I

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

SUPPLEMENTARY INFORMATION: This proposed rule establishes an expedited

administrative deportation process. Section 130004 of the Violent Crime

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

section 242A of the Immigration and Nationality Act (Act), effective

September 14, 1994, to authorize such a process. Amended section

242A(b) of the Act authorizes the Attorney General to implement a

deportation procedure that eliminates hearings before immigration

judges for certain aliens convicted of serious criminal offenses.

Limited judicial review is authorized upon the filing of a petition for

review within 30 days after the administrative deportation order is

issued. Also, the Immigration and Nationality Technical Corrections Act

of 1994, Public Law 103-416, enacted October 25, 1994, made minor

technical changes to the statutory administrative deportation

procedures.

Before enactment of Public Law 103-322, except in the case of

certain Visa Waiver Pilot Program and crewman violators, deportation

proceedings were required to be conducted before an immigration judge

pursuant to section 242(b) of the Act. By enactment of Public Law 103-

322, Congress provided for a more streamlined deportation process for

an alien who is convicted of an aggravated felony and who is not a

lawful permanent resident. The procedure is available only if the alien

is not eligible for any form of relief from deportation under the Act.

Section 242A(b)(4) requires the Attorney General to prescribe

regulations to conduct proceedings under the section. This proposed

rule authorizes a district director or chief patrol agent to issue a

final administrative order of deportation in accordance with section

242A(b) of the Act.

The proposed rule would require the Service to perform certain

functions to afford the alien procedural protection during the

administrative process:

a. The alien would be given reasonable notice of the charge of

deportability. The notice would set forth allegations of fact and

conclusions of law establishing that the alien is not a lawful

permanent resident, is deportable under section 241(a)(2)(A)(iii) of

the Act (relating to conviction for an aggravated felony), and is

ineligible for relief from deportation.

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

convincing, and unequivocal evidence, and a record would be maintained

for judicial review.

c. The alien would have an opportunity to be represented by counsel

in the deportation proceedings at no expense to the government.

d. The alien would have a reasonable opportunity to inspect the

evidence and rebut the allegations and/or charge within ten days, with

an extension granted by the district director or chief patrol agent for

good cause shown.

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

person who issues the notice of the Service's intention to issue a

final order (i.e. the charge).

f. The alien would be able to seek review of the final order by

filing a petition for judicial review within 30 days.

During the administrative deportation process, the district direct

or chief patrol agent would determine the alien's custody status in

accordance with applicable provisions of section 242 of the Act. The

alien would be able to seek review of the custody determination in

habeas corpus proceedings.

Section 242(b) of the Act does not apply when the alien is eligible

for relief from deportation under the Act. If the Service finds that

the alien's response presents a prima facie claim of statutory

eligibility for relief, the rule proposes that the district director or

chief patrol agent (or their designee) shall terminate proceedings

under section 242A(b) of the Act, and shall, where appropriate, issue

an order to show cause for the purpose of initiating an immigration

judge proceeding under section 242(b) of the Act.

Limited judicial review of the final administrative deportation

order may be obtained by filing a petition for review in accordance

with section 106 of the Act. The review, however, is statutorily

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

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

permanent residence at the time at which deportation proceedings

commenced; (3) whether the person is not eligible for any relief from

deportation; (4) whether the alien has been convicted of an aggravated

felony and such conviction has become final; and (5) whether the alien

was afforded [[Page 16387]] the procedures required by section

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

Sections 242(a) (2)(A) and (2)(B) of the at require the Service to

detain, until the order is executed, any aggravated felon who has not

been ``lawfully admitted.'' An alien who has been lawfully admitted may

be released from custody if the alien demonstrates to the satisfaction

of the Attorney General that the alien is not a threat to the community

and is likely to appear for any scheduled proceedings. An immigration

judge is not authorized to consider (or redetermine) custody issues

under the rule. The alien may seek review of the bond determination by

filing a writ of habeas corpus with the district court.

Regulatory Flexibility Act

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

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

substantial number of small entities because the affected parties are

individual aliens who have been ordered deported from the United

States.

Executive Order No. 12866

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

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

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

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

Executive Order No. 12612

This rule is not considered to have Federalism implications

warranting the preparation of a Federalism Assessment in accordance

with section 6 of E.O. 12612.

Executive Order 12606

The Attorney General certifies that she has assessed this rule in

light of the criteria in E.O. 12606 and has determined that this rule

will not have an impact on family formation, maintenance, or general

well-being.

List of Subjects in 8 CFR Part 242

Administrative practice and procedure, Aliens, Deportation.

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

Federal Regulations is proposed to be amended as follows:

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

UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

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

follows:

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

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

2. In part 242, a new Sec. 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 his or her designated representative who is not the same

person as the issuing Service officer.

Issuing Service officer means any Service officer listed in

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 present

statutory eligibility for a specific form of relief from deportation

under the Immigration and Nationality Act (Act).

(b) Preliminary consideration and notice of intent to issue a final

administrative deportation order; commencement of proceedings. (1)

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

served upon the alien a notice of intent to issue a final

administrative deportation order (Notice of Intent, Form I-851) if he

or she is satisfied that there is evidence sufficient to support a

finding that the individual:

(i) Is an alien;

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

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

sources listed in 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. 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 Sec. 103.5a(a)(2), 103.5a(b), and

103.5a(c)(2) of this chapter. The Notice of Intent shall set forth the

preliminary determinations and inform the alien of the Service's

intention to issue a final administrative order of deportation (Final

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

an immigration judge. This notice shall constitute the charging

document. The Notice of Intent shall include allegations of fact and

conclusions of law. It shall advise that the alien:

(i) Has the privilege of being represented by counsel of the

alien's choosing, at no expense to the government, as long as counsel

is authorized to practice in deportation proceedings;

(ii) May inspect the evidence supporting the Notice of Intent; and

(iii) May rebut the charges within ten calendar days after service

of such notice (or thirteen (13) days if service of the Notice was by

mail). The Notice of Intent shall also advise the alien that he or she

may designate in writing, within ten calendar days of service of the

Notice of Intent (or thirteen calendar days if service is by mail), the

country to which he or she chooses to be deported in accordance with

section 243 of the Act, in the event that a Final Administrative

Deportation Order is issued, and that the Service will honor such

designation only to the extent permitted under the terms, limitations,

and conditions of section 243 of the Act.

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

ten calendar days from service of the Notice of Intent, or 13 calendar

days if service is by mail,

(1) To designate his or her choice of country for deportation and

(ii) To submit a written response rebutting the allegations and/or

charge and/or requesting the opportunity to review the government's

evidence. The alien should send his or her designation of country for

deportation, and his or her written response to the charge, to the

deciding Service officer at the address provided in the Notice of

Intent. If the final date for filing falls on a Saturday, Sunday, or

legal holiday, the time shall be extended to the next business day. The

time for response may be extended by the deciding Service officer for

good cause shown in a written request for extension received within the

time to submit a written response. The request must explain

specifically why an extension is necessary. A request for extension of

time for response will not automatically toll the prescribed period

(e.g., ten days) for that response. The alien will be permitted to file

a response outside the prescribed period only if the deciding Service

officer permits it. The alien may, in writing, choose to accept

immediate issuance of a Final Administrative Deportation Order.

(2) Nature of response; request to review evidence. The alien's

written response must indicate which finding(s) are being challenged

and must be accompanied by affidavit(s), documentary information, or

other specific evidence supporting the challenge. if the written

response [[Page 16388]] requests the opportunity to review the

government's evidence, the alien will be served with a copy of the

evidence in the record of proceeding relied on by the government to

support the allegations and/or charge. The alien may, within ten days

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

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

paragraph (c)(1) of this section. Either the alien's initial written

response or the alien's final response must be accompanied by an

affidavit and a completed and signed application designed for any

relief sought.

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

acceptance of Final Administrative Deportation Order. If

(i) A timely response is not received by the deciding Service

officer, or

(ii) The alien accepts immediate issuance of the Final

Administrative Deportation Order, then the deciding Service officer

shall issue and cause to be served upon the alien a Final

Administrative Deportation Order. The determination of deportability

must be supported by clear, convincing, and unequivocal evidence

contained in the record of proceeding.

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

claim or genuine issue of material fact. If the deciding Service

officer finds that the response fails to rebut the allegations and

charge in the Notice of Intent, fails to present a prima facie claim of

relief from deportation under the Act, and fails to raise a genuine

issue of material fact, he or she shall issue and cause to be served

upon the alien a Final Administrative Deportation Order. The

determination of deportability must be supported by clear, convincing,

and unequivocal evidence contained in the record of proceeding.

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

finds that the alien's response raises a genuine issue of material fact

regarding the preliminary findings, he or she

(A) May request additional information from any source, including

the alien, as he or she may deem appropriate, or

(B) Issue an order to show cause to initiate deportation

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

officer considers additional information from a source other than the

alien, that evidence shall be provided to the alien, and the alien may,

within ten days of service thereof (thirteen days if service is by

mail) furnish a response to the deciding Service officer. If, after

considering all additional information, the deciding Service officer

finds that deportation is supported by the requisite proof, he or she

shall issue and cause to be served upon the alien a Final

Administrative Deportation Order.

(iii) Secretary eligibility for relief; conversion to proceedings

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

that the alien has presented a prima facie claim of present statutory

eligibility for a specific form of relief from deportation, the

deciding Service officer shall terminate the expedited proceedings

under section 242A(b) of the Act, and shall, where appropriate, issue

an order to show cause for the purpose of initiating an immigration

judge proceeding under section 242(b) of the Act.

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

the deciding Service officer may terminate proceedings under section

242A(b) of the Act, in the exercise of his or her discretion.

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

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

that the respondent's case falls under the provisions of section

242A(b) of the Act, the immigration judge may, upon the Service's

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

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

However, in the absence of any such request, the immigration judge

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

the Act.

(f) Executing final order of deciding Service officer--

(1) Thirty (30) calendar days. Upon the issuance of a Final

Administrative Deportation Order, the Service shall issue a warrant of

deportation issued in accordance with 8 CFR part 243.2; such warrant

shall be executed no sooner than 30 calendar days after the date the

Final Administrative Deportation Order is issued, unless the 30-day

period is waived in writing by the alien. The 72-hour provisions of

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

(2) Place to which deported. The deciding Service officer shall

designate the country of deportation, in the manner prescribed by

section 243(a) of the Act.

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

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

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

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

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

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

242A(b) of the Act, the deciding Service officer shall not release an

alien who has not been lawfully admitted. Pursuant to section

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

alien who has been lawfully admitted based upon factors considered

under Sec. 242.2(h) of this chapter. The decision of the deciding

Service officer concerning custody or bond is not administratively

appealable during proceedings initiated under section 242A(b) of the

Act and this section.

(h) Record of proceeding. A record of proceeding shall be

maintained by the Service for judicial review of the Final

Administrative Deportation Order sought by any petition for review. The

record of proceeding shall include, but not necessarily be limited to,

the charging document (Notice of Intent); the Final Administrative

Deportation Order; the alien's response, if any; all evidence in

support of the charges; and any admissible evidence, briefs, or

documents submitted by either party respecting deportability or relief

from deportation.

Dated: March 16, 1995.

Janet Reno,

Attorney General.

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

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