[Federal Register: May 9, 2002 (Volume 67, Number 90)]
[Proposed Rules]
[Page 31157-31164]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my02-14]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3, 236, 240, and 241
[INS No. 1847-97; AG Order No. 2579-2002]
RIN 1115-AE82
Requiring Aliens Ordered Removed from the United States To
Surrender To the Immigration and Naturalization Service for Removal
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Proposed rule.
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SUMMARY: This supplementary proposed rule would amend the regulations
of the Immigration and Naturalization Service (Service) and the
Executive Office for Immigration Review (EOIR) by requiring aliens
subject to a final order of removal to surrender themselves to the
Service. This rule also establishes procedures for surrender and
provides that aliens violating those procedures will be denied certain
discretionary immigration benefits.
DATES: Written comments must be submitted on or before June 10, 2002.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division (HQRFS), Immigration and Naturalization
Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure
proper handling please reference INS No. 1847-97 on your
correspondence. You may also submit comments electronically to the
Service at insregs@usdoj.gov. When submitting comments electronically
please include INS No. 1847-97 in the subject box. Comments are
available for public inspection at the above address by calling (202)
514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Lisa Batey, Office of the General
Counsel, Immigration and Naturalization Service, 425 I Street NW, Room
6100, Washington, DC 20536, telephone (503) 231-4049, or Cristina
Hamilton, Office of the General Counsel, at (202) 514-2895. For matters
relating to the Executive Office for Immigration Review: Chuck Adkins-
Blanch, General Counsel, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0470.
SUPPLEMENTARY INFORMATION:
I. Background
On September 4, 1998, the Department of Justice (Department)
published a proposed rule in the Federal Register at 63 FR 47205,
providing procedures that must be followed by an alien subject to a
final order of removal. After a careful review, the Department is
publishing a supplementary proposed rule on these issues. This rule is
substantially the same as that proposed by former Attorney General
Janet Reno, with some changes discussed herein. One principal change is
that the requirements of this rule will not be limited only to aliens
who are served with a Notice to Appear after the effective date of this
rule; such a limitation, as stated in the 1998 proposed rule, would
unnecessarily impair the effectiveness of this rule. Instead, this rule
provides that the requirements of this rule shall also be applied to
aliens who are currently in immigration proceedings, as long as they
receive the requisite notice. Moreover, this supplementary proposed
rule reflects a renumbering of the new regulatory provisions in light
of other new sections that the Service has added to 8 CFR part 241
after the proposed rule was published.
What Is the Purpose of This Supplementary Proposed Rule?
The purpose of this supplementary proposed rule is to establish
procedures requiring aliens who have received a final order of removal
to surrender to the Service for removal from the United
[[Page 31158]]
States. The rule establishes procedures for surrender and provides that
persons violating these procedures will be denied certain discretionary
immigration benefits. Section 241(a) of the Immigration and Nationality
Act (Act), as amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), generally requires the detention
and removal of aliens subject to a final order of removal within 90
days. Many aliens, however, are not in Service custody at the time the
order of removal becomes administratively final. In the past, fully
``89 percent of non-detained aliens with final orders of [removal]
failed to surrender for deportation when ordered to do so.'' 62 FR
48183 (Sept. 15, 1997) (background information relating to detention
under the Transition Period Custody Rules, citing to Report #I-96-03
issued in March 1996 by the Department's Office of the Inspector
General).
This rule would provide that an alien not detained at the time an
order of removal becomes final has an affirmative legal obligation to
surrender thereafter for removal, and would provide an incentive for
compliance by denying future discretionary relief for absconding aliens
who fail to comply.
Who Will Be Affected by This Rule When It Is Finalized?
This rule would apply to those aliens who receive notice at any
point in immigration proceedings of their duty to surrender following
any final order of exclusion, deportation, or removal, and of the
consequences of failing to surrender. Aliens placed in removal
proceedings after the effective date of any final rule based on this
regulation will be served written notice of the duty to surrender in
the Notice to Appear. Aliens who are already in proceedings on the
effective date of this rule when it is published as a final rule will
receive notice of the duty to surrender, and the consequences of
failure to surrender, by one of several methods, such as (1) from the
immigration judge, (2) from the Board of Immigration Appeals at the
time the Board issues a written order of removal, (3) from the district
director prior to any release from custody, or (4) in any other manner
whereby such written notice may be effectuated. In order to ensure that
aliens receive proper notice, this rule provides that such notice will
be provided at several points in the immigration enforcement process.
However, once notice is provided by any means, no other notice shall be
legally required.
How Would This Rule Affect Aliens With Final Removal Orders?
This supplementary proposed rule would apply to all aliens who
received the requisite notice under this rule, at any stage of the
immigration enforcement process, regarding the obligation to surrender
to the Service, and the consequences of failing to surrender when
required. Such aliens, if they are not within the custody of the
Service at the time, must surrender to the Service within 30 days of
the issuance of an administratively final order of removal by either an
immigration judge or the Board of Immigration Appeals. An alien who has
been granted voluntary departure is given an order of removal that
automatically becomes administratively final if the alien does not
depart under the grant of voluntary departure. If an alien does not
voluntarily depart he or she is also required to surrender to the
Service. Aliens granted voluntary departure must surrender for removal
on the first business day following the date the alternate order of
removal becomes effective. It is important to note that nothing in this
rule restricts the Service's authority to arrest and remove an alien
with a final order of removal at any time, unless a federal court has
stayed that final order.
The Service also notes that aliens subject to a final order of
removal are already obligated under section 241(a)(1)(C) of the Act and
8 CFR 241.4(g) to make application in good faith for travel documents,
and that any failure to undertake this and other affirmative
obligations tolls the removal period during which detention is
mandated. See 66 FR 56967 (Nov. 14, 2001).
Where Must the Alien Go To Surrender?
This supplementary proposed rule would require the alien to
surrender to the Detention and Removal Program of the Service district
office with jurisdiction over the place where the immigration judge
completed the removal proceeding. The Service may designate an
alternate location for surrender upon providing notice to the alien.
What Are the Consequences for an Alien Who Fails To Surrender as
Required?
This supplementary proposed rule provides that an alien who fails
to surrender, as required, will be denied discretionary relief from
removal by the Attorney General under sections 208(b) (asylum), 212(h)
(waiver of inadmissibility for criminal convictions), 212(i) (waiver of
inadmissibility for fraud), 240A (cancellation of removal), 240B
(voluntary departure), 245 (adjustment to status of a lawful permanent
resident), 248 (change of nonimmigrant status) and 249 (registry) of
the Act at any time while he or she remains in the United States, and
for a period of ten years after the alien's departure from the United
States. These consequences will apply to all aliens who fail to
surrender, when required, after having received the requisite notice
under this rule at any stage of the immigration enforcement process.
Entirely apart from the provisions of this rule, the Service notes
that any alien who fails to surrender when required may also be subject
to other sanctions under the existing laws, including criminal
prosecution under section 243 of the Act or civil penalties under
section 274D of the Act.
Can the Denial of Discretionary Relief Be Waived?
This supplementary proposed rule would provide the district
director with discretion to waive the denial of discretionary relief,
as provided under Sec. 241.17(c), if the alien demonstrates that the
failure to surrender was due to exceptional circumstances and that he
or she appeared as soon as possible thereafter as circumstances
allowed. This rule incorporates the statutory definition of exceptional
circumstances at section 240(e)(1) of the Act, which is narrow and does
not include ignorance of the law or reliance on advice of counsel or of
any other individual.
What Effect Would an Alien's Failure To Surrender Have on Motions To
Reopen or Reconsider Removal Proceedings?
Pursuant to the changes proposed by the Department, removal
proceedings would not be reopened in the case of an alien who failed to
surrender for removal unless the alien can demonstrate by clear and
convincing evidence both that the failure to surrender was due to
exceptional circumstances as defined in section 240(e)(1) of the Act,
and that he or she actually surrendered for removal as soon as possible
after the circumstances that prevented timely surrender had passed. Any
alien seeking to file a motion to reopen or reconsider must also
satisfy the legal and time requirements of Sec. 3.2, for cases before
the Board of Immigration Appeals, or Sec. 3.23, for cases before the
Immigration Court, as applicable.
[[Page 31159]]
Are There Any Other Requirements Under This Rule?
The amendments contained in this supplementary proposed rule would
prohibit an alien's release from Service custody unless the alien
agrees in writing or otherwise on the record to surrender for removal
in accordance with the rule. All aliens seeking voluntary departure are
also required to agree to surrender for removal as a condition to being
granted that form of relief if they fail to voluntarily depart.
Did the Department Receive Comments on the Proposed Rule?
The Department set a 60-day public comment period that ended on
November 3, 1998. The Department received four public comments on the
proposed rule. The following is a discussion of those comments and the
Department's response.
Discussion of Comments and Changes From the Proposed Rule
Length of Surrender Period
Two commenters raised concerns with the length of the proposed 10-
day surrender period. One commenter suggested that 10 days is an
insufficient period of time for an alien who has moved away to report
to the Service district office with jurisdiction over the location
where the removal proceedings were completed. The other commenter
pointed out that decisions from the Board of Immigration Appeals do not
always arrive within 10 days of the date of the order, thus making it
impossible for an alien to report within the proposed 10-day surrender
period as required by the regulation. The commenter suggested that a
30-day period to ensure sufficient mailing time would be more
appropriate.
The Department has carefully considered these concerns, and has
amended this supplementary proposed rule to provide for a 30-day
surrender period.
Location for Surrender
One commenter indicated a concern with the requirement under
Sec. 241.13 of the proposed rule (now renumbered as Sec. 241.16) that
the alien must surrender to the Service district office with
jurisdiction over the location where removal proceedings were
completed. The commenter proposed that aliens be allowed to surrender
to any Service district office. In contrast, another comment, signed by
seven surety companies, objected to the suggestion that the Service
could change the location for surrender, as this could impose
additional compliance costs on the surety provider.
The recommendation to allow aliens to surrender to any Service
district office has some merit, but is not easily reconciled with
logistical considerations, the obligation to make most efficient use of
Service resources, and the expectations of surety providers. The
designated district office will have the alien's file and the necessary
documentation for his or her removal. The designated office will also
be prepared to house the alien pending removal, or make arrangements as
needed. For these reasons, the Department has retained in these rules
the requirement to surrender at the designated district office, but has
made allowance in the rule under appropriate circumstances for the
district director, in his or her discretion, to agree to an alternate
site.
Tolling of the Surrender Period for Federal Court Review
One commenter questioned why the surrender period is tolled pending
an appeal to the Board of Immigration Appeals, but not pending a
petition for review in federal court. The answer has to do with the
administrative finality of the order. An order of removal on appeal to
the Board of Immigration Appeals is not a final administrative order.
Execution of the order is automatically stayed pending disposition of
the appeal.
The filing of a petition for review in federal court, on the other
hand, does not result in an automatic stay of the removal order. The
alien must specifically request a stay of removal. See Fed. R. App. P.
18. The alien must also notify the Service that such a stay is being
sought. Should a stay be granted, the order cannot be executed and the
duty to surrender is suspended. Likewise, if a stay is ordered pending
a motion to reopen, the order cannot be executed and the duty to
surrender is suspended. The alien's duty to surrender to the Service
within 30 days begins anew on the day the stay is lifted.
Denial of Discretionary Relief
One commenter opposed the inclusion of sections 208, 212(h), and
212(i) of the Act as forms of relief from removal that the Attorney
General will deny, as a matter of discretion, to aliens who fail to
surrender as required. Sections 240(b)(7) and 240B(d) of the Act bar an
alien who fails to appear for proceedings or who fails to depart
pursuant to a voluntary departure order from any further relief under
sections 240A, 240B, 245, 248, and 249 of the Act for a period of 10
years. The commenter argues that including discretionary denials of
relief under the three additional provisions is not permitted by the
statute, nor is the discretionary denial of asylum consistent with
treaty obligations and Congressional intent.
The Department reiterates its position that denying discretionary
forms of relief to those aliens who disobey the law by failing to
surrender is a rational exercise of the Attorney General's discretion,
and a regulatory provision reflecting that result is a proper means for
the Attorney General to exercise that discretion. The Supreme Court has
recognized that an agency head ``has the authority to rely on
rulemaking to resolve certain issues of general applicability unless
Congress clearly expresses an intent to withhold that authority.''
Lopez v. Davis, 531 U.S. 230, 244 (2001), quoting American Hospital
Assn. v. NLRB, 499 U.S. 606, 612 (1991); see also, Yang v. INS, 79 F.3d
932, 936 (9th Cir. 1996). Moreover, sections 212(h) and 212(i) of the
Act are waiver provisions, not independent forms of relief, and as such
would be unavailable to any alien who was denied the other forms of
relief.
Even prior to this supplementary proposed rule, case law has
established that an alien who fails to report to the Service following
notification that his or her deportation has been scheduled does not
merit the favorable exercise of discretion required for reopening
deportation proceedings. See, e.g., Matter of Barocio, 19 I.&N. Dec.
255, 258 (BIA 1985); see also Sequeira-Solano v. INS, 104 F.3d 278, 279
(9th Cir. 1997) (``The BIA correctly found that Sequeira-Solano [by
failing to surrender] had put himself in defiance of our immigration
laws and therefore concluded that his [motion] for reopening [to apply
for suspension of deportation] did not merit favorable
consideration.''); Zapon v. Dep't of Justice, 53 F.3d 283, 285 (9th
Cir. 1995) (United States was ``substantially justified'' in opposing
fugitives' efforts to obtain a stay of deportation, supporting the
denial of their application for award of attorneys fees under Equal
Access to Justice Act); Bar-Levy v. Dep't of Justice, 990 F.2d 33, 35
(2d Cir. 1993) (``An alien who is a fugitive from a deportation order
should thus not be permitted to pursue an appeal of the deportation
order or a denial of his application for a waiver of deportation.''),
following Arana v. INS, 673 F.2d 75, 77 (3d Cir. 1982) (per curiam).
The obligation to surrender for removal is not a new one, and
failure to comply with this obligation is a
[[Page 31160]]
significant flaunting of U.S. law for which the denial of all
discretionary relief--including asylum--is an appropriate response.
Nothing in this rule affects an alien's eligibility for withholding of
deportation, when required by law.
District Director's Discretion
Two commenters raised questions regarding Sec. 241.15(c) (now
renumbered as Sec. 241.18(c)) of the proposed rule. One commenter
suggested that it was unclear exactly as to the scope of the
consequences of failing to surrender in this section. The section has
been amended to clarify that the consequences of failing to surrender,
after having received notice of the duty to surrender, can be found in
Sec. 241.18(c). The other commenter appeared to be concerned with the
fact that this section provides that the decision to waive the denial
of relief is left to the sole discretion of the district director. The
commenter argued that ``a regulation cannot dictate what is the
adjudicator's 'sole and unreviewable discretion.'''
The Supreme Court has upheld an agency's ability to utilize
regulations as an exercise of discretionary authority. See, e.g., Lopez
v. Davis, 531 U.S. 230, 244 (2001). In this case, however, proposed
Sec. 241.18(c) does not dictate precisely how the district director
must exercise his or her discretion. It simply provides that the
discretionary decision to waive the consequences under Sec. 241.18(c)
of the alien's failure to surrender is to be made by the district
director, if the alien demonstrates that his or her failure to
surrender was a result of exceptional circumstances as defined in
section 240(e)(1) of the Act and that the alien surrendered himself or
herself to the Service as soon as those exceptional circumstances
ceased to exist.
Retroactive Effect
One commenter remarked that the prospective nature of the rule was
not stated in the proposed rule. Rulemaking is presumed to be
prospective in nature, and a clear statement is required only if the
rule is intended to have retroactive application. Nonetheless, in the
interest of clarity, the notice provisions of Sec. 241.17 specify that
the denial of discretionary relief for failure to surrender, as
provided in Sec. 241.18(c), will be invoked only where the alien had
received written notice of the surrender obligation and the
consequences under Sec. 241.18(c) of failure to surrender.
Bonds
Three of the four comments were submitted by surety companies who
post immigration bonds, or their representatives. These commenters
strongly criticized the proposed rule, contending that the proposals
violate the spirit, intent, and express wording of the June 22, 1995
settlement agreement in the case of Amwest Surety Insurance Co. v.
Reno, Civil No. 93-2356 JSL (Shx) (C.D. Cal.). In that agreement, the
Service agreed to send notice of the date and time to report for
deportation to the bond obligor at least 3 days prior to sending such
notice to the alien. While the settlement agreement applied only to
bonds underwritten by the plaintiffs, the Service as a matter of policy
decided to apply the terms of the settlement agreement to all other
companies underwriting immigration bonds.
The Department has carefully considered the effects of that policy
and has determined that the policy should be modified for all bonds
posted after the effective date of this rule.
The commenters assert that, by equating the final order of removal
to the notice to surrender and mailing it directly to the alien, the
proposed rule would deprive the obligor of its contractual right to
advance notice. The commenters further argue that the proposed rule
would deprive the obligor of its ability to surrender the alien for
removal as the obligor would only be notified to surrender the alien
for removal only after he or she has failed to surrender as required.
By that time, the administrative penalties, civil fines, and criminal
consequences have all attached. No alien, according to the commenters,
will be willing to surrender at that point.
The commenters assert that the proposed rule is an improper attempt
by the Department to extend the 90-day removal period by labeling an
alien who fails to surrender as a ``fugitive from justice,'' thus
subject to continued detention. The commenters also argue that
Sec. 241.13(h) of the proposed rule (now renumbered as Sec. 241.16(j)),
which allows the Service to unilaterally alter the surrender terms,
e.g., designate an alternate surrender location, could unlawfully
increase the risks or duties of the obligor under the contract it
executes with the alien.
The Department is cognizant of its contractual duties and has
carefully considered the points raised in these comments. The
Department will abide by the settlement agreement with regard to all
bond contracts entered into prior to the effective date of the final
rule. The Service will continue to send form I-340, Notice to Obligor
to Produce Alien, as agreed in the settlement agreement, to sureties of
any bond posted prior to the effective date of this rule when it is
published as a final rule.
However, the settlement agreement was based upon the Act as it
existed prior to the passage of the IIRIRA, which mandated detention of
certain aliens during the post-order removal period. The settlement
agreement has been affected by IIRIRA, and more recently by judicial
decisions such as Zadvydas v. Davis, 533 U.S. 678 (2001), and the
resulting changes in regulations published at 66 FR 56967 (Nov. 14,
2001) (codified at Secs. 241.4, 241.13 and 241.14). These changes in
the legal landscape necessitate revision to the way the Service handles
bonds.
Revisiting the bond contract and procedures is also necessary to
ensure the efficient use of Service resources, particularly with the
growing removal caseload and competing government priorities after the
events of September 11, 2001. Moreover, technological advances, such as
the availability of information on the status of cases from EOIR's
automated information line, 1-800-898-7180, make it reasonable to
expect that surety companies monitor the surrender obligations of their
clients in new cases.
In response to the concerns of the surety companies, this
supplementary proposed rule would extend the surrender period to 30
days. The Department is in the process of revising form I-352,
Immigration Bond, to more accurately reflect the current legal and
procedural requirements and this supplementary proposed 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 this rule will not have a significant economic
impact on a substantial number of small entities because it affects the
legal obligations of individual aliens ordered removed from the United
States, not small entities. Although this rule will have an impact on
surety companies by altering the terms of future bond contracts, the
impact and number of surety companies affected will not be substantial.
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
[[Page 31161]]
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996 (5 U.S.C. 804(2)). This rule will
not result in an annual effect on the economy of $100 million or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
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), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 13132
This rule 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 section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
Paperwork Reduction Act
This rule requires a revision to an existing information collection
(Form I-352). This revision will be submitted to the Office of
Management and Budget (OMB) for review and approval in accordance with
the Paperwork Reduction Act.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Aliens, Immigration,
Organization and functions (Government agencies).
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 240
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
Accordingly chapter I of title 8 of the Code of Federal Regulations
is proposed to be amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1231, 1252
note, 1252b, 1253, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2,
Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section
203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510
of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub.
L. 106-554, 114 Stat. 2763A-326 to -328.
2. Section 3.1 is amended by adding one sentence at the end of
paragraph (f) to read as follows:
Sec. 3.1 General authorities.
* * * * *
(f) * * * The decision shall include notice of the duty to
surrender and the consequences of failure to surrender when required,
in accordance with Secs. 241.16 through 241.19 of this chapter.
* * * * *
3. Section 3.2 is amended by adding paragraph (c)(5) to read as
follows:
Sec. 3.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(c) * * *
(5) (i) Notwithstanding the limitations of paragraph (c)(1) of this
section, a motion to reopen removal proceedings will not be granted in
the case of an alien who failed to surrender for removal in accordance
with Sec. 241.16 of this chapter, unless:
(A) The district director waived the consequences under
Sec. 241.18(c) for failing to surrender for removal in accordance with
Sec. 241.18(c)(2) of this chapter; or
(B) The alien presents documentary evidence that demonstrates, by
clear and convincing evidence, that:
(1) The failure to surrender for removal was due to exceptional
circumstances as defined in section 240(e)(1) of the Act; and
(2) The alien surrendered for removal as soon as possible after the
circumstances that prevented a timely surrender had passed.
(ii) Nothing in paragraph (c)(5)(i)(B) of this section may be
construed as providing the right to reopen a proceeding solely to
consider whether an alien complied with the duty to surrender for
removal, or whether exceptional circumstances excuse the alien's
failure to do so.
* * * * *
4. Section 3.23 is amended by adding paragraph (b)(5) to read as
follows:
Sec. 3.23 Reopening or reconsideration before the Immigration Court.
* * * * *
(b) * * *
(5) Failure to surrender for removal. (i) Notwithstanding the
requirements of paragraph (b)(1) of this section, a motion to reopen or
reconsider will not be granted in the case of an alien who failed to
surrender for removal in accordance with Sec. 241.16 of this chapter,
unless:
(A) The district director waived the consequences under
Sec. 241.18(c) for failing to surrender for removal, in accordance with
Sec. 241.18(c)(2) of this chapter; or
(B) The alien presents documentary evidence that demonstrates, by
clear and convincing evidence, that:
(1) The failure to surrender for removal was due to exceptional
circumstances as defined in section 240(e)(1) of the Act; and
(2) The alien surrendered for removal as soon as possible after the
circumstances that prevented a timely surrender had passed.
(ii) Nothing in paragraph (b)(5)(i)(B) of this section may be
construed as providing the right to reopen a proceeding solely to
consider whether an alien complied with the duty to surrender for
removal, or whether exceptional circumstances excuse the alien's
failure to do so.
5. Section 3.37 is amended by adding a new paragraph (c) to read as
follows:
Sec. 3.37 Decisions.
* * * * *
(c) All oral and written decisions of the Immigration Judge will
include notice of the duty to surrender and the consequences of failure
to surrender, when required, in accordance with Secs. 241.16 through
241.19 of this chapter.
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
6. The authority citation for part 236 continues to read as
follows:
[[Page 31162]]
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224,
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part
2.
7. Section 236.1 is amended by adding one sentence at the end of
paragraph (c)(1)(i) to read as follows:
Sec. 236.1 Apprehension, custody, and detention.
* * * * *
(c) * * *
(1) * * *
(i) * * * No alien may be released from custody unless the alien
agrees in writing or otherwise on the record to surrender for removal
in accordance with Sec. 241.16 of this chapter should the alien become
subject to a final order of removal, and the alien has been advised of
the consequences under Sec. 241.18(c) of failure to surrender when
required, in accordance with Secs. 241.16 through 241.19 of this
chapter.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
8. The authority citation for part 240 is revised to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1231, 1251, 1252 note, 1252a, 1252b, 1253, 1362; secs. 202 and 203,
Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277
(112 Stat. 2681); 8 CFR part 2.
9. Section 240.26 is amended by adding one sentence at the end of
paragraph (a), to read as follows:
Sec. 240.26 Voluntary departure--authority of the Executive Office for
Immigration Review.
(a) * * * In addition, no alien may be granted voluntary departure
unless the alien agrees in writing or otherwise on the record to
surrender for removal in accordance with Sec. 241.16 of this chapter if
the alien fails to depart voluntarily within the time allowed, and the
alien has been advised of the consequences under Sec. 241.18(c) of
failure to surrender when required, in accordance with Secs. 241.16
through 241.19 of this chapter.
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
10. The authority citation for part 241 is revised to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103. 1182, 1223,
1224, 1225, 1226, 1227, 1231, 1253, 1255, 1330, 1362; 18 U.S.C.
4002, 4013(c)(4); sec. 303(b) of Div. C of Pub. L. 102-208; 8 CFR
part 2.
11. In part 241, subpart A, add Sec. 241.16 to read as follows:
Sec. 241.16 Duty to surrender.
(a) In general. An alien subject to a final order of removal shall
be taken into custody by the Service and removed. If not in the custody
of the Service, however, an alien subject to a final order of removal
issued in proceedings and who has received notice of the duty to
surrender as set forth in Sec. 241.17 must surrender for removal as
provided in this section. Such surrender must be made during regular
business hours to the Detention and Removal Program of the Service
district office with jurisdiction over the place where the immigration
judge completed the removal proceeding. Nothing in this part shall be
construed as limiting the Service's authority to enforce a final order
of removal at any time.
(b) Final order by an immigration judge--(1) Aliens waiving appeal
and aliens ordered removed in absentia. Any alien who, upon issuance of
the order of removal by an immigration judge, waives appeal of the
order, and any alien who is ordered removed in absentia, must surrender
for removal within 30 calendar days of the date of the order.
(2) Aliens reserving appeal. Any alien who, upon issuance of the
order of removal by an immigration judge, reserves appeal, must
surrender for removal within 30 calendar days of the date when the
appeal period expires, unless he or she files a timely appeal, or
within 30 calendar days of the date of any subsequent waiver or
withdrawal of the appeal.
(c) Final order by the Board of Immigration Appeals. Any alien who
becomes subject to an order of removal, or an order dismissing an
appeal from an order of removal, issued by the Board of Immigration
Appeals must surrender for removal within 30 calendar days of the date
of the Board's order.
(d) Voluntary departure. Notwithstanding paragraphs (b) and (c) of
this section, any alien granted voluntary departure who becomes subject
to an alternate order of removal due to failure to depart as directed,
failure to pay a bond in connection with voluntary departure, or
failure to comply with any other required condition or term in
connection with voluntary departure, must surrender for removal on the
next business day following such a failure.
(e) Aliens in custody. (1) Any alien who becomes subject to a final
order of removal while in Service custody is thereby relieved of the
duty to surrender for removal under this section.
(2) Any alien who becomes subject to a final order of removal while
incarcerated in a local, State, or Federal facility must surrender for
removal within 30 calendar days of the alien's release from that
facility, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the
alien may be arrested or imprisoned again for the same offense, unless
the alien is detained by the Service at the time he or she is released.
If the Service detains the alien at the time of release from a local,
State, or Federal facility, the alien is thereby relieved of the duty
to surrender for removal pursuant to this section.
(f) Other orders of removal. Any alien who is ordered removed,
other than by an immigration judge or the Board of Immigration Appeals,
must surrender for removal to the Service district office with
jurisdiction over the place where the alien was ordered removed within
30 calendar days of the date that the order becomes final.
(g) Requests for relief subsequent to final order of removal. An
application for discretionary or other relief, including a motion to
reopen, submitted to the Service, an immigration judge, or the Board of
Immigration Appeals, by an alien who is the subject of a final order of
removal, will have no effect on an alien's duty to surrender, unless
the alien presents, prior to the expiration of the period to surrender,
a written decision granting the requested relief. A request for
modification of the surrender terms submitted by an alien to the
Service will have no effect on an alien's duty to surrender, unless the
alien presents, prior to the expiration of the period to surrender, a
written response granting the requested relief.
(h) Stay pending federal court review. Filing of a petition for
federal court review or a writ of habeas corpus with respect to an
administratively final removal order will have no effect on an alien's
duty to surrender for removal. If the federal court issues a stay of
the removal order pending review, the alien's duty to surrender will
also be suspended for the duration of the stay. The 30-day period for
surrender will begin again on the day that the federal court stay is
lifted.
(i) Weekends and holidays. If the last permissible day to surrender
for removal falls on a Saturday, Sunday, Federal holiday, or other day
when the Service office designated for surrender is closed, the alien
must surrender for removal on the first business day thereafter.
[[Page 31163]]
(j) Alternative surrender terms. Nothing in this part may be
construed as limiting the Service's authority, in its sole and
unreviewable discretion, to impose surrender requirements in addition
to or varying from those generally applicable under this section.
Changes to the surrender requirements may be made by mutual consent of
the parties or, if without the alien's consent, the Service shall
notify the alien in person or by regular mail at the last address given
to the Service by the alien. This notice requirement shall not affect
the Service's ability to arrest and remove an alien described in
section 241(a) of the Act at any time.
12. In part 241, subpart A, add Sec. 241.17 to read as follows:
Sec. 241.17 Notice of duty to surrender.
(a) Notice to Appear. As of the effective date when this rule is
published as a final rule, the Notice to Appear, Form I-862, will
contain written notice of the duty to surrender after the issuance of a
final order of removal and the consequences of failure to surrender
when required.
(a) Immigration judge. (1) The immigration judge will inform the
alien orally or in writing that, if the alien fails to appear for a
hearing, and thereby becomes subject to a final order of removal, the
alien will be required to surrender for removal and the consequences of
failure to surrender when required.
(2) In any case in which an immigration judge renders a decision,
whether or not adverse to the alien, the immigration judge will inform
the alien orally or in writing of the duty to surrender for removal and
the location to which the alien must surrender in the event that the
alien becomes subject to a final order of removal, and the consequences
of failure to surrender when required.
(c) Board of Immigration Appeals. Orders of removal and orders
dismissing an appeal from an order of removal issued by the Board of
Immigration Appeals will be accompanied by written notice of the duty
to surrender for removal, and the consequences of failure to surrender
when required.
(d) Upon release from custody. As a condition of release from
custody, whether under terms directed by the Service or subsequent to
redetermination by an immigration judge or the Board of Immigration
Appeals, the alien released must agree in writing or otherwise on the
record to surrender for removal if the alien becomes subject to a final
order of removal. No alien will be released from custody without
agreeing to surrender for removal as required by this part.
(e) Upon grant of voluntary departure. No alien may be granted
voluntary departure, whether by an immigration judge or the Board of
Immigration Appeals, unless the alien agrees in writing or otherwise on
the record to surrender for removal as provided under Sec. 241.16(c),
should the alien become subject to an alternate order of removal due to
failure to depart as directed, failure to pay a bond in connection with
voluntary departure, or failure to comply with any other required
condition or term in connection with voluntary departure.
(f) Effectuating notice of duty to surrender. An alien will be on
notice of the provisions of this section, including penalties for
failure to surrender, upon service of any written notice that the alien
has a duty to surrender. Aliens placed in proceedings after the
effective date when this rule is published as a final rule will be
served written notice of the duty to surrender in the Notice to Appear
pursuant to section 239(a)(1) of the Act. Aliens who have been served
with a Notice to Appear prior to the effective date when this rule is
published as a final rule will be served with written notice in one of
the ways described in paragraphs (b) through (e) of this section or in
any other manner whereby such written notice may be effectuated.
Service of the written notice will be accomplished either by hand-
delivery or by mailing to the alien's last-known address as reported by
the alien to the Service or EOIR. Once notice is served as described in
this section, no other notice is required, even though the alien may
receive more than one notice from the Service and EOIR. If the address
of the Service district office to which the alien is required to
surrender changes subsequent to issuance of notice under this section,
it is the alien's duty to determine the new address and surrender to
that location.
13. In part 241, subpart A, add Sec. 241.18 to read as follows:
Sec. 241.18 Consequences of failure to surrender for removal;
exception; waiver.
(a) Liability. An alien who fails to surrender for removal as
required by this part, and remains in the United States in violation of
law:
(1) Is subject to criminal prosecution under section 243 of the
Act; and
(2) Is subject to civil penalties under section 274D of the Act.
(b) Consent to reapply. The fact that the alien failed to surrender
for removal as required by this part shall be a serious adverse factor
when considering a subsequent application for consent to reapply for
admission to the United States.
(c) Denial of discretionary relief. An alien who fails to surrender
for removal as required by this part, and remains in the United States
in violation of law, after having received notice of the duty to
surrender as provided in Sec. 241.17, will be denied discretionary
relief under sections 208(b), 212(h), 212(i), 240A, 240B, 245, 248, and
249 of the Act while the alien remains in the United States, and for a
period of 10 years after the alien's departure or removal.
(1) Exception. An alien who fails to surrender for removal as
required by this part may be granted the relief specified in this
paragraph (c) for which the alien is otherwise eligible, if the
underlying proceeding was reopened by the Board of Immigration Appeals
in accordance with Sec. 3.2(c)(5) of this chapter or an immigration
judge in accordance with Sec. 3.23(b)(5) of this chapter, provided that
the alien does not again fail to surrender for removal subsequent to
reopening of the underlying proceeding.
(2) Waiver. The consequences of failing to surrender specified in
this paragraph (c) may be waived in the sole and unreviewable
discretion of the district director, if the alien surrenders for
removal as soon as possible thereafter, and at that time presents
documentary evidence that demonstrates, by clear and convincing
evidence, that the failure to surrender was due to exceptional
circumstances as defined in section 240(e)(1) of the Act. Exceptional
circumstances do not include reliance on advice of counsel or any other
individual, and no waiver is available based on such reliance.
14. In part 241, subpart A, add Sec. 241.19 to read as follows:
Sec. 241.19 Construction.
(a) Order of removal. For purposes of Sec. 241.16, Sec. 241.17, and
Sec. 241.18, the term ``order of removal'' shall apply to orders issued
pursuant to the Act as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Public Law 104-208, including,
but not limited to, section 309 therein.
(b) Detainers. Nothing in this part may be construed to relieve
local, State, or Federal authorities from complying with the terms of a
lawfully issued Service detainer.
(c) Service. For purposes of Sec. 241.16, Sec. 241.17, and
Sec. 241.18, in the case of an alien who is not personally served with
an order of removal, service by first class mail to the last address
provided by the alien in accordance with section
[[Page 31164]]
239(a)(1)(F) of the Act, or part 3 or part 265 of this chapter shall be
sufficient.
(d) Effect on existing bonds. For all immigration bonds posted
prior to the effective date of this rule when it is published as a
final rule, the Service will make demand on the obligor on Form I-340
by mail to the address furnished on Form I-352 (unless the obligor is
present and the demand can be served on the obligor in person),
requiring the obligor to produce the alien at a time, date and place
certain not later than the final date of the surrender period. The I-
340 shall be mailed (or delivered in person) as soon as practicable
after receipt of the final order from the immigration judge or the
Board of Immigration Appeals.
(e) Change in handling of new bonds. For all immigration bonds
posted after the effective date of this rule when it is published as a
final rule, the bond will be deemed to have been breached when the
alien fails to surrender within the 30-day surrender period. It is the
duty of the obligor(s) to monitor the status of proceedings against the
alien and ensure that the alien surrenders within the 30-day surrender
period.
(f) Construction in relation to post-order custody rules. An
alien's duty to surrender, as set forth in Sec. 241.16, Sec. 241.17,
and Sec. 241.18, is an affirmative obligation. The failure to comply
with this obligation shall be considered a failure to comply for
purposes of custody determinations pursuant to Sec. 241.4.
Dated: April 30, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-11141 Filed 5-8-02; 8:45 am]
BILLING CODE 4410-10-P
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