Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures

[Federal Register Volume 62, Number 44 (Thursday, March 6, 1997)]

[Rules and Regulations]

[Pages 10312-10395]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 97-5250]

[[Page 10311]]

_______________________________________________________________________

Part II

Department of Justice

_______________________________________________________________________

Immigration and Naturalization Service and Executve Office for

Immigration Review

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8 CFR Part 1, et al.

Inspection and Expedited Removal of Aliens; Detention and Removal of

Aliens; Conduct of Removal Proceedings; Asylum Procedures; Final Rule

Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules

and Regulations

[[Page 10312]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

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. 2071-97]

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.

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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 July

7, 1997.

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

[[Page 10313]]

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 Sec. 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 Sec. 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 Sec. 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.

[[Page 10314]]

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 Sec. 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 Sec. 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, Sec. 235.3(b)(1) (determination of inadmissibility) and

Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 10315]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 10316]]

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 the 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 Sec. 208.2(b)(1)(i)(C) and Sec. 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,

Sec. 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.

[[Page 10317]]

Persecution for Illegal Departure or Applying for Asylum

Several commenters objected to the proposed elimination of

Sec. 208.13(b)(2)(ii) and Sec. 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

Sec. 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 Sec. 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

Sec. 208.21 as Sec. 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 Secs. 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

[[Page 10318]]

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 Sec. 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

[[Page 10319]]

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 Sec. 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

Sec. 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

[[Page 10320]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 235.3(c). In addition, Sec. 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 Sec. 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

[[Page 10321]]

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

Sec. 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, Sec. 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 Secs. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 3.12 omitted disciplinary proceedings

under Sec. 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

Sec. 292.3 would not be necessary. The disciplinary proceedings

regulation, however, is still in progress. The interim

[[Page 10322]]

rule will therefore place the reference to disciplinary proceedings

pursuant to Sec. 292.3 back into Sec. 3.12.

One commenter claimed that Sec. 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 Sec. 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 Sec. 240.10 of the proposed

regulation does not cross-reference Sec. 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 Sec. 240.10 require the Service to determine whether the

alien is covered by Sec. 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 Sec. 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 Sec. 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 Sec. 242.14(c). Thus, this section has not been

changed in the interim rule.

Several commenters requested that Sec. 240.12(a) of the proposed

regulation include language that was in former Sec. 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 Sec. 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 Sec. 3.14(a) of the

regulation allowing for jurisdiction to vest and

[[Page 10323]]

proceedings to commence when a charging document is filed by the

Service or by a respondent. The commenters added that Sec. 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 Sec. 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 Sec. 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 Sec. 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

Sec. 242.25. These comments were previously addressed when the

regulation was published on August 24, 1995.

[[Page 10324]]

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

Sec. 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 Sec. 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

Sec. 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 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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

[[Page 10325]]

prohibit the Service from appealing a grant of voluntary departure on

the ground that the alien 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

Sec. 274a.12(c)(14).

Several commenters objected to the provision for revocation found

in Sec. 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 Sec. 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

Sec. 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 Sec. 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 immigration

judge within 30 days thereafter. Other commenters stated that these

provisions were confusing.

The regulation has not been changed substantively based on these

comments but has been revised to clarify the applicable time periods.

The revisions make it clear that in order to obtain voluntary departure

from an immigration judge under section 240B(a) of the Act, an alien

must request it prior to or at the master calendar hearing at which the

case is initially calendared for a merits hearing, which is not

necessarily the first master calendar hearing. This ensures that the

alien is not obligated to request voluntary departure at preliminary

stages of the process, before the case is ready to be scheduled for a

merits hearing. The Department believes that this allows sufficient

time for the alien to consider voluntary departure and other options

and to discuss them with counsel. If such requests cannot be resolved

at the master calendar hearing the immigration judge may take an

additional 30 day period in case he or she desires additional time to

consider the voluntary departure request or to complete the processing.

In the event that the alien decides only after the specified master

calendar hearing that he or she wishes to request voluntary departure,

such a request can still be made later, but requires the concurrence of

the Service under Sec. 240.26(b)(2). Finally, even without Service

concurrence, the immigration judge may grant voluntary departure under

section 240B(b) of the Act upon conclusion of the proceeding.

Several commenters objected to the language at

Sec. 240.26(b)(1)(iv) authorizing the grant of voluntary departure by

immigration judges pursuant to section 240B(a) of the Act only if the

alien waives appeal of all issues. The Department believes that

voluntary departure authorized by immigration judges prior to

completion of proceedings should be for the purpose of settling cases

in the interests of economy and justice. If an alien wishes to contest

any issues, the proper forum will be a merits hearing. Once a case

proceeds to a merits hearing and contested issues are settled,

voluntary departure remains a form of relief; however, it may be

authorized only pursuant to the provisions of section 240B(b) of the

Act for voluntary departure granted at the completion of removal

proceedings.

Several commenters wrote that the regulation should provide an

exemption for an alien who would otherwise have a removal order issued

against him or her for failing to depart when the alien, through no

fault of his own, has not obtained travel documents. The regulation

already provides, at Sec. 240.26(b)(3)(ii), that the Service in its

discretion may extend the period within which the alien must provide

such documentation. However, the provision for extension is

discretionary and not an entitlement. The alien in removal proceedings

bears the responsibility to demonstrate eligibility for any relief

requested. The alien is encouraged to work with the government of his

or her home country to obtain a valid passport or other travel

authorization if a travel document is necessary for return to that

country. Failure to obtain necessary travel documentation will leave

the Department no option but to enforce the alternate order of removal.

Several commenters pointed out that in a case involving an alien

who was previously granted voluntary departure and failed to depart,

the proposed regulation correctly reflects the statutory language that

such an alien is not eligible for voluntary departure or relief under

sections 240A, 245, 248, and 249 of the Act. The commenters pointed

out, however, that the proposed regulation fails to include the

statutory requirement that the alien must receive notice of the penalty

for failing to depart. The Department agrees with the commenters, and

will change the language in the interim rule to reflect the requirement

that a voluntary departure order permitting an alien to depart

voluntarily shall inform the alien of the penalties under section

240B(d) of the Act.

Sections 240B(a)(1) and 240B(b)(1)(C) of the statute bar aliens

deportable under section 237(a)(2)(A)(iii) of the Act from voluntary

departure. Because aliens entering without inspection are no longer

considered deportable, however, the statutory bar might be read as

allowing such aliens to obtain voluntary departure despite an

aggravated felony conviction. The statute would thus create the anomaly

of more favorable treatment for aggravated felons who enter without

inspection. The Department does not believe that Congress intended such

an anomaly. In any event, having become aware of the problem, the

Department now exercises its discretion to bar such aliens from

receiving this form of relief.

Finally, several commenters requested clarification regarding the

effect of a motion or appeal to the Immigration Court, BIA, or a

federal court on any period of voluntary departure already granted.

Since an alien granted voluntary departure prior to completion of

proceedings must concede removeability and agree to waive

[[Page 10326]]

pursuit of any alternative form of relief, no such appeal or motion

would be possible in this situation. Regarding post-hearing voluntary

departure, the Department considered several options, but has not

adopted any position or modified the interim rule. The Department has

identified three possible options: no tolling of any period of

voluntary departure; tolling the voluntary departure period for any

period that an appeal or motion is pending; or setting a brief, fixed

period of voluntary departure (for example, 10 days) after any appeal

or motion is resolved. The Department wishes to solicit additional

public comments on these or other possible approaches to this issue so

that it can be resolved when a final rule is promulgated.

Detention and Removal of Aliens Ordered Removed

This rule provides for the assumption of custody during the removal

period, allows detention beyond the period, and provides conditions for

discretionary release and supervision of aliens who cannot be removed

during the period.

Several commenters stated that the wording of the statute provides

for release of noncriminal aliens during the removal period and

suggested that the Service adopt a policy of allowing the alien to

remain at liberty during the 90-day removal period. One commenter

stated that the proposed rule is consistent with the language and

intent of IIRIRA and should be retained in the interim rule. The plain

language of the statute requires that an alien be held in custody

during the 90-day removal period and not be released. Accordingly, the

proposed language is retained in the interim rule.

Several commenters stated that the statute requires release on an

order of supervision after the expiration of the 90-day removal period.

One commenter stated that the proposed rule is consistent with the

language and intent of IIRIRA and should be retained in the interim

rule. Taken together, sections 241(a)(3) and (a)(6) of the Act provide

that any alien who is inadmissible or who is deportable on the grounds

enumerated in paragraph (a)(6) may be detained beyond the removal

period. Additionally, any alien who is a risk to the community or is

unlikely to appear for removal may be detained regardless of the charge

of inadmissibility or deportability. Accordingly, the proposed language

is retained in the interim rule.

Reinstatement of Removal Orders Against Aliens Illegally Reentering

Several commenters suggested that aliens caught illegally

reentering the United States after removal should be provided a hearing

before an immigration judge. They expressed concern that issues such as

identity and the propriety of the earlier removal order would not be

addressed. One commenter argued that new section 241(a)(5) of the Act

was not intended to be a substantive revision of former section 242(f)

of the Act, which also dealt with reinstatement of deportation orders,

but was merely taken from a bill proposing to recodify the Act without

substantive change. One commenter wrote in support of these provisions,

stating that they were consistent with the language and intent of

IIRIRA.

A review of the relevant statutory provisions reveals that a

substantive change was in fact effected in the transition from section

242(f) of the Act to section 241(a)(5) of the Act. Section 242(f) of

the Act provided only that the deportation order was to be reinstated

upon illegal entry. New section 241(a)(5) of the Act provides that the

removal order is reinstated from its original date, but adds the

provision ``and is not subject to being reopened or reviewed.''

The Service has taken steps to ensure the positive identification

of an alien apprehended and removed under this section. In

Sec. 241.8(a)(2), the regulation requires fingerprint identification

before an alien can be removed under section 241(a)(5) of the Act. In

cases where no fingerprints are available and the alien disputes that

he or she was previously removed, the alien will not be removed under

section 241(a)(5) of the Act. Because the process mandated by the

proposed rule adequately addresses the concerns expressed by the

commenters, this provision remains unchanged in the interim rule.

Detention and Removal of Stowaways

Section 241.11 implements section 305 of IIRIRA, defining the

responsibilities for stowaways and costs of detention in the new

section 241 of the Act. All stowaways are deemed to be inadmissible

under the Act and are not entitled to a hearing on admissibility. Those

with a credible fear of persecution may seek asylum in accordance with

8 CFR part 208 in special proceedings before an immigration judge. The

statute is very specific regarding most detention and removal

responsibilities of the carriers.

Several commenters stated that the regulations do not contain a

definition of stowaway. Since IIRIRA added a clear definition of

stowaway in section 101(a)(49) of the Act, the Department saw no need

to repeat the definition in the regulations. One commenter objected to

the 15-day detention period for asylum-seeking stowaways, for which the

owner of the vessel or aircraft bringing the stowaway is obligated for

the costs of detention. As this time frame is mandated by statute in

section 241(c)(3)(A)(ii)(III) of the Act, the Department is bound by

it.

One commenter suggested that the regulation clearly define the

situations where the Service should allow the carrier to remove, by

aircraft, a stowaway who arrived by vessel. The regulation at

Sec. 241.11(c)(1) has been amended to include general circumstances

where the Service might favorably consider such request. These

circumstances will also be more thoroughly addressed in the Inspector's

Field Manual.

One commenter stated that the regulations should define how the

Service will make a determination that the necessary travel documents

for the stowaway cannot be obtained, so as to shift the costs of the

stowaway's detention from the carrier to the Service, as stated in

section 241(c)(3)(A)(ii)(II) of the Act. The Department has not had

sufficient time to consider this issue and so will address it in the

final rule.

Adjustment of Status

Some commenters objected to the policy statement contained in the

proposed rule that amended Sec. 245.1(c)(8) and indicated that, as an

exercise of discretion, the Attorney General would not adjust the

status of arriving aliens ordered removed under section 235(b)(1) of

the Act or in proceedings under section 240 of the Act. Those

commenters believed that such a statement exceeded the Attorney

General's authority by eliminating an immigration benefit that has not

been eliminated by an act of Congress. Other commenters suggested that

the policy statement did not go far enough and that the policy should

be expanded to include all inadmissible aliens in section 240

proceedings, not just arriving aliens. In this interim rule, the

Department will maintain the position taken in the proposed rule. This

position promotes the Department's objective of taking steps to

preserve the integrity of the visa issuance process while preserving

the current additional avenue for review of discretionary denials of

adjustment applications filed by aliens present without inspection and

admission. The Department continues to believe this position is

[[Page 10327]]

consistent with the intent of Congress when it passed IIRIRA.

In response to the commenters who suggested this policy exceeded

the Attorney General's statutory authority, it is noted that section

245 of the Act clearly and unambiguously states that adjustment of

status is a discretionary decision, subject to such regulatory

limitations as the Attorney General may prescribe. The same commenters

stated that aliens who depart using an advance parole authorization and

whose applications are subsequently denied would no longer be able to

renew their adjustment application before an immigration judge.

However, the revisions to Sec. 245.2(a)(5)(ii) contained in the

proposed rule preserved this procedure.

Rescission of Adjustment of Status

The interim rule includes several changes to 8 CFR part 246 that

update obsolete references and bring the regulation into agreement with

the statute. References to special inquiry officer were updated to

refer to immigration judges. References to status of permanent

residence acquired through outdated sections of law, and any related

procedures for special report to Congress, were eliminated. In

Sec. 246.2, the provision that limited the rescission authority of the

district director to cases that had been adjusted under section 245 of

249 or the Act was expanded to include all types of adjustment, thereby

bringing the regulation into accord with the statute. In Sec. 246.6,

the requirements for immigration judges' decisions were changed to

comport with the requirements of immigration judges' decisions found in

Sec. 240.12. The reference to Form I-151 in Sec. 246.9 was removed

because Form I-151 is no longer a valid document.

Elimination of Mexican Border Visitor's Permit

The proposed rule eliminated the Form I-444, Mexican Border

Visitor's Permit, which is issued at land border ports-of-entry along

the United States/Mexico border to Mexican nationals traveling for more

than 72 hours but less than 30 days in duration or for more than 25

miles from the United States/Mexico border but within the five states

of Arizona, California, Nevada, New Mexico, or Texas. The elimination

was proposed because the Form I-444 does not have adequate security

features to deter counterfeiting, and provides no tracking or

enforcement benefits.

One commenter suggested that since the elimination of the Form I-

444 was not mandated by IIRIRA and represented a significant departure

from past procedure, it should be removed from this rule and proposed

in a separate rulemaking. The commenter specifically objected to the

elimination of the time and distance controls imposed on Mexican

nationals inherent in the issuance of the Form I-444. As stated in the

proposed rule, the Service has been unable to demonstrate that there is

any connection between the limits on travel by persons issued Forms I-

444 and immigration violations. Mexican nationals must undergo the same

interview process to obtain a Border Crossing Card (BCC) or

nonimmigrant visa as any other applicant from any other country. New

validity periods have been imposed in recent years on the BCC,

requiring periodic renewal. A Mexican national entering with a BCC

undergoes the same inspection process as any other applicant for

admission and must establish eligibility as a visitor for business or

pleasure upon each entry to the United States. Presently, Mexican

nationals who request entry at a Mexican land border port-of-entry to

travel more than 30 days or beyond the five-state area, and who

establish admissibility as a visitor, are issued Form I-94, Arrival/

Departure Record, and allowed to proceed anywhere in the United States

with no additional restrictions. Mexican BCC holders entering the

United States by air or via the Canadian land border are also admitted

with no restrictions. The elimination of the Form I-444 does not expand

the possible use of the BCC in any way; it merely standardizes the

entry documentation issued. The Department can see no reason to

continue to impose specific controls on Mexican nationals seeking

admission only at Mexican border ports-of-entry, and so accordingly

will retain in the interim rule the elimination of Form I-444 in favor

of more thoroughly documenting entry with Form I-94.

Visa Waiver Pilot Program (VWPP)

The provisions relating to the VWPP in 8 CFR part 217 were included

in the proposed rule primarily as part of the review intended to

streamline and eliminate duplication in Department regulations. In

addition, several changes were made to conform to new statutory

terminology and to include certain new procedures created as a result

of IIRIRA. One commenter expressed concern that there could be

confusion in Sec. 217.4 as to what constitutes fraudulent or

counterfeit documents and that aliens could be removed without the

opportunity for review by an immigration judge. The language in this

section was not changed from what has existed in the regulations for

years. Moreover, aliens applying under the VWPP are, by statute, not

entitled to a hearing before an immigration judge, except on the basis

of an asylum claim. The only change that the proposed rule made to this

provision was that the hearing provided for VWPP asylum claimants is

now more clearly limited to asylum issues only. In addition,

inadmissible VWPP applicants may be temporarily refused permission to

enter the United States, but are not subject to the formal expedited

removal provisions of section 235(b)(1) of the Act.

One commenter objected to several aspects of the amended language

in Sec. 217.6 relating to carrier agreements. Since most of the

language in this section is already contained on the Form I-775, Visa

Waiver Pilot Program Agreement, which is signed by all carriers

participating in the VWPP, much of this section has been removed from

the interim rule. The commenter objected to the elimination of due

process safeguards in allowing termination of agreements by the

Commissioner, with 5 days notice to the carrier, for failure to meet

the terms of the agreement. This is not a new provision. The exact

language has existed in the regulations since at least 1991 and has

also been part of the existing Form I-775 for years, and will be

retained. The definition of round (return) trip ticket has been revised

to conform with terminology used elsewhere in the regulation and

carrier agreement, and to provide for electronic ticketing technology.

Miscellaneous Changes

The proposed rule contemplated removing 8 CFR part 215, Controls of

Aliens Departing from the United States, because it was also contained

in the Department of State regulations. The Department has decided to

retain 8 CFR part 215.

The proposed rule contained Sec. 240.39, which retained material

previously found in Sec. 242.22, and Sec. 240.54, which preserved the

former Sec. 242.23. These sections have been removed from the interim

rule since the subjects are encompassed by Secs. 3.23 and 241.8,

respectively.

One commenter correctly noted that Sec. 216.5(e)(3)(ii) had been

amended to allow an alien in exclusion, deportation, or removal

proceedings to file a petition for waiver only until such time as there

is a final order of deportation or removal. In Sec. 216.5(e)(3),

adjudication of a waiver is based upon the alien's claim of having been

battered or subjected to extreme mental cruelty. The commenter stated

that there is no reason to shorten

[[Page 10328]]

the period allotted for a battered woman and child to file a battered

spouse waiver. The proposed rule change was meant to apply generally to

all aliens filing a petition for a waiver, and was intended to add a

point of finality to the time when the petition could be filed.

Therefore, the interim rule has been amended to clarify the general

applicability to all petitions for waiver. The regulation will permit

filing of a petition for waiver at any time prior to the second

anniversary of obtaining permanent resident status and up to the point

of receiving a final order in exclusion, deportation, or removal

proceedings, which includes any possible Federal court review.

Several commenters were concerned about removing language at

Sec. 204.2(a)(1)(iii)(A) through (C), which dealt with commencement and

termination of proceedings, and exemptions from the general prohibition

against approval of visa petitions filed on the basis of marriages

during proceedings. The language was removed as part of the Service's

streamlining initiative because it was duplicative of language in

Sec. 245.1(c)(8). The interim rule does clarify that in visa petition

proceedings the burden of proof remains on the petitioner to establish

eligibility for the exemption found at section 204(g) of the Act. In

addition, Sec. 204.2(a)(1)(iii) introductory text has been amended

reflecting that Sec. 245.1(c)(8) has been renumbered as

Sec. 245.1(c)(9).

Streamlining, Updating, and Reorganization

Several commenters expressed concern about sections of the

regulation that were identified in the Supplementary Information of the

proposed regulation as being revised solely for the purpose of

streamlining: elimination of unnecessary recitation of statutory

provisions; discussion of procedural matters; elimination of

duplication; or general updating. It is emphasized that these

streamlining changes neither created new requirements nor abolished any

existing ones. Similarly, several comments concerned regulatory

provisions that were simply carried over from the existing regulation,

but relocated to new sections in order to conform with the general

regulatory outline for the affected sections. Although the Department

reviewed these comments, none resulted in further amendments to the

streamlined or reorganized paragraphs. Other commenters proposed

changes to current regulations that are beyond the scope of this

rulemaking. These suggestions will be considered for inclusion in

separate regulations after implementation of IIRIRA.

The Department solicited comments on the general organization and

restructuring contained in the proposed regulation. No comments were

received on this topic. Accordingly, the organizational structure has

not been revised in the interim rule.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that the rule will not have a significant adverse

economic impact on a substantial number of small entities because of

the following factors. This rule affects only federal government

operations by codifying statutory amendments to the Immigration and

Nationality Act primarily regarding the examination, detention, and

removal of aliens from the United States. It affects only individuals

and does not impose any reporting or compliance requirements on small

entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Executive Order 12866

This rule is considered by the Department of Justice to be a

``significant regulatory action'' under Executive Order 12866, section

3(f), because it will have a significant economic impact on the federal

government in excess of $100 million. No economic impact is anticipated

for state and local governments. The Service projects significant

increases in detention-related costs due to the provisions of IIRIRA

that mandate the custody of criminal aliens who have committed two or

more crimes involving moral turpitude, aliens convicted of firearms

offenses, and aliens who have been convicted of an aggravated felony.

The type of crime that will qualify as an ``aggravated felony'' has

been greatly expanded under IIRIRA. In addition, all aliens, even non-

criminal aliens, who are subject to a final administrative order of

removal must be held in custody until the alien can be removed from the

United States. If the person is not removed within 90 days he or she

may be released from custody.

The Commissioner has notified Congress pursuant to section 303(b)

of IIRIRA that the Service lacks sufficient space to immediately

implement the mandatory custody provisions. This notification will

delay for 1-year full implementation of the new mandatory custody

provisions. Section 303(b) also provides for an additional 1-year delay

in implementation of the mandatory custody provisions upon a second

certification that space and personnel are inadequate to comply with

the requirement. The Service estimates that the cost to enforce the

requirement to detain all criminal aliens will be at least

$205,000,000. Of that total, personnel costs account for $65,284,000

and include detention and deportation officers ($32,873,000),

investigators ($25,501,000), legal proceedings personnel ($4,968,000),

and administrative support ($1,942,000). Non-personnel requirements are

projected to be at least $139,732,000 and includes increases in bed

space and related alien custody requirements ($82,782,000--funds 3,600

beds @ $63.00 per day), increases in alien travel expenses

($36,000,000--3,600 removals @ $1,000 each), and detention vehicle

expenses ($20,950,000). The Service is currently in the process of

projecting the costs of the IIRIRA requirement that we detain all

aliens with administratively final orders of deportation pending their

removal.

In addition to these detention related costs, the Service estimates

that the expenses for training employees on the provisions of the new

law and the regulations will be $2,977,500. The cost to the Service

related to additional forms or changes needed to current forms is

estimated to be $2,000,000 (until the final list of form requirements

is completed it is not possible to more accurately assess this cost).

Finally, the Department believes there may be some increases needed for

immigration judges to review credible fear determinations made under

section 235(b) of the Act.

The EOIR estimates increases in its costs related to IIRIRA-

mandated immigration judge review of credible fear determinations

(which must be made under stringent time frames) and the prompt

immigration judge review that IIRIRA requires of certain expedited

removal orders entered against aliens claiming to be, lawful permanent

residents, asylees, or refugees. Further, EOIR projects costs

associated with the possible need for an Immigration Court presence at

certain ports-of-entry and additional detention centers, which will

result from the above-mentioned

[[Page 10329]]

credible fear review and expedited removal review process. Also, there

will be costs related to the overall need for an increased Immigration

Court presence at existing Service detention centers to support the

processing of the additional detainees that will result from the

implementation of this rule. Similarly, EOIR anticipates a need for

construction of new Immigration Courts at new detention facilities the

Service may open as a result of this rule's implementation.

Although there are still a number of unknown variables which could

effect the total costs to EOIR to implement its part of the new

expedited removal process and to respond to the increased number of

detained individuals in proceedings under this rule, EOIR estimates

that the total annual cost for EOIR could be as high as $25,000,000. Of

that total, the cost for hiring new immigration judges and legal

support staff is projected to be $21,300,000. The cost for new video

and audio teleconferencing equipment is estimated at $3,000,000.

Training costs are expected to be approximately $400,000. Finally,

forms and other support requirements are estimated to cost $300,000.

Small Business Regulatory Enforcement Fairness Act of 1996

The Department of Justice considers this rule to be a ``major''

rule under the Small Business Regulatory Enforcement Fairness Act of

1996 in view of the projected expenditures for the federal government

as discussed in the preceding section. The Department finds good cause

to make this rule effective on April 1, 1997, in order to meet the

statutory deadline. These rules are essential for the implementation of

the provisions of Title III-A of IIRIRA, which become effective on that

date pursuant to Section 309(a) of IIRIRA.

Executive Order 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 12988

This interim rule meets the applicable standards set forth in

section 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

The information collection requirements contained in this rule have

been approved by the Office of Management and Budget under the

provisions of the Paperwork Reduction Act. The OMB control numbers for

these collections are contained in 8 CFR 299.5, Display of control

numbers.

List of Subjects

8 CFR Part 1

Administrative practice and procedure, Immigration.

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 204

Administrative practice and procedure, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 207

Administrative practice and procedure, Refugees, Reporting and

recordkeeping requirements.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 209

Aliens, Immigration, Refugees.

8 CFR Part 211

Immigration, Passports and visas, Reporting and recordkeeping

requirements.

8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 213

Immigration, Surety bonds.

8 CFR Part 214

Administrative practice and procedure, Aliens.

8 CFR Part 216

Administrative practice and procedure, Aliens.

8 CFR Part 217

Air carriers, Aliens, Maritime carriers, Passports and visas.

8 CFR Part 221

Aliens, Surety bonds.

8 CFR Part 223

Aliens, Reporting and recordkeeping requirements.

8 CFR Part 232

Aliens, Public health.

8 CFR Part 233

Administrative practice and procedure, Air carriers, Government

contracts, Travel.

8 CFR Part 234

Air carriers, Aircraft, Airports, Aliens.

8 CFR Part 235

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 237

Aliens.

8 CFR Part 238

Administrative practice and procedure, Aliens.

8 CFR Part 239

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 240

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 242

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 243

Administrative practice and procedure, Aliens.

8 CFR Part 244

Administrative practice and procedure, Aliens.

8 CFR Part 245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 246

Administrative practice and procedure, Aliens, Immigration.

[[Page 10330]]

8 CFR Part 248

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 249

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 251

Air carriers, Aliens, Crewmen, Maritime carriers, Reporting and

recordkeeping requirements.

8 CFR Part 252

Air carriers, Airmen, Aliens, Crewmen, Maritime carriers, Reporting

and recordkeeping requirements.

8 CFR Part 253

Air carriers, Airmen, Aliens, Maritime carriers, Reporting and

recordkeeping requirements, Seamen.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 286

Air carriers, Immigration, Reporting and recordkeeping

requirements.

8 CFR Part 287

Immigration, Law enforcement officers.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

8 CFR Part 316

Citizenship and naturalization, Reporting and recordkeeping

requirements.

8 CFR Part 318

Citizenship and naturalization.

8 CFR Part 329

Citizenship and naturalization, Military Personnel, Veterans.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 1--DEFINITIONS

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

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

2. Section 1.1 is amended by revising paragraph (l), and by adding

new paragraphs (q) through (t) to read as follows:

Sec. 1.1 Definitions.

* * * * *

(l) The term immigration judge means an attorney whom the Attorney

General appoints as an administrative judge within the Executive Office

for Immigration Review, qualified to conduct specified classes of

proceedings, including a hearing under section 240 of the Act. An

immigration judge shall be subject to such supervision and shall

perform such duties as the Attorney General shall prescribe, but shall

not be employed by the Immigration and Naturalization Service.

* * * * *

(q) The term arriving alien means an alien who seeks admission to

or transit through the United States, as provided in 8 CFR part 235, at

a port-of-entry, or an alien who is interdicted in international or

United States waters and brought into the United States by any means,

whether or not to a designated port-of-entry, and regardless of the

means of transport. An arriving alien remains such even if paroled

pursuant to section 212(d)(5) of the Act.

(r) The term respondent means a person named in a Notice to Appear

issued in accordance with section 239(a) of the Act, or in an Order to

Show Cause issued in accordance with Sec. 242.1 of this chapter as it

existed prior to April 1, 1997.

(s) The term Service counsel means any immigration officer assigned

to represent the Service in any proceeding before an immigration judge

or the Board of Immigration Appeals.

(t) The term aggravated felony means a crime (or a conspiracy or

attempt to commit a crime) described in section 101(a)(43) of the Act.

This definition is applicable to any proceeding, application, custody

determination, or adjudication pending on or after September 30, 1996,

but shall apply under section 276(b) of the Act only to violations of

section 276(a) of the Act occurring on or after that date.

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

3. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,

1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950; 3

CFR, 1949-1953 Comp., p. 1002.

4. Section 3.1 is amended by revising paragraphs (b)(1), (b)(2),

(b)(3), (b)(7), (b)(9), and (b)(10) to read as follows:

Sec. 3.1 General authorities.

* * * * *

(b) * * *

(1) Decisions of Immigration Judges in exclusion cases, as provided

in 8 CFR part 240, Subpart D.

(2) Decisions of Immigration Judges in deportation cases, as

provided in 8 CFR part 240, Subpart E, except that no appeal shall lie

seeking review of a length of a period of voluntary departure granted

by an Immigration Judge under section 244E of the Act as it existed

prior to April 1, 1997.

(3) Decisions of Immigration Judges in removal proceedings, as

provided in 8 CFR part 240, except that no appeal shall lie seeking

review of the length of a period of voluntary departure granted by an

immigration judge under section 240B of the Act or part 240 of this

chapter.

* * * * *

(7) Determinations relating to bond, parole, or detention of an

alien as provided in 8 CFR part 236, Subpart A and 8 CFR part 240,

Subpart E.

* * * * *

(9) Decisions of Immigration Judges in asylum proceedings pursuant

to Sec. 208.2(b) of this chapter.

(10) Decisions of Immigration Judges relating to Temporary

Protected Status as provided in 8 CFR part 244.

* * * * *

5. Section 3.2 is amended by:

a. Revising the section heading;

b. Revising paragraph (b)(2);

c. Revising paragraph (c)(2) and (c)(3), and by

d. Revising paragraphs (d) through (g)(1), to read as follows:

Sec. 3.2 Reopening or reconsideration before the Board of Immigration

Appeals.

* * * * *

(b) * * *

(2) A motion to reconsider a decision must be filed with the Board

within 30 days after the mailing of the Board decision or on or before

July 31, 1996, whichever is later. A party may file only one motion to

reconsider any given decision and may not seek reconsideration of a

decision denying a previous motion to reconsider. In removal

proceedings pursuant to section 240 of the Act, an alien may file only

one motion to reconsider a decision that the alien is removable from

the United States.

(c) * * *

(2) Except as provided in paragraph (c)(3) of this section, a party

may file only one motion to reopen deportation or exclusion proceedings

(whether before the Board or the Immigration Judge) and that motion

must be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be

reopened, or on or before September 30, 1996, whichever is later.

Except as provided in paragraph (c)(3)

[[Page 10331]]

of this section, an alien may file only one motion to reopen removal

proceedings (whether before the Board or the Immigration Judge) and

that motion must be filed no later than 90 days after the date on which

the final administrative decision was rendered in the proceeding sought

to be reopened.

(3) In removal proceedings pursuant to section 240 of the Act, the

time limitation set forth in paragraph (c)(2) of this section shall not

apply to a motion to reopen filed pursuant to the provisions of

Sec. 3.23(b)(4)(ii). The time and numerical limitations set forth in

paragraph (c)(2) of this section shall not apply to a motion to reopen

proceedings:

(i) Filed pursuant to the provisions of Sec. 3.23(b)(4)(iii)(A)(1)

or Sec. 3.23(b)(4)(iii)(A)(2);

(ii) To apply or reapply for asylum or withholding of deportation

based on changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered, if such evidence

is material and was not available and could not have been discovered or

presented at the previous hearing;

(iii) Agreed upon by all parties and jointly filed. Notwithstanding

such agreement, the parties may contest the issues in a reopened

proceeding; or

(iv) Filed by the Service in exclusion or deportation proceedings

when the basis of the motion is fraud in the original proceeding or a

crime that would support termination of asylum in accordance with

Sec. 208.22(f) of this chapter.

* * * * *

(d) Departure, deportation, or removal. A motion to reopen or a

motion to reconsider shall not be made by or on behalf of a person who

is the subject of exclusion, deportation, or removal proceedings

subsequent to his or her departure from the United States. Any

departure from the United States, including the deportation or removal

of a person who is the subject of exclusion, deportation, or removal

proceedings, occurring after the filing of a motion to reopen or a

motion to reconsider, shall constitute a withdrawal of such motion.

(e) Judicial proceedings. Motions to reopen or reconsider shall

state whether the validity of the exclusion, deportation, or removal

order has been or is the subject of any judicial proceeding and, if so,

the nature and date thereof, the court in which such proceeding took

place or is pending, and its result or status. In any case in which an

exclusion, deportation, or removal order is in effect, any motion to

reopen or reconsider such order shall include a statement by or on

behalf of the moving party declaring whether the subject of the order

is also the subject of any pending criminal proceeding under the Act,

and, if so, the current status of that proceeding. If a motion to

reopen or reconsider seeks discretionary relief, the motion shall

include a statement by or on behalf of the moving party declaring

whether the alien for whose relief the motion is being filed is subject

to any pending criminal prosecution and, if so, the nature and current

status of that prosecution.

(f) Stay of deportation. Except where a motion is filed pursuant to

the provisions of Secs. 3.23(b)(4)(ii) and 3.23(b)(4)(iii)(A), the

filing of a motion to reopen or a motion to reconsider shall not stay

the execution of any decision made in the case. Execution of such

decision shall proceed unless a stay of execution is specifically

granted by the Board, the Immigration Judge, or an authorized officer

of the Service.

(g) Filing procedures. (1) English language, entry of appearance,

and proof of service requirements. A motion and any submission made in

conjunction with a motion must be in English or accompanied by a

certified English translation. If the moving party, other than the

Service, is represented, Form EOIR-27, Notice of Entry of Appearance as

Attorney or Representative Before the Board, must be filed with the

motion. In all cases, the motion shall include proof of service on the

opposing party of the motion and all attachments. If the moving party

is not the Service, service of the motion shall be made upon the Office

of the District Counsel for the district in which the case was

completed before the Immigration Judge.

* * * * *

6. The following sentence is added to the end of Sec. 3.4:

Sec. 3.4 Withdrawal of appeal.

* * * Departure from the United States of a person who is the

subject of deportation or removal proceedings, except for arriving

aliens as defined in Sec. 1.1(q) of this chapter, subsequent to the

taking of an appeal, but prior to a decision thereon, shall constitute

a withdrawal of the appeal, and the initial decision in the case shall

be final to the same extent as though no appeal had been taken.

Subpart B--Immigration Court

7. In Part 3, the heading of Subpart B is revised as set forth

above.

8. Section 3.9 is revised to read as follows:

Sec. 3.9 Chief Immigration Judge.

The Chief Immigration Judge shall be responsible for the general

supervision, direction, and scheduling of the Immigration Judges in the

conduct of the various programs assigned to them. The Chief Immigration

Judge shall be assisted by Deputy Chief Immigration Judges and

Assistant Chief Immigration Judges in the performance of his or her

duties. These shall include, but are not limited to:

(a) Establishment of operational policies; and

(b) Evaluation of the performance of Immigration Courts, making

appropriate reports and inspections, and taking corrective action where

indicated.

9. Section 3.10 is revised to read as follows:

Sec. 3.10 Immigration Judges.

Immigration Judges, as defined in 8 CFR part 1, shall exercise the

powers and duties in this chapter regarding the conduct of exclusion,

deportation, removal, and asylum proceedings and such other proceedings

which the Attorney General may assign them to conduct.

10. Section 3.11 is revised to read as follows:

Sec. 3.11 Administrative control Immigration Courts.

An administrative control Immigration Court is one that creates and

maintains Records of Proceedings for Immigration Courts within an

assigned geographical area. All documents and correspondence pertaining

to a Record of Proceeding shall be filed with the Immigration Court

having administrative control over that Record of Proceeding and shall

not be filed with any other Immigration Court. A list of the

administrative control Immigration Courts with their assigned

geographical areas will be made available to the public at any

Immigration Court.

Subpart C--Immigration Court--Rules of Procedure

11. In part 3, the heading of Subpart C is revised as set forth

above.

12. Section 3.12 is amended by revising the last sentence, and

adding a new sentence at the end of the section, to read as follows:

Sec. 3.12 Scope of rules.

* * * Except where specifically stated, the rules in this subpart

apply to matters before Immigration Judges, including, but not limited

to, deportation, exclusion, removal, bond, rescission, departure

control, asylum proceedings, and disciplinary

[[Page 10332]]

proceedings under Sec. 292.3 of this chapter. The sole procedures for

review of credible fear determinations by Immigration Judges are

provided for in Sec. 3.42.

13. Section 3.13 is revised to read as follows:

Sec. 3.13 Definitions.

As used in this subpart:

Administrative control means custodial responsibility for the

Record of Proceeding as specified in Sec. 3.11.

Charging document means the written instrument which initiates a

proceeding before an Immigration Judge. For proceedings initiated prior

to April 1, 1997, these documents include an Order to Show Cause, a

Notice to Applicant for Admission Detained for Hearing before

Immigration Judge, and a Notice of Intention to Rescind and Request for

Hearing by Alien. For proceedings initiated after April 1, 1997, these

documents include a Notice to Appear, a Notice of Referral to

Immigration Judge, and a Notice of Intention to Rescind and Request for

Hearing by Alien.

Filing means the actual receipt of a document by the appropriate

Immigration Court.

Service means physically presenting or mailing a document to the

appropriate party or parties; except that an Order to Show Cause or

Notice of Deportation Hearing shall be served in person to the alien,

or by certified mail to the alien or the alien's attorney and a Notice

to Appear or Notice of Removal Hearing shall be served to the alien in

person, or if personal service is not practicable, shall be served by

regular mail to the alien or the alien's attorney of record.

14. Section Sec. 3.14 is amended by:

a. Revising paragraph (a), and by

b. Adding a new paragraph (c) to read as follows:

Sec. 3.14 Jurisdiction and commencement of proceedings.

(a) Jurisdiction vests, and proceedings before an Immigration Judge

commence, when a charging document is filed with the Immigration Court

by the Service. The charging document must include a certificate

showing service on the opposing party pursuant to Sec. 3.32 which

indicates the Immigration Court in which the charging document is

filed. However, no charging document is required to be filed with the

Immigration Court to commence bond proceedings pursuant to Secs. 3.19,

236.1(d) and 240.2(b) of this chapter.

* * * * *

(c) Immigration Judges have jurisdiction to administer the oath of

allegiance in administrative naturalization ceremonies conducted by the

Service in accordance with Sec. 337.2(b) of this chapter.

15. Section 3.15 is amended by:

a. Revising the section heading;

b. Amending paragraph (b) introductory text and paragraph (b)(6),

by adding the phrase ``and Notice to Appear'' immediately after the

phrase ``Order to Show Cause'';

c. Redesignating paragraph (c) as (d);

d. Adding a new paragraph (c); and by

e. Revising newly redesignated paragraph (d), to read as follows:

Sec. 3.15 Contents of the order to show cause and notice to appear and

notification of change of address.

* * * * *

(c) Contents of the Notice to Appear for Removal Proceedings. In

the Notice to Appear for removal proceedings, the Service shall provide

the following administrative information to the Immigration Court.

Failure to provide any of these items shall not be construed as

affording the alien any substantive or procedural rights.

(1) The alien's names and any known aliases;

(2) The alien's address;

(3) The alien's registration number, with any lead alien

registration number with which the alien is associated;

(4) The alien's alleged nationality and citizenship; and

(5) The language that the alien understands.

(d) Address and telephone number. (1) If the alien's address is not

provided on the Order to Show Cause or Notice to Appear, or if the

address on the Order to Show Cause or Notice to Appear is incorrect,

the alien must provide to the Immigration Court where the charging

document has been filed, within five days of service of that document,

a written notice of an address and telephone number at which the alien

can be contacted. The alien may satisfy this requirement by completing

and filing Form EOIR-33.

(2) Within five days of any change of address, the alien must

provide written notice of the change of address on Form EOIR-33 to the

Immigration Court where the charging document has been filed, or if

venue has been changed, to the Immigration Court to which venue has

been changed.

Sec. 3.16 [Amended]

16. Section 3.16(b) is amended by revising the term ``respondent/

applicant'' to read ``alien''.

Sec. 3.17 [Amended]

17. Section 3.17(a) is amended in the first sentence by revising

the term ``respondent/applicant'' to read ``alien'', and by revising

the phrase ``the appropriate EOIR form'' to read ``Form EOIR-28''.

18. Section 3.18 is revised to read as follows:

Sec. 3.18 Scheduling of cases.

(a) The Immigration Court shall be responsible for scheduling cases

and providing notice to the government and the alien of the time,

place, and date of hearings.

(b) In removal proceedings pursuant to section 240 of the Act, the

Service shall provide in the Notice to Appear, the time, place and date

of the initial removal hearing, where practicable. If that information

is not contained in the Notice to Appear, the Immigration Court shall

be responsible for scheduling the initial removal hearing and providing

notice to the government and the alien of the time, place, and date of

hearing. In the case of any change or postponement in the time and

place of such proceeding, the Immigration Court shall provide written

notice to the alien specifying the new time and place of the proceeding

and the consequences under section 240(b)(5) of the Act of failing,

except under exceptional circumstances as defined in section 240(e)(1)

of the Act, to attend such proceeding. No such notice shall be required

for an alien not in detention if the alien has failed to provide the

address required in section 239(a)(1)(F) of the Act.

Sec. 3.19 [Amended]

19. Section 3.19(a) is amended by revising the reference to ``part

242 of this chapter'' to read ``8 CFR part 236'' wherever it appears in

the paragraph.

20. Section 3.19(d) is amended in the first sentence by adding the

term ``or removal'' immediately after the word ``deportation''.

21. Section 3.19 is amended by removing paragraph (h).

22. In Sec. 3.20, paragraph (a) is revised to read as follows:

Sec. 3.20 Change of venue.

(a) Venue shall lie at the Immigration Court where jurisdiction

vests pursuant to Sec. 3.14.

* * * * *

23. Section 3.23 is amended by revising the section heading and

paragraph (b) to read as follows:

Sec. 3.23 Reopening or Reconsideration before the Immigration Court.

(a) * * *

(b) Before the Immigration Court. (1) In general. An Immigration

Judge may upon his or her own motion at any time, or upon motion of the

Service or the

[[Page 10333]]

alien, reopen or reconsider any case in which he or she has made a

decision, unless jurisdiction is vested with the Board of Immigration

Appeals. Subject to the exceptions in this paragraph and paragraph

(b)(4), a party may file only one motion to reconsider and one motion

to reopen proceedings. A motion to reconsider must be filed within 30

days of the date of entry of a final administrative order of removal,

deportation, or exclusion, or on or before July 31, 1996, whichever is

later. A motion to reopen must be filed within 90 days of the date of

entry of a final administrative order of removal, deportation, or

exclusion, or on or before September 30, 1996, whichever is later. A

motion to reopen or to reconsider shall not be made by or on behalf of

a person who is the subject of removal, deportation, or exclusion

proceedings subsequent to his or her departure from the United States.

Any departure from the United States, including the deportation or

removal of a person who is the subject of exclusion, deportation, or

removal proceedings, occurring after the filing of a motion to reopen

or a motion to reconsider shall constitute a withdrawal of such motion.

The time and numerical limitations set forth in this paragraph do not

apply to motions by the Service in removal proceedings pursuant to

section 240 of the Act. Nor shall such limitations apply to motions by

the Service in exclusion or deportation proceedings, when the basis of

the motion is fraud in the original proceeding or a crime that would

support termination of asylum in accordance with Sec. 208.22(f) of this

chapter.

(i) Form and contents of the motion. The motion shall be in writing

and signed by the affected party or the attorney or representative of

record, if any. The motion and any submission made in conjunction with

it must be in English or accompanied by a certified English

translation. Motions to reopen or reconsider shall state whether the

validity of the exclusion, deportation, or removal order has been or is

the subject of any judicial proceeding and, if so, the nature and date

thereof, the court in which such proceeding took place or is pending,

and its result or status. In any case in which an exclusion,

deportation, or removal order is in effect, any motion to reopen or

reconsider such order shall include a statement by or on behalf of the

moving party declaring whether the subject of the order is also the

subject of any pending criminal proceeding under the Act, and, if so,

the current status of that proceeding.

(ii) Filing. Motions to reopen or reconsider a decision of an

Immigration Judge must be filed with the Immigration Court having

administrative control over the Record of Proceeding. A motion to

reopen or a motion to reconsider shall include a certificate showing

service on the opposing party of the motion and all attachments. If the

moving party is not the Service, service of the motion shall be made

upon the Office of the District Counsel for the district in which the

case was completed. If the moving party, other than the Service, is

represented, a Form EOIR-28, Notice of Appearance as Attorney or

Representative Before an Immigration Judge must be filed with the

motion. The motion must be filed in duplicate with the Immigration

Court, accompanied by a fee receipt.

(iii) Assignment to an Immigration Judge. If the Immigration Judge

is unavailable or unable to adjudicate the motion to reopen or

reconsider, the Chief Immigration Judge or his or her delegate shall

reassign such motion to another Immigration Judge.

(iv) Replies to motions; decision. The Immigration Judge may set

and extend time limits for replies to motions to reopen or reconsider.

A motion shall be deemed unopposed unless timely response is made. The

decision to grant or deny a motion to reopen or a motion to reconsider

is within the discretion of the Immigration Judge.

(v) Stays. Except in cases involving in absentia orders, the filing

of a motion to reopen or a motion to reconsider shall not stay the

execution of any decision made in the case. Execution of such decision

shall proceed unless a stay of execution is specifically granted by the

Immigration Judge, the Board, or an authorized officer of the Service.

(2) Motion to reconsider. A motion to reconsider shall state the

reasons for the motion by specifying the errors of fact or law in the

Immigration Judge's prior decision and shall be supported by pertinent

authority. Such motion may not seek reconsideration of a decision

denying previous motion to reconsider.

(3) Motion to reopen. A motion to reopen proceedings shall state

the new facts that will be proven at a hearing to be held if the motion

is granted and shall be supported by affidavits and other evidentiary

material. Any motion to reopen for the purpose of acting on an

application for relief must be accompanied by the appropriate

application for relief and all supporting documents. A motion to reopen

will not be granted unless the Immigration Judge is satisfied that

evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing. A

motion to reopen for the purpose of providing the alien an opportunity

to apply for any form of discretionary relief will not be granted if it

appears that the alien's right to apply for such relief was fully

explained to him or her by the Immigration Judge and an opportunity to

apply therefore was afforded at the hearing, unless the relief is

sought on the basis of circumstances that have arisen subsequent to the

hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen

proceedings for consideration or further consideration of an

application for relief under section 240A(a) (cancellation of removal

for certain permanent residents) or 240A(b) (cancellation of removal

and adjustment of status for certain nonpermanent residents) may be

granted only if the alien demonstrates that he or she was statutorily

eligible for such relief prior to the service of a notice to appear, or

prior to the commission of an offense referred to in section 212(a)(2)

of the Act that renders the alien inadmissible or removable under

sections 237(a)(2) of the Act or (a)(4), whichever is earliest. The

Immigration Judge has discretion to deny a motion to reopen even if the

moving party has established a prima facie case for relief.

(4) Exceptions to filing deadlines.--(i) Asylum. The time and

numerical limitations set forth in paragraph (b)(1) of this section

shall not apply if the basis of the motion is to apply for relief under

section 208 or 241(b)(3) of the Act and is based on changed country

conditions arising in the country of nationality or the country to

which removal has been ordered, if such evidence is material and was

not available and could not have been discovered or presented at the

previous proceeding. The filing of a motion to reopen under this

section shall not automatically stay the removal of the alien. However,

the alien may request a stay and, if granted by the Immigration Judge,

the alien shall not be removed pending disposition of the motion by the

Immigration Judge. If the original asylum application was denied based

upon a finding that it was frivolous, then the alien is ineligible to

file either a mo

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