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

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 242

[INS. No. 1827-96]

RIN 1115-AE69

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: In accordance with section 442(d) of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), this final rule adds a new

paragraph to the administrative deportation proceedings regulation. The

new paragraph explains how the Immigration and Naturalization Service

(Service) will conduct administrative deportation proceedings without

immigration court hearings for certain aliens convicted of aggravated

felonies in light of two recent statutory changes. The Service is

promulgating this final rule to comply with the statutory requirement

that the Service publish an implementing regulation by January 1, 1997.

The final rule states that the Service will continue to process aliens

under the current regulation until March 3, 1997, and will suspend

administrative deportation proceedings from March 3, 1997, until the

effective date of the implementing regulations for the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996.

EFFECTIVE DATE: March 3, 1997.

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: Section 130004(a) of the Violent Crime

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

new section 242A(b) of the Act, 8 U.S.C. 1252a(b), to provide for the

deportation without an immigration court hearing of certain aliens

convicted of aggravated felonies. On August 24, 1995, the Service

published a final rule at 60 FR 43954 to create 8 C.F.R. 242.25 that

implemented section 242A(b) of the Act. Section 442 of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modified

section 242A(b) and required that the Attorney General publish

implementing regulations by January 1, 1997, to take effect 60 days

after publication.

On September 30, 1996, however, Congress passed the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Public Law 104-208. Section 304(c) of the IIRIRA, effective April 1,

1997, further amended administrative deportation proceedings by

nullifying some of the amendments made by the AEDPA and by renumbering

the statutory section from section 242A(b) of the Act to section

238(b).

The AEDPA amendments would require significant changes in

operational procedures and forms that are not worthwhile, given that

those amendments will be effective only for approximately 1 month. For

example, the AEDPA added the requirement that administrative

deportation proceedings be ``conducted in, or translated for the alien

into, a language the alien understands.'' This provision would require

the Service to translate all documents used in the proceedings, rather

than only the Form I-851, Notice of Intent to Issue Final

Administrative Deportation Order. (Current translation and explanation

requirements are set forth in 8 CFR 242.25(b)(2)(iv)). Since the IIRIRA

has eliminated the statutory translation requirement, it would be

unduly burdensome to implement this requirement for 1 month.

Accordingly, as a policy matter, the Service has determined that

these implementing regulations will simply announce a suspension of the

operation of administrative deportation proceedings, which includes the

issuance of both Form I-851 and Form I-851A, Final Administrative Order

of Deportation, until the implementing regulations for the IIRIRA,

under separate notice of proposed rulemaking, are effective. The

Service will continue to process aliens under the current version of 8

CFR 242.25 until March 3, 1997. From that date until the IIRIRA

amendments to administrative deportation take effect, the Service will

cease all administrative deportation proceedings. During that period,

aliens otherwise amenable to administrative deportation will be placed

instead in regular deportation proceedings before an immigration judge.

This change does not affect the enforceability of administrative

deportation orders previously entered.

The Service has determined that the publication of this rule as a

final rule is based upon the ``good cause'' exceptions found at 5

U.S.C. 553(b)(3)(B). The Service has determined that public notice and

comment on this rule is impracticable because of the January 1, 1997,

statutory deadline for publishing a final rule. In addition, public

notice and comment is unnecessary because the final rule makes no

change that affects an individual's rights. It simply continues until

March 3, 1997, the existing rules governing administration deportation.

On that date, the Service will suspend administrative deportation

proceedings, and proceed under existing regulations governing regular

deportation proceedings. Since there will be public notice and comment

on the IIRIRA amendments to administrative deportation proceedings,

public notice and comment on this final rule is unnecessary.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that this rule

will not have a significant 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.

[[Page 69020]]

Executive Order No. 12866

This rule is not considered by the Department of Justice,

Immigration and Naturalization Service, to be a ``significant

regulatory action'' under Executive Order 12866, section 3(f),

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

The regulation adopted herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order No. 12988

The rule meets the applicable standards set forth in sections 3(a)

and (3)(b)(2) of E.O. 12988.

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 amended as follows:

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

THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

1. The authority citation for part 242 continues 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 section 242.25 a new paragraph (i) is added to read as

follows:

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

* * * * *

(i) Effective March 3, 1997, the Service will cease issuance of

both Form I-851 and Form I-851A. The Service retains the authority to

execute at any time Form I-851A that is final before March 3, 1997. The

Service will resume the issuance of Form I-851 and Form I-851A after

April 1, 1997, pursuant to regulations implementing section 238(b) of

the Act, as amended by the Illegal Immigration Reform and

Responsibility Act of 1996.

Dated: December 20, 1996.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 96-33092 Filed 12-24-96; 10:56 am]

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