10312 Federal Register /Vol. 62, No. 44/Thursday, March 6 ... · 10312 Federal Register/Vol. 62, No. 44/Thursday, March 6, 1997/Rules and Regulations DEPARTMENT OF JUSTICE ... No

10312 Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

Executive Office for ImmigrationReview

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 ofAliens; Detention and Removal ofAliens; Conduct of RemovalProceedings; Asylum Procedures

AGENCY: Immigration and NaturalizationService, Justice, and Executive Office forImmigration Review, Justice.ACTION: Interim rule with request forcomments.

SUMMARY: This interim rule amends theregulations of the Immigration andNaturalization Service (Service) and theExecutive Office for ImmigrationReview (EOIR) to implement theprovisions of the Illegal ImmigrationReform and Immigrant ResponsibilityAct of 1996 (IIRIRA) governingexpedited and regular removalproceedings, handling of asylum claims,and other activities involving theapprehension, detention, hearing ofclaims and ultimately the removal ofinadmissible and deportable aliens. Thisrule incorporates a number of changeswhich are a part of the Administration’sreinvention and regulation streamlininginitiative.DATES: Effective date: This interim ruleis effective April 1, 1997.

Comment date: Written commentsmust be submitted on or before July 7,1997.ADDRESSES: Please submit writtencomments, in triplicate, to the Director,Policy Directives and InstructionsBranch, Immigration and NaturalizationService, 425 I Street, NW, Room 5307,Washington, DC 20536. To ensureproper handling, please reference INSnumber 1788–96 on yourcorrespondence. Comments areavailable for public inspection at theabove address by calling (202) 514–3048to arrange for an appointment.FOR FURTHER INFORMATION CONTACT: Formatters relating to the Executive Officefor Immigration Review—Peggy Philbin,General Counsel, Executive Office forImmigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, VA22041, 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, telephonenumber (202) 616–7439; for inspectionsissues—Linda Loveless, Office ofInspections, Immigration andNaturalization Service, 425 I Street NW,Room 4064, Washington, DC 20536,telephone number (202) 616–7489; fordetention and removal issues—LenLoveless, Office of Detention andDeportation, Immigration andNaturalization Service, 425 I Street NW,Room 3008, Washington, DC 20536,telephone number (202) 616–7799.

SUPPLEMENTARY INFORMATION:

BackgroundThe Immigration and Naturalization

Service and the Executive Office forImmigration Review jointly published aproposed rule on January 3, 1997 (62 FR443–517 (1997)), to implement sectionsof the Illegal Immigration Reform andImmigrant Responsibility Act of 1996,Pub. L. 104–208, which was enacted onSeptember 30, 1996. This legislationsignificantly amended the Immigrationand Nationality Act (Act) by revising theasylum process and providing amechanism for the determination andreview of certain applicants whodemonstrate a credible fear ofpersecution if returned to their owncountry; expanding the grounds ofinadmissibility; redefining applicantsfor admission to include aliens whoentered the United States withoutinspection; creating new expeditedremoval procedures for aliensattempting to enter the United Statesthrough fraud or misrepresentation orwithout proper documents;consolidating the former exclusion anddeportation proceedings into oneunified removal proceeding; andreorganizing and renumberingnumerous provisions of existing law.

The effective date of most of theprovisions affecting asylum, inspection,and removal processes is April 1, 1997,and implementing regulations must bein place by March 1, 1997. Theproposed rule allowed only a 30-daycomment period. The limited commentperiod was necessary, given the shortstatutory deadline and the time neededto draft the rule, coordinate withinterested agencies, and complete theregulatory review process by the Officeof Management and Budget. In order tomeet the statutory deadline for animplementing regulation and yetprovide adequate opportunity for public

input on the issues addressed in thisrulemaking, this rule is being publishedas an interim rule with an additional120-day comment period.

The Department received 124comments on the proposed rule. Most ofthe commenters represented eitherattorney organizations or voluntaryorganizations predominantly involvedwith refugees and asylum claimants.Commenters addressed a variety oftopics, with much of the focus onasylum, expedited removal, andvoluntary departure. The Departmentalso received comments from individualmembers of Congress and Congressionalsubcommittees. Since many of thecomments were duplicative or endorsedthe submissions of other commenters,they will be addressed by topic, ratherthan referencing each specific commentand commenter. Also, because many ofthe comments were complex and dealtwith issues that may be better addressedafter the Department has had a period oftime to gain operational experienceunder the new law, suggestions thatwere not adopted for the interim periodwill be further considered when a finalrule is prepared. A number of commentswere received concerning sections of theregulations that were not specificallychanged by the proposed rule, but weresimply moved to new sections. TheDepartment has not addressed thesecomments at this time, but will considerthem either as part of separaterulemaking initiatives or as part of thefinal rule rather than the interim rule,after the Service and EOIR more closelystudy the proposals. Thissupplementary information will identifysignificant changes made to theproposed rule and briefly discussreasons why many other majorsuggestions were not adopted at thistime.

Although the Department hasaddressed the major comments received,there will be further detailed analysis ofthese comments, as well asconsideration of the additionalcomments received during the 120-daycomment period following publicationof the interim regulation. This willensure every suggestion is more fullyexplored. Commenters responding tothe interim rule may choose to amendor expand on prior comments or addressother areas not raised by commentersduring the first comment period.

DefinitionsSeveral sections of the statute, such as

sections 212(a)(9), 240B, and 241 of theAct, refer to arriving aliens, even thoughthis term is not defined in statute. Aftercarefully considering these references,the Department felt that the statute

10313Federal Register / Vol. 62, No. 44 / Thursday, March 6, 1997 / Rules and Regulations

seemed to differentiate more clearlybetween aliens at ports-of-entry andthose encountered elsewhere in theUnited States. For clarity, ‘‘arrivingalien’’ was specifically defined in 8 CFRpart 1, and the Department invitedcommentary on the proper scope of theregulatory definition.

One commenter suggested that aliensinterdicted in United States watersshould not be included in the definitionbecause persons arriving in UnitedStates waters have already legallyarrived in the United States. The Boardof Immigration Appeals (BIA) hasconsistently held that the mere crossinginto the territorial waters of the UnitedStates has never satisfied the test ofhaving entered the United States. SeeMatter of G, 20 I&N Dec. 764 (BIA 1993).Aliens who have not yet establishedphysical presence on land in the UnitedStates cannot be considered as anythingother than arriving aliens. In addition,the Department has for years relied oninterdiction efforts to stem the flow ofinadmissible aliens and attemptedillegal entries by sea. The inclusion ofaliens interdicted at sea in the definitionof arriving alien will support theDepartment’s mandate to protect thenation’s borders against illegalimmigration. These provisions in noway alter the Department’s currentinterdiction policy and should not beconstrued as to require that allinterdicted aliens be brought to theUnited States. Only when an expressdecision is made, in accordance withexisting interdiction policies, totransport an interdicted alien to theUnited States, will that alien beconsidered an arriving alien forpurposes of the Act.

Another commenter suggested thatthe definition be expanded to includealiens who have been present for lessthan 24 hours in the United Stateswithout inspection and admission. TheDepartment extensively considered thisand similar options, such as a distance-based distinction. For the reasonsdiscussed below relating to the decisionnot to apply the expedited removalprovisions at this time to certain alienswho entered without inspection, andconsidering the difficulty not only inestablishing that the alien enteredwithout inspection, but also indetermining the exact time of the alien’sarrival, the Department continues tobelieve the position taken in theproposed rule is correct and will notmodify this definition in the interimrule. The definition of ‘‘arriving alien’’will be given further consideration inthe final rule, however, drawing uponthe experience of the earlyimplementation of the interim rule.

One commenter objected to theinclusion of parolee in the definition ofarriving alien. The definition in theproposed rule states ‘‘An arriving alienremains such even if paroled pursuantto section 212(d)(5) of the Act.’’ Theinclusion of paroled aliens was based onthe statutory language in section212(d)(5) of the Act, which states‘‘* * * but such parole of such alienshall not be regarded as an admission ofthe alien and when the purposes of suchparole shall, in the opinion of theAttorney General, have been served thealien shall forthwith return or bereturned to the custody from which heor she was paroled and thereafter hiscase shall continue to be dealt with inthe same manner as that of any otherapplicant for admission to the UnitedStates.’’ Existing regulations at§ 212.5(d) relating to termination ofparole echo this provision, stating‘‘* * * he or she shall be restored tothe status he or she had at the time ofparole.’’ The Department feels there issolid statutory basis for inclusion ofcertain paroled aliens in the definitionof arriving alien, and so will retain thisprovision.

The Department has added twoadditional definitions for the sake ofclarity. The term ‘‘Service counsel’’ hasbeen added to clarify that although theterm refers to any immigration officerdesignated to represent the Servicebefore the Immigration Court or the BIA.Existing regulations interchangeably usethis term and a variety of other terms,including trial attorney, district counseland assistant district counsel. The term‘‘aggravated felony’’ has also beendefined by reference to section101(a)(43) of the Act as amended byIIRIRA. The regulatory definitionclarifies that the amended section101(a)(43) applies to any proceeding,application, custody determination oradjudication.

Parole of AliensThis interim rule modifies § 212.5(a)

to comport with the statutory changemade by IIRIRA to section 212(d)(5)(A)of the Act.

Withdrawal of Application forAdmission

The proposed rule containsprovisions to implement thelongstanding practice used by theService to permit applicants foradmission to voluntarily withdraw theirapplication for admission to the UnitedStates in lieu of removal proceedings,now included in section 235(a)(4) of theAct. The withdrawal provisions in theproposed rule were written to conformwith rulings of the BIA on withdrawal

and with standard practice in manyjurisdictions. Several commenterssuggested that every alien subject to theexpedited removal provisions shouldautomatically be offered the opportunityto withdraw his or her application foradmission prior to the secondaryinspection interview. Permission towithdraw an application for admissionis solely at the discretion of theAttorney General and is not a right ofthe alien, a premise that has beenconsistently upheld by the BIA. Onlythe Attorney General may decidewhether to pursue removal chargesagainst an alien who has violated theimmigration laws. Withdrawal ofapplication for admission is only one ofseveral discretionary options that maybe considered by the Service once thefacts of the case are known, and so willnot automatically be offered to all alienssubject to expedited removal.

The Department does, however, sharethe concern of several commenters thataliens who may be inadvertently orunintentionally in violation of theimmigration laws or regulations shouldnot be subject to the harsh consequencesof a formal removal order. TheDepartment also wishes to ensure thatthe expedited removal provisions andthe discretionary option to permitwithdrawal are applied consistently andfairly throughout the nation. Althoughnot included in the regulations at thistime, the Department intends toformulate policy guidance and criteriafor determining the types of cases inwhich such permission should orshould not be considered.

Classes Subject to Expedited Removal

The Department requested publiccomment regarding the appropriate useof the authority conferred by the statuteupon the Attorney General to expandthe class of aliens subject to expeditedremoval. Most commenters commendedthe Department on its decision not toapply at this time the expedited removalprovisions to aliens in the United Stateswho have not been admitted or paroledand who cannot establish continuousphysical presence in the United Statesfor the previous two years. At this time,the Department will apply theprovisions only to ‘‘arriving aliens,’’ asdefined in § 1.1(q). The Departmentacknowledges that application of theexpedited removal provisions to aliensalready in the United States will involvemore complex determinations of factand will be more difficult to manage,and therefore wishes to gain insight andexperience by initially applying thesenew provisions on a more limited andcontrolled basis.


The Department does, however,reserve the right to apply the expeditedremoval procedures to additionalclasses of aliens within the limits set bythe statute, if, in the Commissioner’sdiscretion, such action is operationallywarranted. It is emphasized that aproposed expansion of the expeditedremoval procedures may occur at anytime and may be driven either byspecific situations such as a suddeninflux of illegal aliens motivated bypolitical or economic unrest or otherevents or by a general need to increasethe effectiveness of enforcementoperations at one or more locations.

Although several commenterssuggested that imposition of theprovisions should only occur afterpublication of a proposed rule followedby a comment period, the statute doesnot impose any specific noticerequirement in connection with theAttorney General’s designation undersection 235(b)(1)(A)(3), and certainlydoes not impose the requirement of afull administrative rulemaking. Indeed,such a requirement would defeat amajor purpose of this provision: toallow the Attorney General to respondrapidly, effectively, and flexibly tosituations of mass influx or otherexigencies. The Attorney General haselected to exercise this authority inconnection with publication of a noticein the Federal Register (in advance,where practicable) simply as a matter ofsound administration and policy. Theprovisions contained in § 235.3(b) ofthis interim rule will apply for now onlyto arriving aliens.

Several commenters suggested thatcertain classes of individuals, such asminors, certain nonimmigrantclassifications, and aliens claiming to belawful permanent residents or U.S.citizens, should not be subject toexpedited removal, or that it should notbe applied where resources or locationdo not permit optimal inspectionconditions. Some stated that aliens inexpedited removal should be entitled toa full hearing before an immigrationjudge. The statute is clear that theexpedited removal provisions apply toall aliens inadmissible under sections212(a)(6)(C) or (7) of the Act, and thatsuch aliens are not entitled to furtherhearing or review with specific limitedexceptions. Although the statute doesnot require it, the Department hasprovided for supervisory review andconcurrence on all expedited removalorders. The statute itself provides forreview of a claim to lawful permanentresident, refugee, or asylee status. Inaddition, the Department has a certainamount of prosecutorial discretionprovided by statute. It may, in lieu of

instituting removal proceedings, permitan alien to withdraw his or herapplication for admission in those caseswhere there is no fraudulent intent andthe alien is inadmissible only throughinadvertent error or misinformation.There are also discretionary waiversavailable in certain cases.

Reorganization of § 235.3(b)(1) and (2)In order to provide a more logical

discussion of the applicability of theexpedited removal provisions and theprocedures for applying them,§ 235.3(b)(1) (determination ofinadmissibility) and § 235.3(b)(2)(applicability) as they appeared in theproposed regulation have beeninterchanged and revised as discussedbelow.

Expedited Removal ProceduresMany commenters stated that the

provisions in § 235.3(b) were notsufficiently explicit to ensure that theexpedited removal provisions are fairlyand consistently applied. Because mostof these commenters representedorganizations primarily concerned withrefugee and asylum issues, we haveaddressed this topic in detail below inthe section relating to credible feardeterminations and claims of asylum orfear of persecution by aliens subject toexpedited removal.

Review of Claim of Status as LawfulPermanent Resident, Asylee, or Refugee

Several commenters suggestedprovisions of § 235.3(b)(5) were notsufficiently clear to provide adequatereview of claims by returning lawfulpermanent residents, asylees, orrefugees who are subject to expeditedremoval. Specifically, the commentersasserted that § 235.3(b)(5)(ii) could beinterpreted to imply that an alien whoseclaim to lawful permanent residence isverified and is not granted adiscretionary waiver or provided anopportunity through deferred inspectionto present the required documents couldbe ordered removed under section235(b) of the Act. These commentersrequested that § 235.3(b)(5)(iv) of theproposed regulation be amended toallow that claimed lawful permanentresidents, asylees, or refugees (who theService has been unable to verify everwas admitted in such status) be referreddirectly to removal proceedings undersection 240 of the Act.

For the following reasons, thesesections of the proposed regulation willnot be changed in the interim rule.Section 235.3(b)(5)(ii) of the proposedregulation relates to those arrivingaliens whose prior admission as alawful permanent resident has been

verified by the immigration officer byreferring to official Service records. TheDepartment intends that when such aprior admission is verified, theindividual will not be removed underthe expedited removal provisions ofsection 235(b) of the Act, regardless ofthe officer’s determination as to theindividual’s current admissibility and/or retention of such lawful permanentstatus. For that reason the first sentenceof § 235.3(b)(5)(ii) sets forth thisprohibition. Since the removalprovisions under section 235(b) of theAct are not available, the only actionsleft for the examining officer are to:admit the individual (through the grantof a waiver if need be); defer inspectionto allow the individual to retrieve theappropriate documents; or place theperson in removal proceedings undersection 240 of the Act. This process willallow those individuals verified ashaving once been admitted as a lawfulpermanent resident, asylee, or refugee afull evidentiary hearing in removalproceedings under section 240 of theAct before an immigration judge toaddress the heavily fact-based issues ofabandonment of status or other issuesconcerning loss of status. The language‘‘may initiate proceedings’’ was usedhere to indicate that the officer is notrequired to initiate any proceedings butmay opt to admit the individual into theUnited States.

As for those individuals claiming tobe returning lawful permanentresidents, asylees, or refugees, but whoare not verified by the Service as havingever been admitted in such status, thereferral to the immigration judge in§ 235.3(b)(5)(iv) is for the purpose ofallowing the individual to establishsuch a prior admission in such status,nothing more. If the individualestablishes such a prior admission, theimmigration judge will terminate theexpedited removal order and at thatpoint that person will be in the sameposition as the person whose prioradmission was verified by theinspecting Service officer: the Servicecan admit the individual or contest hisor her current retention of such status inthe context of removal proceedingsunder section 240 of the Act.

Another commenter contended that itis not appropriate to refer aliens who areverified as having been admitted orestablish that they were once admittedas lawful permanent residents, asylees,or refugees to proceedings under section240 of the Act. Section 235(b)(1)(C) ofthe Act states that the Attorney Generalshall provide regulations foradministrative review of an expeditedremoval order entered against ‘‘an alienwho claims under oath . . .’’ to have


been lawfully admitted as a lawfulpermanent resident, asylee, or refugee.The statute provides no further directiveas to how aliens who actually have beenadmitted in such status are to beprocessed if, in fact, the Service believesthat such status may no longer be valid.If that claim is never verified orestablished before the inspectingService officer or an Immigration Judge,the expedited removal order enteredagainst the alien will be effected and thealien will be removed from the UnitedStates. However, once an alienestablishes admission in such status, itis not inconsistent with the statute forfurther proceedings against an alienknown to have been lawfully admittedas a permanent resident, asylee, orrefugee to occur in the context ofproceedings under section 240 of theAct. Further, given the greater interestsand ties to the United States normallyat stake for such aliens compared tothose arriving without any previousstatus, the Department considers itappropriate that verified arrivingpermanent residents, asylees, andrefugees be accorded the protectionsinherent in proceedings under section240 of the Act.

Review of Claim to U.S. CitizenshipSeveral commenters stated that while

the statute and regulations provide forreview of an expedited removal order ofan alien claiming to be a lawfulpermanent resident, refugee, or asylee,there is no such provision for review ofa claim to U.S. citizenship. While U.S.citizens are not subject to theinadmissibility and removal provisionsof the Act and the Department makesevery effort to prevent the inadvertentremoval of U.S. citizens, there areapproximately 35,000 false claims toU.S. citizenship made every year atports-of-entry. Congress recognized thisproblem in IIRIRA by adding a newground of inadmissibility to section212(a)(6)(C)(ii) of the Act specificallydesignating such aliens as inadmissibleand subject to the expedited removalprovisions. Existing regulations at§ 235.1(b), which have been in place formany years, place the burden ofestablishing a claim to U.S. citizenshipon the person seeking entry. Otherwise,that person is inspected as an alien. Toprovide an additional level of reviewand safeguard against a mistakendetermination, the Department willinstitute the same procedures containedin § 235.3(b)(5) for persons who havenot been able to establish U.S.citizenship, but who maintain a claimunder oath or under penalty of perjuryto be U.S. citizens, which are used forpersons claiming to be lawfully

admitted as permanent residents,refugees, or asylees.

Several commenters stated that theregulations do not provide any criteriafor the detention or release of theseindividuals. The provisions of§ 235.3(b)(2)(iii) requiring detention ofall aliens subject to the expeditedremoval provisions and issued aremoval order also apply to personswhose claim to lawful permanentresident, refugee, asylee, or U.S. citizenstatus has not been verified. To clarifythat detention is required for theseindividuals, the interim rule reiteratesthis requirement in § 235.3(b)(5)(i).

Filing of an Application for a RefugeeTravel Document While Outside theUnited States

Several commenters remarkedfavorably on the proposal to revise 8CFR part 223 to allow refugees andasylees to apply for refugee traveldocuments from outside the UnitedStates, after departure from the UnitedStates, under certain very limitedcircumstances. The Departmentproposed this revision with fullawareness of the provision in section208(c)(1) of the Act under which theAttorney General may allow the alien totravel abroad ‘‘with the prior consent ofthe Attorney General.’’ Despite theimplied language of the statute, theDepartment felt that an exception waswarranted for those cases where thealien innocently departed in ignoranceof the requirement or, although aware ofthe requirement, departed withoutapplying for the document due to anurgent humanitarian need, such as theimpending death of a close relative. Itshould be noted that the currentregulations only require that anapplication be filed before departure,not that the applicant delay travel untilafter the application is approved and thedocument is received. The Service hasalways provided the option of allowingthe alien to pick up the documentoverseas at an American consular post.

A few commenters suggested that thedecision whether to accept suchapplications not be left to the discretionof the Service. This change has beenmade. However, the regulation does notremove the general requirement that theapplication be filed before departure,nor does it intend that the newprocedure be viewed as a routinemethod of obtaining the document.Although not specifically stated in theregulation, the Department intends thatif it is apparent that the alien knew ofthe general requirement and simplychose to ignore it (e.g., if the alien hadpreviously been issued a refugee traveldocument through this ‘‘overseas

procedure’’ and there was no emergencynecessitating the more recentdeparture), the director may determinethat favorable exercise of discretionaryauthority is not warranted. Accordingly,the regulation provides that the districtdirector having jurisdiction over theoverseas location, or over the inspectionfacility in the case of an alien at a port-of-entry, may deny the application as amatter of discretion.

A few commenters suggested thatthere be no limit on how long afterdeparture the application may be filed.Others suggested that the time limit beshortened from 1 year to 6 months tocoincide with the 6 month time framein section 101(a)(13)(C) of the Act,which is the period during which alawful permanent resident who meetscertain other requirements is notconsidered to be an applicant foradmission. Another commenter statedthat the validity of a refugee traveldocument approved under this processshould not be limited to 1 year from thedate of the alien’s departure from theUnited States, so long as the applicationwas filed within 1 year of thatdeparture. The 1-year limitation waschosen because it is the maximumvalidity period for which a documentwould have been approved had thealien complied with the requirement offiling prior to departure. Allowing anapplicant to file from outside the UnitedStates more than 1 year after departurewould effectively authorize a longervalidity period for the person who failedto comply with the requirement than forone who did. This would not beappropriate. Likewise, the 6-monthperiod during which a lawfulpermanent resident (who meets theother criteria in section 101(a)(13) of theAct) is not deemed to be seekingadmission is not analogous to that of thestranded refugee, since the refugee isclearly deemed to be seeking admission.Additionally, 6 months might be tooshort a time for the alien who realizeshis or her error to file the applicationand for the Service to verify eligibilityand approve that application. TheDepartment feels that in those caseswhere it is proper to allow an exceptionfrom the requirement to file beforedeparture, it is appropriate that thedocument be valid for the same lengthof time as for the person who compliedwith that requirement.

Revision of Asylum ProceduresIn general, many commenters

requested that specific ‘‘step-by-step’’procedural instructions be placed in theregulations regarding the interviewprocess at both the secondary inspectionstage and the credible fear


determination stage. Although a numberof these suggestions have been adopted,others have not. While the Departmentappreciates both the necessity for equaland proper treatment of all cases andthe advantages of standardization, itmust also recognize that not allsituations are identical and theinterviewing officer must be allowed acertain amount of flexibility inconducting interviews to account fordifferences in individual situations.

Convention Against TortureMany commenters urged that there be

express reference in several parts of theregulation to the non-refoulementobligation under Article 3 of theConvention Against Torture. This articlerequires a state not to ‘‘expel, return(‘refouler’) or extradite a person toanother state where there are substantialgrounds for believing that he or shewould be in danger of being subjectedto torture.’’ This article has been ineffect for the United States sinceNovember 1994. Although Article 3 ofthe Torture Convention itself is not self-executing, the Attorney General hassufficient administrative authority toensure that the United States observesthe limitations on removal required bythis provision. In fact, the Service hasreceived and considered individualrequests for relief under the TortureConvention since November 1994 andhas arranged for relief whereappropriate. For the present, theDepartment intends to continue to carryout the non-refoulement provision ofthe Torture Convention through itsexisting administrative authority ratherthan by promulgating regulations. TheService is, however, developingthorough guidelines to address Article 3issues and intends to issue thoseguidelines soon. These guidelinesgenerally, and the expedited removalprocess in particular, will beimplemented in accordance with Article3.

Prohibitions on Filing AsylumApplications

There were numerous comments onthe prohibitions on the filing of asylumapplications in section 208(a)(2) of theAct. Because of the importance of adecision to deny an alien the right toapply for asylum, the Department haschosen to adopt the suggestion that onlyasylum officers, immigration judges,and the BIA be empowered to makesuch determinations. The Departmenthas also made clear that, while the alienmust establish by clear and convincingevidence that he or she applied withinone year of his or her arrival in theUnited States, the alien’s burden of

establishing that one of the exceptionsin section 208(a)(2)(D) applies mustonly be to the ‘‘satisfaction of theAttorney General.’’ The rule alsocontemplates that the asylum officer orimmigration judge hearing such a casewill explore the reasons for the latefiling. Finally, and importantly, theDepartment has decided to follow therecommendation that the date of arrivalused to determine the one-year periodin section 208(a)(2)(B), consistent withthe effective date of that section, be noearlier than April 1, 1997. Thus, the firstcase to which this prohibition couldapply would be one filed on April 2,1998.

Regarding the changed circumstancesexception in section 208(a)(2)(D), theDepartment has followed therecommendation of numerouscommentators to drop the languagelimiting this exception, for purposes ofsection 208(a)(2)(B), to circumstancesthat arise after the one-year period. TheDepartment has also decided to providea better definition of this exception byindicating that the definition mayinclude either changed conditions in thehome country or changes in objectivecircumstances relating to the applicantin the United States, including changesin applicable U.S. law, that create areasonable possibility that the applicantmay qualify for asylum. Because ofinconsistency between the formulationof changed circumstances in section208(a)(2)(D) and the formulation insection 240(c)(5)(ii) of the Act, whichpermits an alien to file a motion toreopen beyond the time limit normallyapplicable to such a motion, theDepartment has decided to drop therequirement that, for purposes of theprohibition in section 208(a)(2)C), suchexception may only be raised through amotion to reopen.

A large number of commentersrequested that the Department listexamples of what is meant byextraordinary circumstances within themeaning of section 208(a)(2)(D) of theAct, and several commenters suggestedexamples that they believed wereappropriate. Accordingly, theDepartment has included such a list inthe interim rule. It is important to beartwo points in mind when reviewing thelist. First, the list is not all-inclusive,and it is recognized that there are manyother circumstances that might apply ifthe applicant is able to show that but forsuch circumstances the applicationwould have been filed within the firstyear of the alien’s arrival in the UnitedStates. Second, the alien still has theburden of establishing the existence ofthe claimed circumstance and that but

for that circumstance, the applicationwould have been filed within the year.

Some commenters requested that theDepartment clarify that failure toestablish changed circumstances orextraordinary circumstances might baran applicant from applying for asylum,it does not bar him or her from applyingfor withholding of removal. TheDepartment agrees and the interim rulecontains this clarification.

Some commenters objected to therequirement that an alien who meets theextraordinary circumstances criteria, filethe application ‘‘as soon after thedeadline as practicable given thosecircumstances,’’ preferring instead thephrase ‘‘within a reasonable time periodgiven those circumstances.’’ TheDepartment has adopted this suggestionand a similar formulation for the‘‘changed circumstances’’ exception.

‘‘Asylum-Only’’ Hearings

The Department noted a conflict inthe proposed rule between theprovisions of § 208.2(b)(1)(i)(C) and§ 252.2(b) regarding crewmembers whoare granted landing permits prior toApril 1, 1997, and subsequently becomedeportable. The former provision wouldplace such alien in ‘‘asylum-only’’proceedings before the immigrationjudge, while the latter would place himor her in regular removal proceedingsunder section 240 of the Act. Theinterim rule corrects this conflict byspecifying that the ‘‘asylum-only’’process applies to those crewmembersgranted landing privileges on or afterApril 1, 1997. Also, § 208.2(b)(2) hasbeen expanded to explain theconsequences of failure to appear for anasylum-only hearing and to set forthconditions and limitations on reopeningsuch proceedings.

Discovery and FOIA Issues

Some commenters expressed concernabout the statement in 8 CFR 208.12 that‘‘[n]othing in this part shall beconstrued to entitle the applicant toconduct discovery directed towards therecords, officers, agents, or employees ofthe Service, the Department of Justice orthe Department of States.’’ Specifically,they feared that the provision wouldpreclude someone from seeking, orexcuse the Service from providing,information under the Freedom ofInformation Act (FOIA). This fear istotally groundless. FOIA provisions arecovered under separate statutory andregulatory bases. The Service is guidedby 5 U.S.C. 522 and 8 CFR 103 withregard to FOIA matters, neither of whichare in any way affected by thisrulemaking.


Persecution for Illegal Departure orApplying for Asylum

Several commenters objected to theproposed elimination of§ 208.13(b)(2)(ii) and § 208.16(b)(4),which require asylum officers andimmigration judges to give ‘‘dueconsideration’’ to evidence that thegovernment of the applicant’s country ofnationality or last habitual residencepersecutes its nationals or residents ifthey leave the country withoutauthorization or seek asylum in anothercountry. These commenters interpretedthis change to mean that the Departmentdoes not wish to consider seriously suchevidence or to grant asylum orwithholding to persons who are at riskof punishment for illegal departure fromtheir countries or for applying forasylum abroad. This is not the case. TheDepartment and the United StatesGovernment continue to deplore andoppose certain countries’ practice ofseverely punishing their citizens forillegal departure or for applying forasylum in another country. TheDepartment also acknowledges thatpersons who face severe punishment forsuch acts may continue to qualify forasylum or withholding of removal.However, the regulation at issue did notclearly implement this policy. First, itrequires only that asylum officers andimmigration judges give ‘‘dueconsideration’’ to evidence of suchpractices; this is a vague and indefinitestandard. Second, it obliges adjudicatorsto consider evidence of whether acountry ‘‘persecutes’’ its nationals forsuch actions. Such language begs thevery question that an adjudicator mustanswer in deciding such a case: Doesthe alleged punishment amount topersecution? It is well-established thatnot all punishment for illegal departureconstitutes persecution. See, e.g., Sovichv. Esperdy, 319 F. 2d 21 (2d Cir. 1963);Matter of Chumpitazi, 16 I&N Dec. 629(BIA 1978). However, in some cases, itmay. Such a question must be resolvedon a case-by-case basis. Thus, ratherthan continue to have an ambiguousregulation on this issue, the Departmentbelieves its adjudicators should applythe same standards to these cases asthey would to any other case in whichthe applicant claims a fear that derivesfrom governmental prosecution. This isbest accomplished by removing theprovisions in question from theregulations.

Exception to the Prohibition onWithholding of Deportation in CertainCases

Several commenters objected to theproposed rule’s limitation in

§ 208.16(c)(3) on those aliens who maybe eligible for relief under section243(h)(3) of the Act, as amended by Pub.L. 104–132. In particular, thesecommenters object to the notion that theUnited States may summarily precludefrom eligibility for withholding ofdeportation aliens convicted of aparticularly serious crime, including anaggravated felony, without individuallyconsidering their cases. However, it iswell established in U.S. law that alienswho have been convicted of anaggravated felony are mandatorilybarred from obtaining withholding ofdeportation. See, e.g., Kofa v. INS, 60 F.3d 1084, 1090 (4th Cir. 1995) (en banc).In the proposed regulationimplementing section 243(h)(3) of theAct, the Department decided, consistentwith the revisions made to thewithholding of deportation statute bythe Illegal Immigration Reform andImmigrant Responsibility Act of 1996, tomake relief under this section availableonly to those persons convicted of anaggravated felony who receive anaggregate sentence of imprisonment ofless than 5 years. This proposal isalmost entirely consistent with a recentprecedent decision issued by the BIA onthis issue. See Matter of Q–T–M–T–, Int.Dec. 3300 (BIA 1996). Thus, theDepartment intends to retain the basicapproach in the proposed regulation.We have only added a sentenceproviding that an alien convicted of anaggravated felony shall be presumed tohave been convicted of a particularlyserious crime. This minor changerenders the regulation fully consistentwith the Board’s decision in Matter ofQ–T–M–T–, supra.

Admission of the Spouse and Childrenof an Asylee

The proposed rule reserved § 208.19for regulations pertaining to theadmission of the spouse and children ofan asylee. This matter was the subject ofa separate proposed rule published July9, 1996, see 61 FR 35,984 (1996) and theDepartment had intended to incorporatethe revised regulations into this interimrule. However, because analysis of thecomments to that earlier proposed rulehas not been completed, the Departmentwill instead redesignate the existingregulations at § 208.21 as § 208.19. Therevised regulations on the admission ofthe spouse and children of an asyleewill be incorporated into the finalregulations, which will be publishedafter the expiration of the commentperiod for this interim rule.

Credible Fear StandardSeveral commenters urged that we

adopt regulatory language emphasizing

that the credible fear standard is a lowone and that cases of certain typesshould necessarily meet that standard.Since the statute expressly defines theterm ‘‘credible fear of persecution,’’ wehave chosen not to provide in the rulea further refinement of this definition.However, both INS and EOIR will giveextensive training to their officials onthe purpose of the credible fear standardand how it is to be applied to particularcases. The Department believes thatsuch training will ensure that thestandard is implemented in a waywhich will encourage flexibility and abroad application of the statutorystandard.

Employment Authorization for AsylumApplicants

Almost all who chose to comment onthe Department’s position regardingwork authorization for asylumapplicants were pleased with thedecision to continue to allow theapplicant to apply for an employmentauthorization document once theasylum application has been pendingfor 150 days. One commenter requestedthat the 150-day period be abolished,but that suggestion was not deemedviable, especially in light of the newstatutorily-mandated 6-month minimumtime before granting such authorizationcontained in section 208(d)(2) of theAct.

The Department has also modified theregulations relating to employmentauthorization at §§ 208.7(a) and274a.12(a)(8) to ensure that applicantswho appear to an asylum officer to beeligible for asylum but have not yetreceived a grant of asylum are able toobtain employment authorization.Section 208(d)(5)(A)(i) of the Act obligesthe Service, prior to granting asylum, tocheck the identity of the applicant‘‘against all appropriate records ordatabases maintained by the AttorneyGeneral and by the Secretary of State* * *.’’ Such databases include, amongothers, the Federal Bureau ofInvestigation’s (FBI) fingerprintdatabase. At present, the Serviceinitiates such a fingerprint check at thetime it grants asylum; if the check turnsup information that undercuts thatdecision, asylum is later revoked. TheService’s experience is that the FBI’sfingerprint checks often take asignificant period of time to complete.The new statutory requirement atsection 208(d)(5)(A)(i) of the Act thusmeans that after April 1, 1997, an alienwho would otherwise appear to beeligible for asylum may have to wait fora long period of time before he or shecan be granted asylum or employmentauthorization. (A similar problem may


arise in the case of an alien who isdetermined to be a refugee under thenew language in section 101(a)(42) ofthe Act but is precluded from beinggranted asylum because of the cap insection 207(a)(5) of the Act.) Such aresult is contrary to one of the chiefpurposes of the asylum reforms broughtabout by the regulatory changes ofJanuary 1995: to ensure that bona fideasylees are eligible to obtainemployment authorization as quickly aspossible. Thus, consistent with theauthority in section 208(d)(2) of the Act,the Department has decided to makeemployment authorization available toasylum applicants who arerecommended for a grant of asylum buthave not yet received such grant ofasylum or withholding. An alien mayapply for employment authorizationunder these provisions as soon as he orshe receives notice of the grantrecommendation.

Credible Fear Determinations andClaims of Asylum or Fear ofPersecution by Alien Subject toExpedited Removal

Under the new section 235(b)(1)(A)(ii)of the Act, an alien subject to expeditedremoval who indicates an intention toapply for asylum or who expresses afear of persecution will be referred to anasylum officer to determine if the alienhas a credible fear of persecution. Manycommenters stated that the regulation in§ 235.3 was not sufficiently detailed indelineating the following procedures forrecognizing and referring arriving alienswho may be genuine refugees fleeingpersecution: disclosures to arrivingaliens; conditions of secondaryinspection; use of interpreters;representation during secondaryinspection; written record ofproceeding; time and place of crediblefear interview; detention pending adetermination of credible fear; anddetention following a determination ofcredible fear. We will address theseconcerns individually.

Disclosures to Arriving AliensMany commenters expressed the

opinion that all arriving aliens shouldbe provided with informationconcerning the credible fear interview.This contention is based on thelanguage of the statute in section235(b)(1)(B)(iv) that states: ‘‘TheAttorney General shall provideinformation concerning the asyluminterview described in thissubparagraph to aliens who may beeligible * * *.’’ The commenters’position is that this requirement is notlimited only to aliens who ‘‘are’’eligible, but that all aliens who are

suspected of qualifying for expeditedremoval ‘‘may’’ be eligible, and that theinformation should be given before thesecondary inspection pre-screeningprocess.

To understand the Service position onthis issue, one must understand thegeneral inspection process. All personsentering the United States at ports-of-entry undergo primary inspection. U.S.citizens are exempt from the inspectionprocess, but must nevertheless undergoan examination to determineentitlement to exemption frominspection. In FY 96, the Serviceconducted more than 475 millionprimary inspections. During the primaryinspection stage, the immigration officerliterally has only a few seconds toexamine documents, run basic lookoutqueries, and ask pertinent questions todetermine admissibility and issuerelevant entry documents. At most landborder ports-of-entry, primaryinspection duties are shared with U.S.Customs inspectors, who are cross-designated to perform primaryimmigration inspections. If there appearto be discrepancies in documentspresented or answers given, or if thereare any other problems, questions, orsuspicions that cannot be resolvedwithin the exceedingly brief periodallowed for primary inspection, theperson must be referred to a secondaryinspection procedure, where a morethorough inquiry may be conducted. Inaddition, aliens are often referred tosecondary inspection for routinematters, such as processing immigrationdocuments and responding to inquiries.While millions of aliens (almost 10million in FY 96) are referred tosecondary inspection each year formany reasons, approximately 90 percentof these aliens are ultimately admittedto the United States in a very shortperiod of time once they have beeninterviewed and have established theiradmissibility.

The secondary officer often does notknow if an alien is likely to be removedunder the expedited removal processuntil he or she has questioned the alien.Congress, in drafting the expeditedremoval provisions, chose to includeboth section 212(a)(6)(C) and 212(a)(7)of the Act as the applicable grounds ofinadmissibility. The commonperception is that most expeditedremoval cases will involve obviousfraudulent documents, or aliens arrivingwith no documents at all. This is notnecessarily the type of case that mostfrequently falls within the provisions ofsections 212(a)(6)(C) and (7) of the Act.Section 212(a)(6)(C) of the Act includes‘‘any alien who, by fraud or willfullymisrepresenting a material fact, seeks to

procure (or has sought to procure or hasprocured) a visa, other documentation,or admission into the United States orother benefit provided under this Act* * *,’’ as well as aliens who falselyrepresent themselves to be citizens ofthe United States. In addition to thepresentation of fraudulent documents,the falsity of which may not be verifieduntil a thorough examination has beenconducted, the fraud andmisrepresentation referenced in thissection may include falsehoods told bythe alien concerning his or heradmission or other misrepresentationstold to Government officials now or inthe past.

Section 212(a)(7) of the Act, inaddition to covering a lack of validdocuments (including expired orincorrect visas or passports), alsoencompasses the alien ‘‘who is not inpossession of a valid unexpiredimmigrant visa.’’ Under immigrationlaw, aliens who cannot establishentitlement to one of the nonimmigrantcategories contained in the Act arepresumed to be immigrants, and, if notin possession of a valid immigrant visa,are inadmissible under section 212(a)(7)of the Act. The majority of the alienscurrently found inadmissible to theUnited States fall into this category andwill now be subject to expeditedremoval. Again, inadmissibility underthis ground often cannot be determineduntil the secondary inspector hasthoroughly questioned the alien.

To fully advise, prior to anysecondary questioning, nearly all aliensreferred to secondary inspection of theexpedited removal procedures and ofthe possibility of requesting asylumwould needlessly delay the millions ofaliens who are ultimately foundadmissible after secondary questioning.For almost all of these people, asylum,fear of persecution, or fear of return isnot an issue.

The Service has very carefullyconsidered how best to ensure that bonafide asylum claimants are given everyopportunity to assert their claim, whileat the same time not unnecessarilyburdening the inspections process orencouraging spurious asylum claims.Service procedures require that allexpedited removal cases will bedocumented by creation of an officialService file, to include a completesworn statement taken from the alienrecording all the facts of the case andthe reasons for a finding ofinadmissibility. This sworn statementwill be taken on a new Form I–867AB,Record of Sworn Statement inProceedings under Section 235(b)(1) ofthe Act. The form will be used in everycase where it is determined that an alien


is subject to the expedited removalprocess, and contains a statement ofrights, purpose, and consequences of theprocess. Among other things, it clearlyadvises the alien that this may be theonly opportunity to present informationconcerning any fears or concerns aboutbeing removed from the United States,and that any information concerningthat fear will be heard confidentially byanother officer. The final page of theform contains a standard questionasking if the alien has any fear orconcern of being removed or of beingsent home. If, during the course of thesworn statement, or at any time in theprocess, the alien indicates a fear orconcern of being removed, he or shewill be given a more detailed writtenexplanation of the credible fearinterview process prior to being placedin detention pending the credible fearinterview. The Inspector’s Field Manualwill contain detailed instructions andguidance to officers to assist them inrecognizing potential asylum claims,and this topic will also be covered inofficer training. Every expeditedremoval case also undergoessupervisory review before the alien isremoved from the United States. TheService is confident that thesesafeguards will adequately protectpotential asylum claimants. To ensurethat these procedures are followed inevery expedited removal case, languagehas been added to § 235.3(b)(4)outlining the procedures.

Conditions of Secondary Inspection

Numerous commenters indicated thatthe secondary inspection should beconducted in private, comfortablerooms, and that no secondary inspectionshould take place before an alien hashad time to rest (some commenterssuggested 24 hours), eat, and consultwith family, friends, counsel, or otherrepresentatives. The commenters alsosuggest that aliens should have access tointerpreters before and during thescreening process.

At airports, the inspection facilitiesfor the Federal Inspection Services(FIS), which includes the Service, U.S.Customs Service, the U.S. Department ofAgriculture, and the U.S. Public HealthService, are provided by the airportauthorities. While the Government hasinput when new facilities areconstructed, the inspection areas,especially in older airports, simply donot allow for the amenities suggested bythe commenters. The same is true forland border ports, where the facility isusually provided by the GeneralServices Administration and overallspace is often extremely limited. The

Service has always made every effort toafford as much privacy during sensitiveor complex interviews as conditionsallow, and will continue to do so.

As for delaying the secondaryinterview to allow every alien time torest prior to being questioned, theService again points out that it conductsmore than ten million secondaryinspections each year. Most of thosequestioned are eager to have theirinspection completed as quickly aspossible. The Department has neitherthe resources nor the authority to detainall secondary referrals without firstconducting a prompt interview todetermine inadmissibility.

Use of InterpretersThe issue of language barriers and the

use of interpreters is not new to theService. The Service makes use ofinterpreters whenever necessary andwill continue to do so to ensure that allaliens are fully apprised of theproceedings against them. The Servicecurrently uses its own officers, many ofwhom are bilingual or multilingual,airport personnel, or telephonicinterpretive services when in-personinterpreters are not available.Occasionally, family members orpersons waiting to meet the arrivingalien may be allowed to assist intranslation of the interview. The Servicewill use appropriate means to ensurethat aliens being removed are advised ofand understand the reasons for theremoval and the consequences of suchremoval.

Representation During SecondaryInspection

Several commenters stated that analien subject to expedited removalshould be able to obtain representationor counsel prior to any secondaryinspection interview. As discussed inthe section on disclosures to aliens inexpedited removal, the secondaryinspection officer often does not knowthat an alien will be subject to expeditedremoval until such questioning hastaken place, nor will all determinationsof inadmissibility under section212(a)(6)(C) or (7) of the Act result in anexpedited removal order. Section 292 ofthe Act provides that in any removalproceeding before an immigration judge,the person concerned shall have theprivilege of being represented bycounsel, at no expense to theGovernment. Congress did not amendthis section to include proceedingsbefore an immigration officer. Inaddition, while Congress specificallyprovided for consultation prior to thecredible fear interview, it did notprovide for consultation prior to the

immigration inspection and issuance ofthe order. Therefore, the Departmentwill retain its interpretation that analien in primary or secondaryinspection is not entitled torepresentation, except where the personhas become the focus of a criminalinvestigation and has been taken intocustody for that purpose.

Written Record of Proceeding

Several commenters expressedconcern that there be a complete recordof proceeding to ensure that Serviceofficers are making proper decisions. Aspreviously explained, an official Servicefile will be created on every expeditedremoval case. The file will includephotographs, fingerprints, copies of anydocumentary or other evidencepresented or discovered, and a completewritten sworn statement. The swornstatement will record all facts of thecase and the alien’s statements. As withall sworn statements taken by theService, the alien is required to initialeach page and any corrections, and signthe statement certifying that he or shehas read (or had read to him or her), thestatement and that it is true and correct.When necessary, interpreters will beused. The language added to theregulation at § 235.3(b)(2) requires thatsuch sworn statement be taken in everycase. Procedures developed for theInspector’s Field Manual also containvery specific instructions regarding therecord of proceeding.

Time and Place of Credible FearInterview

Several commenters requested thatthe regulations state where and whenthe credible fear interviews will takeplace. The statute provides that crediblefear interviews may take place either ata port-of-entry or at other locations thatthe Attorney General may designate.The Service intends that mostinterviews will be conducted at Servicedetention facilities, but prefers theflexibility to make adjustments to thisarrangement as the need arises.Therefore, this operational concern willnot be addressed in the regulation. TheService maintains detention facilitiesnear several major airports such as JFK,Miami, and Los Angeles, as well asmany locations along the southernborder and other sites like Denver,Seattle, and Houston. In circumstanceswhere the port of arrival is not near aService detention facility and it isimpractical to transport the alien to aService facility, the alien may bedetained in other Service-approveddetention sites, such as local or countyjails. In these instances an asylum


officer will travel to the detention siteto conduct the interview.

Several commenters suggest that theService should conduct credible fearinterviews at its local asylum officeswhenever possible. The Service declinesto be bound by this suggestion becauseof the prohibitive costs involved intransporting aliens, under escort, to andfrom detention facilities. However, theService retains the option to conductinterviews at places designated forasylum officers.

Similarly, the Service intends thataliens will normally be given 48 hoursfrom the time of arrival at the detentionfacility, in which to contact familymembers, friends, attorneys, orrepresentatives. During the referralprocess from the port-of-entry, they willbe given a list of pro bonorepresentatives. This list is provided forthe purpose of consultation prior to theinterview, and does not entitle the aliento formal counsel or representationduring the credible fear interview. Thealiens will be given access to atelephone to make such contacts.Commenters suggest that aliens be givenpetty cash or be permitted to maketelephone calls at Government expense;however, the statute that provides forsuch consultation specifically states thatthe consultation shall be at no expenseto the Government.

Detention Pending a Determination ofCredible Fear

A few commenters stated that theprovisions of § 235.3(b)(4) for detentionof aliens awaiting a credible feardetermination are too harsh, and askedthat the rule be amended to allow forparole of such aliens. However, becausesection 235(b)(1)(B)(iii)(IV) of the Actrequires that an alien in expeditedremoval proceedings ‘‘shall be detainedpending a final determination ofcredible fear of persecution and, iffound not to have such a fear, untilremoved,’’ the Department feels thatparole is appropriate only in the verylimited circumstances specified in§ 235.3(b)(4). The interim rule has beenamended, however, to clarify that aliensfound to have a credible fear will besubject to the generally applicabledetention and parole standardscontained in the Act. Although paroleauthority is specifically limited while acredible fear determination is pendingunder § 235.3(b)(4), those found to havea credible fear and referred for a hearingunder section 240 of the Act will besubject to the rule generally applicableto arriving aliens in § 235.3(c). Inaddition, § 235.3(c) has been amendedto retain detention authority for alienswhose admissibility will be determined

in exclusion proceedings after April 1,1997.

Review of Credible Fear DeterminationsThe proposed regulation provides that

an alien may receive, upon request,review by an immigration judge of anasylum officer’s finding of no crediblefear. A number of commenters requestedthat language be inserted in the interimregulation which presumes that anasylum officer’s finding of no crediblefear will be reviewed by an immigrationjudge unless the alien desires toabandon the review and return to his orher home country. If such a suggestionis not adopted, these commentersrequest that, at a minimum, language beinserted requiring that the asylumofficer advise the alien of his or herright to request review of the negativedecision and requiring the officer to askthe alien whether he or she desires suchreview. The language of section235(b)(1)(B)(iii)(III) of the Act clearlyprovides that the alien has theobligation to request review of anegative credible fear determination.The Department notes that § 208.30(e) ofthe proposed regulation requires theasylum officer to inquire whether thealien wishes review of the negativecredible fear determination. Thisprovision is appropriated into Form I–589.

A number of commenters asked thatthe regulation provide that, wheneverpracticable, the credible fear review beconducted in person; that the alien maybe assisted by an attorney or otherrepresentative; and that an interpreterbe provided when necessary. Anothercommenter stated, however, that nocounsel should be allowed in the reviewof credible fear determinations; rather, arepresentative should be allowed tosubmit a written statement. TheDepartment recognizes the concernsraised by these commenters. However,because the proposed regulation setsforth a procedure for credible fearreview that is consistent with thelanguage of section 235(b)(1)(B)(iii)(III)of the Act and provides the AttorneyGeneral the flexibility to administersuch a procedure, the rule was notchanged.

One commenter asserted that theproposed regulation that provides for analien who demonstrates a credible fearof persecution to be placed in removalproceedings under section 240 of theAct is incorrect. The commentermaintains that IIRIRA contemplates thatsuch aliens will be limited to an‘‘asylum only’’ hearing with an appealto the Board. This portion of theregulation will not be changed in theinterim rule. Section 235(b)(1)(B)(ii) of

the Act provides that if an asylumofficer determines that an alien has acredible fear of persecution, the alien‘‘shall be detained for furtherconsideration of the application forasylum. The remainder of section 235(b)of the Act is very specific as to whatprocedures should be followed if analien does not establish a credible fear.However, the statute is silent as to theprocedures for those who dodemonstrate a credible fear ofpersecution. Once an alien establishes acredible fear of persecution, the purposebehind the expedited removalprovisions of section 235 of the Act toscreen out arriving aliens withfraudulent documents or no documentsand with no significant possibility ofestablishing a claim to asylum has beensatisfied. Therefore, the furtherconsideration of the application forasylum by an alien who has establisheda credible fear of persecution will beprovided for in the context of removalproceedings under section 240 of theAct.

Detention Following a Determination ofCredible Fear

Numerous commenters stated thataliens who have established a crediblefear of persecution are presumptivelyeligible for release and should not bedetained unless the government candemonstrate that the alien poses adanger to the community or a risk offlight. Some stated that the burdenshould be on the government to provethat custody is necessary. Again, theclear language of the statute states thatsuch aliens shall be detained. Theparole provisions of section 212(d)(5) ofthe Act provide discretionary authorityto the Attorney General to parole intothe United States or from custody onlyon a case-by-case basis. The crediblefear standard sets a low threshold ofproof of potential entitlement to asylum;many aliens who have passed thecredible fear standard will notultimately be granted asylum. It shouldalso be noted, as stated by onecommenter, that these aliens are primafacie inadmissible to the United States.However, the Department intends, aspart of the credible fear interviewprocess, to assess the eligibility forparole of aliens who have beendetermined to have a credible fear. Thediscretion to release from custody willremain with the district director on acase-by-case basis.

Effect of Initiation of RemovalProceedings

Several commenters objected to thelanguage in section 239.3 providing thatthe filing of a notice to appear has no


effect in determining periods ofunlawful presence. These commentersnoted that this section of the regulationcould be interpreted to mean that theperiod of time a respondent is inremoval proceedings is not a period‘‘authorized by the Attorney General,’’which would mean that removalproceedings would not toll the runningof time periods for purposes of the barsto admission in section 212(a)(9)(B) ofthe Act. The result, the commentersassert, would be that people would becompelled to abandon their legitimateclaims for relief from removal because,by pursuing such relief before animmigration judge or on appeal to theBoard, an individual would riskaccruing over 180 days in ‘‘unlawfulstatus’’ and thereby becominginadmissible under section212(a)(9)(B)(i)(I) of the Act. Thecommenters recommended that eitherthis language in section 239.2 be deletedor that it be replaced by a statement thatthe filing of a notice to appear tolls theperiod of unlawful presence.

Upon review, the Department hasconcluded that the regulation will beretained without change in the interimrule. Section 212(a)(9)(B)(iv) of thestatute is clear that any period of illegalpresence may tolled only in very limitedcircumstances. This section of thestatute does not include issuance of acharging document among thosecircumstances. The Department doesnot agree that application of this sectionwill deter aliens from pursuing validclaims for relief in removal proceedings.The same forms of relief, includingasylum and adjustment of status, remainavailable in such cases, even afterpassage of the 180 day and one yeartime limits. Similarly, availability ofvoluntary departure is unchanged.Further clarification of the applicabilityof section 212(a)(9) will be included ina separate proposed rule which theService is currently drafting.

Motions to Reopen After DepartureFrom United States

A few commenters recommended thatmotions to reopen be permitted afterdeparture and that the Departmentdelete the language in § 3.2(d) of theproposed rule providing that motions toreopen or reconsider cannot be made byor on behalf of a person after thatperson’s departure from the UnitedStates. These commenters contend thatthis regulation is no longer validbecause IIRIRA substituted formersection 106(c) of the Act with newsection 242. New section 242 of the Actdoes not contain the provision of formersection 106(c) barring judicial review ofa final order of deportation or exclusion

if the alien departed the United Statesafter issuance of that order. Thecommenters assert that if a petition forreview of habeas corpus is successful,the petitioner should be lawfullyentitled to reopen his or her removalcase, even though he or she departedfrom the United States. They argue thatsuch motions will promote judicialefficiency and economy.

The Department has decided not toadopt this suggestion and the interimregulations will not be changed. Noprovision of the new section 242 of theAct supports reversing the longestablished rule that a motion to reopenor reconsider cannot be made inimmigration proceedings by or on behalfof a person after that person’s departurefrom the United States.

Departure Constituting Withdrawal ofMotion

In the proposed regulation, § 3.2(d)did not provide that departure from theUnited States after the filing of a motionto reopen or a motion to reconsiderconstitutes a withdrawal of suchmotion. The Department hasreconsidered the advisability ofadjudicating motions to reopen andreconsider subsequent to an alien’sdeparture from the United States. Theinterim regulation retains the longestablished principal that any departuresubsequent to moving to reopen orreconsider constitutes a withdrawal ofthat motion. The Department believesthat the burdens associated with theadjudication of motions to reopen andreconsider on behalf of deported ordeparted aliens would greatly outweighany advantages this system mightrender. Further, the Department isconfident that the immigration judge’sdiscretionary authority to stay thedeportation or removal of an alien whohas filed a motion to reopen orreconsider will safeguard an alien frombeing inappropriately deported beforehe is heard on his motion to reopen ormotion to reconsider.

Time and Numerical Limitations onFiling Motions

A number of commenters pointed outthat §§ 3.2(d) and 3.23(b) subject allparties to time and numerical limits formotions to reopen in deportation andexclusion proceedings, but apply thoselimits only to aliens in removalproceedings. These commenters arguethat the same limitations should applyto all parties in all proceedings.

IIRIRA specifically mandates that‘‘[a]n alien may only file one motion toreopen’’ in removal proceedings.Congress has imposed limits on motionsto reopen, where none existed by statute

before, and specifically imposed thoselimits on the alien only. The interimregulations will not be changed.

One commenter suggested that thetime and numerical limitations formotions to reopen should be broaderthan changed country conditions, asprovided in § 3.23(b)(4). The commenterasserted that IIRIRA contains a muchbroader exception for individuals toapply for asylum beyond the one yeardeadline and that it is inconsistent forthe statute to provide these broaderexceptions if eligible applicants will bebarred from applying for asylumbecause of the stricter motion to reopenstandard. As noted earlier, theDepartment has decided to drop therequirement that the changedcircumstances exception to the one yearfiling deadline in section 208(a)(2) ofthe Act be raised only through a motionto reopen. The Department also notesthat the standard for reopening anasylum case provided in 8 CFR3.23(b)(4) is entirely consistent with theasylum reopening standard provided inIIRIRA.

Retention of September 30, 1996 Cut-Off Date on Filing Certain Motions

Some commenters indicated that§ 3.2(c)(2) does not retain the September30, 1996 cut-off date for earlier motionsto reopen, while the proposed section3.2(b)(2) does retain the July 31, 1996cut-off date for earlier motions toreconsider. The commenters point outthat although these dates have passed,they should be retained to ensure therights of respondents who submittedtimely motions that have not yet beenadjudicated. Since the commentersdemonstrate that the cut-off date in§§ 3.2(c)(2) and 3.23(b)(1) are notnecessarily obsolete references, thosesections are revised in the interimregulation to retain the appropriate cut-off dates.

Immigration Court Rules of ProcedureOne commenter noted that § 3.12

omitted disciplinary proceedings under§ 292.3 from the scope of the rules ofImmigration Court procedure. Thecommenter correctly noted that noexplanation had been given as to whydisciplinary proceedings were omittedfrom the scope of the rules. Section292.3 is currently being revised by EOIRand will ultimately be moved into 8CFR 3. It was thought that thedisciplinary proceedings regulationswould have been revised and movedinto part 3 prior to publication of thisinterim regulation and that a referenceto § 292.3 would not be necessary. Thedisciplinary proceedings regulation,however, is still in progress. The interim


rule will therefore place the reference todisciplinary proceedings pursuant to§ 292.3 back into § 3.12.

One commenter claimed that§ 3.25(b), which allows the immigrationjudge to waive a hearing and enter adecision upon a stipulated request forthat order, raises due process concernsbecause the provision requiring animmigration judge to determine that thealien’s waiver is voluntary, knowingand intelligent is not an adequatesafeguard. The interim rule does notchange this provision. The requirementthat the immigration judge determine ifan unrepresented alien’s waiver isvoluntary, knowing and intelligentbefore granting a stipulated request foran order safeguards against animprudent waiver of a formaladjudication on the part of anunrepresented alien. Further, therequest for the order and waiver of thehearing must not only be stipulated toby both the alien and the Service, butmust also be approved by theimmigration judge. If an immigrationjudge is confronted with a stipulatedrequest raising due process concerns, heor she may examine that request in thecontext of a hearing.

Comments Relating to RemovalHearings Under Section 240 of the Act

Several commenters were concernedwith various aspects of the ordinaryremoval hearing process. One aspect ofthe removal process that receivedseveral comments was the method ofservice of Form I–862, Notice to Appear.Specifically, commenters wereconcerned that service of the notice toappear by regular mail would beinadequate. A few commenters haveassumed that because service bycertified mail is not required in allcases, it will not be used in any case.Both the statute and the regulations,however, allow for service by regularmail only when personal service is ‘‘notpracticable.’’ Moreover, because theregulatory provisions at issue followexactly the requirements of the Act,these provisions have not been changedin the interim rule.

Commenters expressed concern overthe provision at § 240.8(d) that statesthat it is the alien’s burden to establishthat mandatory grounds for denial ofany application for relief do not apply.It is well-settled that an alien bears theburden of establishing eligibility forrelief or a benefit. This provision merelyreflects this well-settled rule. Also, analien is only required to establisheligibility by a preponderance of theevidence. This provision has not beenchanged in the interim rule.

One commenter expressed concernthat § 240.10 of the proposed regulationdoes not cross-reference § 236.1(e).Section 236.1(e) requires that everydetained alien be notified that he or shehas the privilege of communication withconsular authorities. The commenterproposed that § 240.10 require theService to determine whether the alienis covered by § 236.1(e) and thereforemust have an opportunity to contact theconsular officer before a responsivepleading. The Service is required tocomply with this requirement beforecommencement of removal proceedings.In the unlikely event that the Servicefailed to comply with this requirement,such a procedure could unduly delay anotherwise routine removal case. Contactwith a consular officer is unlikely tohave any bearing on a respondent’sinadmissibility or deportability. Thedelay in the proceedings and itsattendant cost would generate littlesubstantive benefit for the alien as aresult.

One commenter expressed concernover provisions in § 240.10(g)implementing section 241(b) of the Act.Those provisions allow the AttorneyGeneral to remove an alien to a countryother than as designated by the alienunder certain circumstances. Thecommenter suggests a 30-day waitingperiod for removal from the time thealien is given notice of the new countryof removal. The Service has consideredthis suggestion and has decided not tochange this provision in the interimrule. This procedure is not required bythe Act, and would place a significantstrain on detention resources.

Another commenter argued thatprovisions in § 240.7(a) relating to theadmissibility of prior statements inremoval proceedings were unnecessary.Specifically, the commenter wasconcerned about criminal pleasresulting in less than a criminalconviction and their effect on removalproceedings. It is always within theauthority of the immigration judge toassign the statement a proper weight.Moreover, this provision was carriedover from the prior regulations where itformerly existed at § 242.14(c). Thus,this section has not been changed in theinterim rule.

Several commenters requested that§ 240.12(a) of the proposed regulationinclude language that was in former§ 242.18(a) requiring that the decision ofan immigration judge ‘‘shall include adiscussion of the evidence and findingsas to deportability [inadmissibility].’’The commenters assert that suchfindings and discussion of the evidenceis necessary for the respondent toproperly determine whether to file a

motion for reconsideration of thatdecision or to prepare a notice of appealwith sufficient specificity to prevent asummary dismissal by the Board under§ 3.1(d)(1)(1–a) of the regulations. TheDepartment disagrees. The proposedregulation allows for an adequatearticulation of the immigration judge’sbasis for his or her decision as well asthe underlying reasons for granting ordenying the request. The rule providessufficient information for therespondent to prepare a notice of appealwith sufficient specificity to prevent asummary dismissal of appeal. For thesereasons this section has not beenchanged in the interim rule.

Other comments regarding proceduresare not discussed individually and havenot been adopted in this interim rule.Most recommended changes to existingprocedures or commented on matterswhich directly resulted from changes tothe law itself. These comments will bereviewed and considered in greaterdetail when the final rule is prepared.

Guardian Ad LitemIn the proposed rulemaking, the

Department solicited comments on theadvisability of procedures forappointment of guardians ad litem.Several thorough and detailedcomments were received. Because theissue is a complex and sensitive one, theDepartment has decided to furtherexamine the issue and prepare aseparate rulemaking at a later date.

Cancellation of RemovalA number of commenters expressed

concern with section 240.20(b) of theproposed regulation, which states thatan application for cancellation ofremoval may be filed only with theImmigration Court after jurisdiction hasvested pursuant to section 8 CFR 3.14.Section 3.14(a) provides thatjurisdiction vests when a chargingdocument is filed with the ImmigrationCourt by the Service. The practicalconcern raised by the commenters ariseif the Service serves Form I–862, Noticeto Appear, on a respondent but does notfile it with the Immigration Court. If theService does not file a notice to appearwhich has been served, a respondentwould not have access to theImmigration Court to obtain forms ofrelief such as cancellation of removal oradjustment of status. Moreover, theservice of the notice to appear will cutoff the accrual of time in continuousresidence or continuous physicalpresence for that respondent under newsection 240A(d)(1) of the Act. Thecommenters proposed that language beadded to § 3.14(a) of the regulationallowing for jurisdiction to vest and


proceedings to commence when acharging document is filed by theService or by a respondent. Thecommenters added that § 3.14(a) alreadypermits immigration judges to conductbond proceedings and credible feardeterminations without a chargingdocument being filed with the court.Thus, they assert, there is no rationalbasis to permit the initiation of thosetwo types of proceedings and not permitan immigration judge to consider anapplication for cancellation of removalafter a respondent files a chargingdocument that previously has beenserved on the respondent by the Service.The ability to file a charging documenthas rested exclusively with the Servicefor a number of years, without problem.This portion of the proposed regulationwill not be changed in the interim rule.The issue of the initiation of removalproceedings lies within theprosecutorial discretion of the Service.The Service needs to have control overwhen charging documents are filed withthe Immigration Courts in order to bestmanage its administrative resources.

Apprehension, Custody, and Detentionof Aliens

The IIRIRA extended the mandatorydetention provisions to additionalclasses of inadmissible and deportablealiens but provided an exception forcertain witnesses. It also allowed theAttorney General the option of atransition period for implementation ofmandatory detention. The Serviceexercised this discretion andimplemented the transition periodcustody rules on October 9, 1996,effective for 1 year. This interim ruleamends the regulations to comply withthe amended Act by removing therelease from custody provisions foraliens who may no longer be released.These amendments to the regulationswill take effect upon the termination ofthe transition period. As for non-criminal aliens, the rule reflects the new$1,500 minimum bond amountspecified by IIRIRA. Despite beingapplicants for admission, aliens who arepresent without having been admittedor paroled (formerly referred to as alienswho entered without inspection) will beeligible for bond and bondredetermination.

Several commenters complained thatthe Service has no national standards ofdetention. They stated that policies,practices, and decisions regardingoutside communication are bewildering,arbitrary, and inconsistent. Consistentwith its focus on providing safe, secure,and humane detention environments,the Service has implemented detentionfacility improvements and has set as a

goal the accreditation of each of itsfacilities. The Krome Service ProcessingCenter (SPC) has received accreditationwith commendation from the JointCommission of HealthcareOrganizations (JCHO), the mostprestigious medical accreditation thatcan be awarded. Currently, six SPCs areaccredited by the National Commissionon Correctional Health Care (NCCHC),and accreditation is pending at theremaining three SPCs. The Denvercontract facility is also NCCHCaccredited. Six contract facilities haveAmerican Correctional Association(ACA) accreditation and two othershave begun the accreditation process.

Several commenters stated that theService should require ACA standardsin local detention facilities used.Approximately 46 percent of thedetention space used by the Service iswith state and local facilities. FormalACA accreditation of a state or localfacility is a matter for the state or localgovernment. The Service could not meetits detention requirements by using onlyfacilities that have been formallyaccredited. The Service has establishedits own rigorous inspection programthat uses ACA standards for evaluationof a facility. The Service will not use afacility that fails to pass our inspection.

Several commenters stated that § 236of the proposed rule as written is areversal of long established procedurethat provides that a noncriminal alien ispresumptively eligible for release. TheService has been strongly criticized forits failure to remove aliens who are notdetained. A recent report by theDepartment of Justice Inspector Generalshows that when aliens are releasedfrom custody, nearly 90 percent abscondand are not removed from the UnitedStates. The mandate of Congress, asevidenced by budget enhancements andother legislation, is increased detentionto ensure removal. Accordingly, becausethe Service believes that the regulationas written is consistent with the intentof Congress, the interim rule has notmodified the proposed rule in thisregard.

Several commenters noticed adiscrepancy between the discussion inthe supplementary information and thesubstance of § 236.1(c)(5) of theproposed regulation. Thesupplementary information stated theDepartment’s intended approach, andclause (i) of the proposed regulation wasin error. Accordingly, the interim ruleremoves paragraph (c)(5)(i) of § 236.1and renumbers the remainingparagraphs (c)(5)(ii), (iii), and (iv). Theeffect of this change is that inadmissiblealiens, except for arriving aliens, haveavailable to them bond redetermination

hearings before an immigration judge,while arriving aliens do not. Thisprocedure maintains the status quoregarding release decisions for aliens inproceedings, as discussed in thesupplementary information of theproposed regulation.

One commenter stated that nocriminal alien may be released pursuantto the Transition Period Custody Rulesin section 303(b)(3) of IIRIRA wherethere is sufficient space to detain theindividual alien. The same commenterstated that it was not the intention ofCongress that EOIR continue to exercisebond redetermination authority underthe Transition Rules. Aside from theclasses of aliens covered by theTransition Rules, however, the basicstructure of the Rules is essentially thatof section 242(a)(2) of the Act as it stoodprior to AEDPA, providing for therelease of ‘‘lawfully admitted’’ criminalaliens (as well as unremovable criminalaliens), in the exercise of the AttorneyGeneral’s discretion, when such alienscan demonstrate the absence of a dangerto the community or a flight risk uponrelease. The Department intends to issuea separate proposed rule in the nearfuture establishing both substantivelimitations and procedural safeguardsconcerning the release of criminal alienseligible to be considered for releaseunder the Transition Rules.Accordingly, the interim rule has notbeen modified.

Expedited Deportation Procedures forAliens Convicted of AggravatedFelonies Who Are Not LawfulPermanent Residents

The interim rule amends the Service’sregulations to comply with the Act, asamended, by: including aliens who havelawful permanent residence on aconditional basis under section 216 ofthe Act as being subject to expeditedadministrative deportation procedures;removing references to prima facieeligibility for relief; and eliminatingreferences to release from custody, sincealiens subject to these proceedings arenow statutorily ineligible for release asa result of changes to other sections ofthe Act.

Several commenters addressed thetime period for response, the role of thedeciding Service officer, the risk ofdeporting U.S. citizens or permanentresidents, and other aspects of theprocedure. These procedures were notchanged from the regulation as it waswritten at § 242.25. These commentswere previously addressed when theregulation was published on August 24,1995.


Voluntary Departure and EmploymentAuthorization

The proposed rule outlined howvoluntary departure would be handledat various stages of proceedings. Sincenew section 240B of the Act and thecorresponding proposed regulationsrepresented a significant departure fromthe predecessor provisions for voluntarydeparture, public comments regardingthe Department’s approach toimplementation of this provision wereparticularly welcomed.

Several commenters wrote inopposition to the language in § 240.25providing that ‘‘[t[he Service may attachto the granting of voluntary departureany conditions it deems necessary toensure the alien’s timely departure fromthe United States.’’ Many based theiropposition on their contention that thelanguage was ‘‘beyond the scope of thelegislation.’’ However, a similarprovision already exists in regulation.The present § 242.5(b) states that‘‘officers * * * may deny or grant theapplication and determine theconditions under which the alien’sdeparture shall be effected.’’ Similarly,current § 244.1 states that voluntarydeparture may be authorized ‘‘undersuch conditions as the district directorshall direct.’’ Basically, the language ofthe proposed rule merely stated whatwas already in regulation. In addition, itis noted that voluntary departure is aprivilege granted by the Service and isnot an entitlement to be claimed by thealien. An alien must establish both thathe or she is statutorily eligible forvoluntary departure and that he or shemerits voluntary departure in theexercise of discretion. See Matter ofSeda, 17 I&N Dec. 550 (BIA 1980). Theability to attach conditions to a grant ofvoluntary departure is necessary to theService’s ability to consider the requestand is fully consistent with the intent ofCongress in enacting section 240B of theAct, which tightens the previouslyapplicable voluntary departureprovisions in order better to assureactual departure. Therefore, thelanguage will not be changed for theinterim rule.

Several commenters objected to themaximum time limits for voluntarydeparture of 120 days prior tocompletion of removal proceedings, and60 days at the completion of removalproceedings. Those commentersindicated that the statutory languagelimiting voluntary departure to 120 and60 days did not preclude aninterpretation authorizing additionalextensions of voluntary departure inincrements of 120 or 60 days. Severalcommenters, however, wrote in support

of the voluntary departure provisionscontained in the proposed rule. Onecommenter stated that ‘‘it would beunlawful to extend or renew voluntarydeparture beyond the single period of 60or 120 days specified in that section.’’Another commenter stated that ‘‘Thesechanges represent nothing more or lessthan what has been mandated byCongress, and there is no basis on whichthey can be substantively altered oramended in the promulgation of theinterim rule.’’

In its proper form, voluntarydeparture serves several functions. First,it allows the Service to allocate itsenforcement resources more efficientlythrough case management. Second, itsaves resources by allowing aliens todepart at their own expense rather thanat the expense of the government.Finally, it benefits the aliens involvedby allowing them to avoid the harshconsequences of a formal order ofremoval. Too often, however, voluntarydeparture has been sought and obtainedby persons who have no real intentionto depart. The IIRIRA was intended asa comprehensive reform of theimmigration system and wasspecifically designed to curb abuses ofvoluntary departure. A reading of thevoluntary departure provisions allowingfor extensions of voluntary departure inmultiple increments of 120 or 60 daysinconsistent with the purpose of thestatute and would be at best difficult toreconcile with the language of section240B of the Act.

Prior to IIRIRA, the authority forvoluntary departure was found insection 244(e) of the Act, whichcontained no time limitation. Now, forthe first time, there are statutoryrestrictions limiting the time for whichvoluntary departure may be authorized.The Conference Report on H.R. 2202stated that under section 240B(a) of theAct, ‘‘[p]ermission to depart voluntarilyunder this subsection shall not be validfor a period exceeding 120 days * * *.’’Similarly, the Conference Report statedthat under section 240B(b) of the Act,‘‘[t]he period for voluntary departurecannot exceed 60 days * * *. TheDepartment concludes that the totalperiod, including all extensions, maynot exceed 120 days for voluntarydeparture granted prior to completion ofproceedings or 60 days for voluntarydeparture granted at the conclusion ofproceedings.

Several commenters objected to theelimination of employmentauthorization for aliens who have beengranted voluntary departure. Severalother commenters wrote in favor of theelimination. Prior to April 1, 1997,voluntary departure was often granted

by EOIR and the Service for extendedperiods of time. With grants andextensions of voluntary departure forextended periods of time, it wasreasonable to allow for employmentauthorization. Now, voluntary departureis limited to a maximum of 120 days.Moreover, it has long been recognizedthat employment provides a magnet thatdraws aliens to this country. Voluntarydeparture provides an opportunity foran alien to complete the process ofdeparture from the United States andshould not be seen as a new opportunityfor employment authorization. Althoughthe granting of voluntary departure willnot, in and of itself, cause anypreviously approved employmentauthorization to be terminated, neitherwill the granting of voluntary departureprovide a new opportunity to apply foremployment authorization. Therefore,the interim rule will eliminate thegeneral provision found at§ 274a.12(c)(12) for employmentauthorization for aliens who have beengranted voluntary departure.Employment authorization will beretained only for beneficiaries of theFamily Unity Program (section 301 ofthe Immigration Act of 1990, Pub. L.101–649).

Several commenters expressedconcern about the consequences forcertain abused immigrant spouses andchildren of lawful permanent residentswith properly filed self-petitions whowere granted voluntary departure andwork authorization pending availabilityof an immigrant visa. The Departmentshares the concerns of the commentersand is looking at how best to addressthem outside the context of voluntarydeparture.

Several commenters objected to theprovisions for appeals, generally statingthat the Service could appeal approvals,yet aliens cannot appeal denials. In§ 240.25 (voluntary departure by theService), the appeal procedure atparagraph (e) states that a denial of anapplication for voluntary departure maynot be appealed, but such denial shallbe without prejudice to the alien’s rightto apply to the immigration judge inaccordance with § 240.26. Section240.26(g)(1) (voluntary departure byEOIR) places limitations for appealsonly on the Service, and places none onthe alien. Section 240.26(g)(2) discussesan appeal of a grant or denial ofvoluntary departure. Therefore, theappeal procedures in §§ 240.25(e) and240.26(g)(1) and (2) do not allow theService to appeal approvals whileprecluding aliens from appealingdenials. In reviewing the comments,however, it became apparent that thelanguage of 240.26(g) appeared to


prohibit the Service from appealing agrant of voluntary departure on theground that the alien was not eligible forthe relief. Any such implication wasunintended, and the language has beencorrected to reflect that both the alienand the Government may appeal issuesof both eligibility and discretion, butthat neither may appeal the length of thevoluntary departure period granted bythe immigration judge.

One commenter expressed concernabout the dangerous intersectionbetween the voluntary departure timelimits and new section 212(a)(9)(B) ofthe Act, which imposes a 3- to 10-yearbar to admission upon any alienunlawfully present in the United Statesfrom 180 days to more than 1 year. Thecommenter pointed out that individualsnow granted voluntary departure forextended periods of time forhumanitarian reasons will becomeunlawfully present after 120 days ofvoluntary departure. The commenterstated that if deferred action is to be thesole avenue of relief, the Service needsto develop policy guidelines so thatdistrict directors will not be afraid touse it to enable the sick and the dyingto receive treatment and to enable theirparents to work for health insurance.The Department acknowledges thatthere will be some compellinghumanitarian cases for which voluntarydeparture cannot be extended. A districtdirector will be able to give individualconsideration for a recommendation fordeferred action to the regional director.If approved by the regional director,employment authorization may begranted under the provisions of§ 274a.12(c)(14).

Several commenters objected to theprovision for revocation found in§ 240.25(f), and stated that revocation ofvoluntary departure should requirenotice and the opportunity to be heard.However, this provision already existsin the current § 242.5(c), which providesfor revocation of a grant of voluntarydeparture without notice. Therevocation is an adverse action initiatedby the Service; therefore, personalservice of the decision is required inaccordance with § 103.5a(c). However, anotice of intent to revoke will not beissued. The interim rule will beamended to point out that therevocation shall be communicated inwriting, and shall cite the statutory basisfor revocation.

Several commenters objected to thelimits in § 240.26(b)(1) on grants ofvoluntary departure under section240B(a) of the Act, particularly therequirement that a request for suchrelief be made at or before a mastercalendar hearing, and decided by the

immigration judge within 30 daysthereafter. Other commenters stated thatthese provisions were confusing.

The regulation has not been changedsubstantively based on these commentsbut has been revised to clarify theapplicable time periods. The revisionsmake it clear that in order to obtainvoluntary departure from animmigration judge under section240B(a) of the Act, an alien must requestit prior to or at the master calendarhearing at which the case is initiallycalendared for a merits hearing, whichis not necessarily the first mastercalendar hearing. This ensures that thealien is not obligated to requestvoluntary departure at preliminarystages of the process, before the case isready to be scheduled for a meritshearing. The Department believes thatthis allows sufficient time for the aliento consider voluntary departure andother options and to discuss them withcounsel. If such requests cannot beresolved at the master calendar hearingthe immigration judge may take anadditional 30 day period in case he orshe desires additional time to considerthe voluntary departure request or tocomplete the processing. In the eventthat the alien decides only after thespecified master calendar hearing thathe or she wishes to request voluntarydeparture, such a request can still bemade later, but requires the concurrenceof the Service under § 240.26(b)(2).Finally, even without Serviceconcurrence, the immigration judge maygrant voluntary departure under section240B(b) of the Act upon conclusion ofthe proceeding.

Several commenters objected to thelanguage at § 240.26(b)(1)(iv)authorizing the grant of voluntarydeparture by immigration judgespursuant to section 240B(a) of the Actonly if the alien waives appeal of allissues. The Department believes thatvoluntary departure authorized byimmigration judges prior to completionof proceedings should be for thepurpose of settling cases in the interestsof economy and justice. If an alienwishes to contest any issues, the properforum will be a merits hearing. Once acase proceeds to a merits hearing andcontested issues are settled, voluntarydeparture remains a form of relief;however, it may be authorized onlypursuant to the provisions of section240B(b) of the Act for voluntarydeparture granted at the completion ofremoval proceedings.

Several commenters wrote that theregulation should provide an exemptionfor an alien who would otherwise havea removal order issued against him orher for failing to depart when the alien,

through no fault of his own, has notobtained travel documents. Theregulation already provides, at§ 240.26(b)(3)(ii), that the Service in itsdiscretion may extend the period withinwhich the alien must provide suchdocumentation. However, the provisionfor extension is discretionary and not anentitlement. The alien in removalproceedings bears the responsibility todemonstrate eligibility for any reliefrequested. The alien is encouraged towork with the government of his or herhome country to obtain a valid passportor other travel authorization if a traveldocument is necessary for return to thatcountry. Failure to obtain necessarytravel documentation will leave theDepartment no option but to enforce thealternate order of removal.

Several commenters pointed out thatin a case involving an alien who waspreviously granted voluntary departureand failed to depart, the proposedregulation correctly reflects the statutorylanguage that such an alien is noteligible for voluntary departure or reliefunder sections 240A, 245, 248, and 249of the Act. The commenters pointed out,however, that the proposed regulationfails to include the statutoryrequirement that the alien must receivenotice of the penalty for failing todepart. The Department agrees with thecommenters, and will change thelanguage in the interim rule to reflectthe requirement that a voluntarydeparture order permitting an alien todepart voluntarily shall inform the alienof the penalties under section 240B(d) ofthe Act.

Sections 240B(a)(1) and 240B(b)(1)(C)of the statute bar aliens deportableunder section 237(a)(2)(A)(iii) of the Actfrom voluntary departure. Becausealiens entering without inspection areno longer considered deportable,however, the statutory bar might be readas allowing such aliens to obtainvoluntary departure despite anaggravated felony conviction. Thestatute would thus create the anomaly ofmore favorable treatment for aggravatedfelons who enter without inspection.The Department does not believe thatCongress intended such an anomaly. Inany event, having become aware of theproblem, the Department now exercisesits discretion to bar such aliens fromreceiving this form of relief.

Finally, several commenters requestedclarification regarding the effect of amotion or appeal to the ImmigrationCourt, BIA, or a federal court on anyperiod of voluntary departure alreadygranted. Since an alien grantedvoluntary departure prior to completionof proceedings must concederemoveability and agree to waive


pursuit of any alternative form of relief,no such appeal or motion would bepossible in this situation. Regardingpost-hearing voluntary departure, theDepartment considered several options,but has not adopted any position ormodified the interim rule. TheDepartment has identified three possibleoptions: no tolling of any period ofvoluntary departure; tolling thevoluntary departure period for anyperiod that an appeal or motion ispending; or setting a brief, fixed periodof voluntary departure (for example, 10days) after any appeal or motion isresolved. The Department wishes tosolicit additional public comments onthese or other possible approaches tothis issue so that it can be resolvedwhen a final rule is promulgated.

Detention and Removal of AliensOrdered Removed

This rule provides for the assumptionof custody during the removal period,allows detention beyond the period, andprovides conditions for discretionaryrelease and supervision of aliens whocannot be removed during the period.

Several commenters stated that thewording of the statute provides forrelease of noncriminal aliens during theremoval period and suggested that theService adopt a policy of allowing thealien to remain at liberty during the 90-day removal period. One commenterstated that the proposed rule isconsistent with the language and intentof IIRIRA and should be retained in theinterim rule. The plain language of thestatute requires that an alien be held incustody during the 90-day removalperiod and not be released. Accordingly,the proposed language is retained in theinterim rule.

Several commenters stated that thestatute requires release on an order ofsupervision after the expiration of the90-day removal period. One commenterstated that the proposed rule isconsistent with the language and intentof IIRIRA and should be retained in theinterim rule. Taken together, sections241(a)(3) and (a)(6) of the Act providethat any alien who is inadmissible orwho is deportable on the groundsenumerated in paragraph (a)(6) may bedetained beyond the removal period.Additionally, any alien who is a risk tothe community or is unlikely to appearfor removal may be detained regardlessof the charge of inadmissibility ordeportability. Accordingly, theproposed language is retained in theinterim rule.

Reinstatement of Removal OrdersAgainst Aliens Illegally Reentering

Several commenters suggested thataliens caught illegally reentering theUnited States after removal should beprovided a hearing before animmigration judge. They expressedconcern that issues such as identity andthe propriety of the earlier removalorder would not be addressed. Onecommenter argued that new section241(a)(5) of the Act was not intended tobe a substantive revision of formersection 242(f) of the Act, which alsodealt with reinstatement of deportationorders, but was merely taken from a billproposing to recodify the Act withoutsubstantive change. One commenterwrote in support of these provisions,stating that they were consistent withthe language and intent of IIRIRA.

A review of the relevant statutoryprovisions reveals that a substantivechange was in fact effected in thetransition from section 242(f) of the Actto section 241(a)(5) of the Act. Section242(f) of the Act provided only that thedeportation order was to be reinstatedupon illegal entry. New section241(a)(5) of the Act provides that theremoval order is reinstated from itsoriginal date, but adds the provision‘‘and is not subject to being reopened orreviewed.’’

The Service has taken steps to ensurethe positive identification of an alienapprehended and removed under thissection. In § 241.8(a)(2), the regulationrequires fingerprint identification beforean alien can be removed under section241(a)(5) of the Act. In cases where nofingerprints are available and the aliendisputes that he or she was previouslyremoved, the alien will not be removedunder section 241(a)(5) of the Act.Because the process mandated by theproposed rule adequately addresses theconcerns expressed by the commenters,this provision remains unchanged in theinterim rule.

Detention and Removal of Stowaways

Section 241.11 implements section305 of IIRIRA, defining theresponsibilities for stowaways and costsof detention in the new section 241 ofthe Act. All stowaways are deemed to beinadmissible under the Act and are notentitled to a hearing on admissibility.Those with a credible fear ofpersecution may seek asylum inaccordance with 8 CFR part 208 inspecial proceedings before animmigration judge. The statute is veryspecific regarding most detention andremoval responsibilities of the carriers.

Several commenters stated that theregulations do not contain a definition

of stowaway. Since IIRIRA added a cleardefinition of stowaway in section101(a)(49) of the Act, the Departmentsaw no need to repeat the definition inthe regulations. One commenterobjected to the 15-day detention periodfor asylum-seeking stowaways, forwhich the owner of the vessel or aircraftbringing the stowaway is obligated forthe costs of detention. As this timeframe is mandated by statute in section241(c)(3)(A)(ii)(III) of the Act, theDepartment is bound by it.

One commenter suggested that theregulation clearly define the situationswhere the Service should allow thecarrier to remove, by aircraft, astowaway who arrived by vessel. Theregulation at § 241.11(c)(1) has beenamended to include generalcircumstances where the Service mightfavorably consider such request. Thesecircumstances will also be morethoroughly addressed in the Inspector’sField Manual.

One commenter stated that theregulations should define how theService will make a determination thatthe necessary travel documents for thestowaway cannot be obtained, so as toshift the costs of the stowaway’sdetention from the carrier to the Service,as stated in section 241(c)(3)(A)(ii)(II) ofthe Act. The Department has not hadsufficient time to consider this issue andso will address it in the final rule.

Adjustment of StatusSome commenters objected to the

policy statement contained in theproposed rule that amended§ 245.1(c)(8) and indicated that, as anexercise of discretion, the AttorneyGeneral would not adjust the status ofarriving aliens ordered removed undersection 235(b)(1) of the Act or inproceedings under section 240 of theAct. Those commenters believed thatsuch a statement exceeded the AttorneyGeneral’s authority by eliminating animmigration benefit that has not beeneliminated by an act of Congress. Othercommenters suggested that the policystatement did not go far enough and thatthe policy should be expanded toinclude all inadmissible aliens insection 240 proceedings, not justarriving aliens. In this interim rule, theDepartment will maintain the positiontaken in the proposed rule. Thisposition promotes the Department’sobjective of taking steps to preserve theintegrity of the visa issuance processwhile preserving the current additionalavenue for review of discretionarydenials of adjustment applications filedby aliens present without inspectionand admission. The Departmentcontinues to believe this position is


consistent with the intent of Congresswhen it passed IIRIRA.

In response to the commenters whosuggested this policy exceeded theAttorney General’s statutory authority, itis noted that section 245 of the Actclearly and unambiguously states thatadjustment of status is a discretionarydecision, subject to such regulatorylimitations as the Attorney General mayprescribe. The same commenters statedthat aliens who depart using an advanceparole authorization and whoseapplications are subsequently deniedwould no longer be able to renew theiradjustment application before animmigration judge. However, therevisions to § 245.2(a)(5)(ii) contained inthe proposed rule preserved thisprocedure.

Rescission of Adjustment of StatusThe interim rule includes several

changes to 8 CFR part 246 that updateobsolete references and bring theregulation into agreement with thestatute. References to special inquiryofficer were updated to refer toimmigration judges. References to statusof permanent residence acquiredthrough outdated sections of law, andany related procedures for special reportto Congress, were eliminated. In § 246.2,the provision that limited the rescissionauthority of the district director to casesthat had been adjusted under section245 of 249 or the Act was expanded toinclude all types of adjustment, therebybringing the regulation into accord withthe statute. In § 246.6, the requirementsfor immigration judges’ decisions werechanged to comport with therequirements of immigration judges’decisions found in § 240.12. Thereference to Form I–151 in § 246.9 wasremoved because Form I–151 is nolonger a valid document.

Elimination of Mexican Border Visitor’sPermit

The proposed rule eliminated theForm I–444, Mexican Border Visitor’sPermit, which is issued at land borderports-of-entry along the United States/Mexico border to Mexican nationalstraveling for more than 72 hours but lessthan 30 days in duration or for morethan 25 miles from the United States/Mexico border but within the five statesof Arizona, California, Nevada, NewMexico, or Texas. The elimination wasproposed because the Form I–444 doesnot have adequate security features todeter counterfeiting, and provides notracking or enforcement benefits.

One commenter suggested that sincethe elimination of the Form I–444 wasnot mandated by IIRIRA andrepresented a significant departure from

past procedure, it should be removedfrom this rule and proposed in aseparate rulemaking. The commenterspecifically objected to the eliminationof the time and distance controlsimposed on Mexican nationals inherentin the issuance of the Form I–444. Asstated in the proposed rule, the Servicehas been unable to demonstrate thatthere is any connection between thelimits on travel by persons issued FormsI–444 and immigration violations.Mexican nationals must undergo thesame interview process to obtain aBorder Crossing Card (BCC) ornonimmigrant visa as any otherapplicant from any other country. Newvalidity periods have been imposed inrecent years on the BCC, requiringperiodic renewal. A Mexican nationalentering with a BCC undergoes the sameinspection process as any otherapplicant for admission and mustestablish eligibility as a visitor forbusiness or pleasure upon each entry tothe United States. Presently, Mexicannationals who request entry at aMexican land border port-of-entry totravel more than 30 days or beyond thefive-state area, and who establishadmissibility as a visitor, are issuedForm I–94, Arrival/Departure Record,and allowed to proceed anywhere in theUnited States with no additionalrestrictions. Mexican BCC holdersentering the United States by air or viathe Canadian land border are alsoadmitted with no restrictions. Theelimination of the Form I–444 does notexpand the possible use of the BCC inany way; it merely standardizes theentry documentation issued. TheDepartment can see no reason tocontinue to impose specific controls onMexican nationals seeking admissiononly at Mexican border ports-of-entry,and so accordingly will retain in theinterim rule the elimination of Form I–444 in favor of more thoroughlydocumenting entry with Form I–94.

Visa Waiver Pilot Program (VWPP)The provisions relating to the VWPP

in 8 CFR part 217 were included in theproposed rule primarily as part of thereview intended to streamline andeliminate duplication in Departmentregulations. In addition, several changeswere made to conform to new statutoryterminology and to include certain newprocedures created as a result of IIRIRA.One commenter expressed concern thatthere could be confusion in § 217.4 as towhat constitutes fraudulent orcounterfeit documents and that alienscould be removed without theopportunity for review by animmigration judge. The language in thissection was not changed from what has

existed in the regulations for years.Moreover, aliens applying under theVWPP are, by statute, not entitled to ahearing before an immigration judge,except on the basis of an asylum claim.The only change that the proposed rulemade to this provision was that thehearing provided for VWPP asylumclaimants is now more clearly limited toasylum issues only. In addition,inadmissible VWPP applicants may betemporarily refused permission to enterthe United States, but are not subject tothe formal expedited removal provisionsof section 235(b)(1) of the Act.

One commenter objected to severalaspects of the amended language in§ 217.6 relating to carrier agreements.Since most of the language in thissection is already contained on theForm I–775, Visa Waiver Pilot ProgramAgreement, which is signed by allcarriers participating in the VWPP,much of this section has been removedfrom the interim rule. The commenterobjected to the elimination of dueprocess safeguards in allowingtermination of agreements by theCommissioner, with 5 days notice to thecarrier, for failure to meet the terms ofthe agreement. This is not a newprovision. The exact language hasexisted in the regulations since at least1991 and has also been part of theexisting Form I–775 for years, and willbe retained. The definition of round(return) trip ticket has been revised toconform with terminology usedelsewhere in the regulation and carrieragreement, and to provide for electronicticketing technology.

Miscellaneous ChangesThe proposed rule contemplated

removing 8 CFR part 215, Controls ofAliens Departing from the United States,because it was also contained in theDepartment of State regulations. TheDepartment has decided to retain 8 CFRpart 215.

The proposed rule contained § 240.39,which retained material previouslyfound in § 242.22, and § 240.54, whichpreserved the former § 242.23. Thesesections have been removed from theinterim rule since the subjects areencompassed by §§ 3.23 and 241.8,respectively.

One commenter correctly noted that§ 216.5(e)(3)(ii) had been amended toallow an alien in exclusion, deportation,or removal proceedings to file a petitionfor waiver only until such time as thereis a final order of deportation orremoval. In § 216.5(e)(3), adjudication ofa waiver is based upon the alien’s claimof having been battered or subjected toextreme mental cruelty. The commenterstated that there is no reason to shorten


the period allotted for a battered womanand child to file a battered spousewaiver. The proposed rule change wasmeant to apply generally to all aliensfiling a petition for a waiver, and wasintended to add a point of finality to thetime when the petition could be filed.Therefore, the interim rule has beenamended to clarify the generalapplicability to all petitions for waiver.The regulation will permit filing of apetition for waiver at any time prior tothe second anniversary of obtainingpermanent resident status and up to thepoint of receiving a final order inexclusion, deportation, or removalproceedings, which includes anypossible Federal court review.

Several commenters were concernedabout removing language at§ 204.2(a)(1)(iii)(A) through (C), whichdealt with commencement andtermination of proceedings, andexemptions from the general prohibitionagainst approval of visa petitions filedon the basis of marriages duringproceedings. The language was removedas part of the Service’s streamlininginitiative because it was duplicative oflanguage in § 245.1(c)(8). The interimrule does clarify that in visa petitionproceedings the burden of proof remainson the petitioner to establish eligibilityfor the exemption found at section204(g) of the Act. In addition,§ 204.2(a)(1)(iii) introductory text hasbeen amended reflecting that§ 245.1(c)(8) has been renumbered as§ 245.1(c)(9).

Streamlining, Updating, andReorganization

Several commenters expressedconcern about sections of the regulationthat were identified in theSupplementary Information of theproposed regulation as being revisedsolely for the purpose of streamlining:elimination of unnecessary recitation ofstatutory provisions; discussion ofprocedural matters; elimination ofduplication; or general updating. It isemphasized that these streamliningchanges neither created newrequirements nor abolished any existingones. Similarly, several commentsconcerned regulatory provisions thatwere simply carried over from theexisting regulation, but relocated to newsections in order to conform with thegeneral regulatory outline for theaffected sections. Although theDepartment reviewed these comments,none resulted in further amendments tothe streamlined or reorganizedparagraphs. Other commenters proposedchanges to current regulations that arebeyond the scope of this rulemaking.These suggestions will be considered for

inclusion in separate regulations afterimplementation of IIRIRA.

The Department solicited commentson the general organization andrestructuring contained in the proposedregulation. No comments were receivedon this topic. Accordingly, theorganizational structure has not beenrevised in the interim rule.

Regulatory Flexibility ActThe Attorney General, in accordance

with the Regulatory Flexibility Act (5U.S.C. 605(b)), has reviewed thisregulation and, by approving it, certifiesthat the rule will not have a significantadverse economic impact on asubstantial number of small entitiesbecause of the following factors. Thisrule affects only federal governmentoperations by codifying statutoryamendments to the Immigration andNationality Act primarily regarding theexamination, detention, and removal ofaliens from the United States. It affectsonly individuals and does not imposeany reporting or compliancerequirements on small entities.

Unfunded Mandates Reform Act of1995

This rule will not result in theexpenditure by State, local and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year, and it will notsignificantly or uniquely affect smallgovernments. Therefore, no actions weredeemed necessary under the provisionsof the Unfunded Mandates Reform Actof 1995.

Executive Order 12866This rule is considered by the

Department of Justice to be a‘‘significant regulatory action’’ underExecutive Order 12866, section 3(f),because it will have a significanteconomic impact on the federalgovernment in excess of $100 million.No economic impact is anticipated forstate and local governments. TheService projects significant increases indetention-related costs due to theprovisions of IIRIRA that mandate thecustody of criminal aliens who havecommitted two or more crimesinvolving moral turpitude, aliensconvicted of firearms offenses, andaliens who have been convicted of anaggravated felony. The type of crimethat will qualify as an ‘‘aggravatedfelony’’ has been greatly expandedunder IIRIRA. In addition, all aliens,even non-criminal aliens, who aresubject to a final administrative order ofremoval must be held in custody untilthe alien can be removed from theUnited States. If the person is not

removed within 90 days he or she maybe released from custody.

The Commissioner has notifiedCongress pursuant to section 303(b) ofIIRIRA that the Service lacks sufficientspace to immediately implement themandatory custody provisions. Thisnotification will delay for 1-year fullimplementation of the new mandatorycustody provisions. Section 303(b) alsoprovides for an additional 1-year delayin implementation of the mandatorycustody provisions upon a secondcertification that space and personnelare inadequate to comply with therequirement. The Service estimates thatthe cost to enforce the requirement todetain all criminal aliens will be at least$205,000,000. Of that total, personnelcosts account for $65,284,000 andinclude detention and deportationofficers ($32,873,000), investigators($25,501,000), legal proceedingspersonnel ($4,968,000), andadministrative support ($1,942,000).Non-personnel requirements areprojected to be at least $139,732,000 andincludes increases in bed space andrelated alien custody requirements($82,782,000—funds 3,600 beds @$63.00 per day), increases in alien travelexpenses ($36,000,000—3,600 removals@ $1,000 each), and detention vehicleexpenses ($20,950,000). The Service iscurrently in the process of projecting thecosts of the IIRIRA requirement that wedetain all aliens with administrativelyfinal orders of deportation pending theirremoval.

In addition to these detention relatedcosts, the Service estimates that theexpenses for training employees on theprovisions of the new law and theregulations will be $2,977,500. The costto the Service related to additionalforms or changes needed to currentforms is estimated to be $2,000,000(until the final list of form requirementsis completed it is not possible to moreaccurately assess this cost). Finally, theDepartment believes there may be someincreases needed for immigration judgesto review credible fear determinationsmade under section 235(b) of the Act.

The EOIR estimates increases in itscosts related to IIRIRA-mandatedimmigration judge review of crediblefear determinations (which must bemade under stringent time frames) andthe prompt immigration judge reviewthat IIRIRA requires of certain expeditedremoval orders entered against aliensclaiming to be, lawful permanentresidents, asylees, or refugees. Further,EOIR projects costs associated with thepossible need for an Immigration Courtpresence at certain ports-of-entry andadditional detention centers, which willresult from the above-mentioned


credible fear review and expeditedremoval review process. Also, there willbe costs related to the overall need foran increased Immigration Courtpresence at existing Service detentioncenters to support the processing of theadditional detainees that will resultfrom the implementation of this rule.Similarly, EOIR anticipates a need forconstruction of new Immigration Courtsat new detention facilities the Servicemay open as a result of this rule’simplementation.

Although there are still a number ofunknown variables which could effectthe total costs to EOIR to implement itspart of the new expedited removalprocess and to respond to the increasednumber of detained individuals inproceedings under this rule, EOIRestimates that the total annual cost forEOIR could be as high as $25,000,000.Of that total, the cost for hiring newimmigration judges and legal supportstaff is projected to be $21,300,000. Thecost for new video and audioteleconferencing equipment is estimatedat $3,000,000. Training costs areexpected to be approximately $400,000.Finally, forms and other supportrequirements are estimated to cost$300,000.

Small Business Regulatory EnforcementFairness Act of 1996

The Department of Justice considersthis rule to be a ‘‘major’’ rule under theSmall Business Regulatory EnforcementFairness Act of 1996 in view of theprojected expenditures for the federalgovernment as discussed in thepreceding section. The Departmentfinds good cause to make this ruleeffective on April 1, 1997, in order tomeet the statutory deadline. These rulesare essential for the implementation ofthe provisions of Title III-A of IIRIRA,which become effective on that datepursuant to Section 309(a) of IIRIRA.

Executive Order 12612

The regulation adopted herein willnot have substantial direct effects on theStates, on the relationship between theNational Government and the States, oron the distribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 12612,it is determined that this rule does nothave sufficient Federalism implicationsto warrant the preparation of aFederalism Assessment.

Executive Order 12988

This interim rule meets the applicablestandards set forth in section 3(a) and3(b)(2) of Executive Order 12988.

Paperwork Reduction ActThe information collection

requirements contained in this rule havebeen approved by the Office ofManagement and Budget under theprovisions of the Paperwork ReductionAct. The OMB control numbers for thesecollections are contained in 8 CFR299.5, Display of control numbers.

List of Subjects

8 CFR Part 1Administrative practice and

procedure, Immigration.


procedure, Immigration, Organizationand functions (Government agencies).


procedure, Authority delegations(Government agencies), Reporting andrecordkeeping requirements.


procedure, Immigration, Reporting andrecordkeeping requirements.


procedure, Refugees, Reporting andrecordkeeping requirements.


procedure, Aliens, Immigration,Reporting and recordkeepingrequirements.

8 CFR Part 209Aliens, Immigration, Refugees.

8 CFR Part 211Immigration, Passports and visas,

Reporting and recordkeepingrequirements.


procedure, Aliens, Immigration,Passports and visas, Reporting andrecordkeeping requirements.

8 CFR Part 213Immigration, Surety bonds.


procedure, Aliens.


procedure, Aliens.

8 CFR Part 217Air carriers, Aliens, Maritime carriers,

Passports and visas.

8 CFR Part 221

Aliens, Surety bonds.

8 CFR Part 223

Aliens, Reporting and recordkeepingrequirements.

8 CFR Part 232

Aliens, Public health.

8 CFR Part 233

Administrative practice andprocedure, Air carriers, Governmentcontracts, Travel.

8 CFR Part 234

Air carriers, Aircraft, Airports, Aliens.

8 CFR Part 235

Administrative practice andprocedure, Aliens, Immigration,Reporting and recordkeepingrequirements.

8 CFR Part 236

Administrative practice andprocedure, Aliens, Immigration.

8 CFR Part 237

Aliens.

8 CFR Part 238

Administrative practice andprocedure, Aliens.

8 CFR Part 239

Administrative practice andprocedure, Aliens, Immigration,Reporting and recordkeepingrequirements.

8 CFR Part 240


8 CFR Part 241


8 CFR Part 242


8 CFR Part 243


8 CFR Part 244


8 CFR Part 245

Aliens, Immigration, Reporting andrecordkeeping requirements.

8 CFR Part 246



8 CFR Part 248Aliens, Immigration, Reporting and

recordkeeping requirements.

8 CFR Part 249Aliens, Immigration, Reporting and


8 CFR Part 251Air carriers, Aliens, Crewmen,

Maritime carriers, Reporting andrecordkeeping requirements.

8 CFR Part 252Air carriers, Airmen, Aliens,

Crewmen, Maritime carriers, Reportingand recordkeeping requirements.

8 CFR Part 253Air carriers, Airmen, Aliens, Maritime

carriers, Reporting and recordkeepingrequirements, Seamen.

8 CFR Part 274aAdministrative practice and

procedure, Aliens, Employment,Penalties, Reporting and recordkeepingrequirements.

8 CFR Part 286Air carriers, Immigration, Reporting

and recordkeeping requirements.

8 CFR Part 287Immigration, Law enforcement

officers.

8 CFR Part 299Immigration, Reporting and


8 CFR Part 316Citizenship and naturalization,

Reporting and recordkeepingrequirements.

8 CFR Part 318Citizenship and naturalization.

8 CFR Part 329Citizenship and naturalization,

Military Personnel, Veterans.Accordingly, chapter I of title 8 of the

Code of Federal Regulations is amendedas follows:

PART 1—DEFINITIONS

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

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

2. Section 1.1 is amended by revisingparagraph (l), and by adding newparagraphs (q) through (t) to read asfollows:

§ 1.1 Definitions.

* * * * *(l) The term immigration judge means

an attorney whom the Attorney General

appoints as an administrative judgewithin the Executive Office forImmigration Review, qualified toconduct specified classes ofproceedings, including a hearing undersection 240 of the Act. An immigrationjudge shall be subject to suchsupervision and shall perform suchduties as the Attorney General shallprescribe, but shall not be employed bythe Immigration and NaturalizationService.* * * * *

(q) The term arriving alien means analien who seeks admission to or transitthrough the United States, as providedin 8 CFR part 235, at a port-of-entry, oran alien who is interdicted ininternational or United States watersand brought into the United States byany means, whether or not to adesignated port-of-entry, and regardlessof the means of transport. An arrivingalien remains such even if paroledpursuant to section 212(d)(5) of the Act.

(r) The term respondent means aperson named in a Notice to Appearissued in accordance with section 239(a)of the Act, or in an Order to Show Causeissued in accordance with § 242.1 of thischapter as it existed prior to April 1,1997.

(s) The term Service counsel meansany immigration officer assigned torepresent the Service in any proceedingbefore an immigration judge or theBoard of Immigration Appeals.

(t) The term aggravated felony meansa crime (or a conspiracy or attempt tocommit a crime) described in section101(a)(43) of the Act. This definition isapplicable to any proceeding,application, custody determination, oradjudication pending on or afterSeptember 30, 1996, but shall applyunder section 276(b) of the Act only toviolations of section 276(a) of the Actoccurring on or after that date.

PART 3—EXECUTIVE OFFICE FORIMMIGRATION REVIEW

3. The authority citation for part 3continues 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 revisingparagraphs (b)(1), (b)(2), (b)(3), (b)(7),(b)(9), and (b)(10) to read as follows:

§ 3.1 General authorities.

* * * * *(b) * * *(1) Decisions of Immigration Judges in

exclusion cases, as provided in 8 CFRpart 240, Subpart D.

(2) Decisions of Immigration Judges indeportation cases, as provided in 8 CFRpart 240, Subpart E, except that noappeal shall lie seeking review of alength of a period of voluntarydeparture granted by an ImmigrationJudge under section 244E of the Act asit existed prior to April 1, 1997.

(3) Decisions of Immigration Judges inremoval proceedings, as provided in 8CFR part 240, except that no appealshall lie seeking review of the length ofa period of voluntary departure grantedby an immigration judge under section240B of the Act or part 240 of thischapter.* * * * *

(7) Determinations relating to bond,parole, or detention of an alien asprovided in 8 CFR part 236, Subpart Aand 8 CFR part 240, Subpart E.* * * * *

(9) Decisions of Immigration Judges inasylum proceedings pursuant to§ 208.2(b) of this chapter.

(10) Decisions of Immigration Judgesrelating to Temporary Protected Statusas 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 byd. Revising paragraphs (d) through

(g)(1), to read as follows:

§ 3.2 Reopening or reconsideration beforethe Board of Immigration Appeals.

* * * * *(b) * * *(2) A motion to reconsider a decision

must be filed with the Board within 30days after the mailing of the Boarddecision or on or before July 31, 1996,whichever is later. A party may file onlyone motion to reconsider any givendecision and may not seekreconsideration of a decision denying aprevious motion to reconsider. Inremoval proceedings pursuant to section240 of the Act, an alien may file onlyone motion to reconsider a decision thatthe alien is removable from the UnitedStates.

(c) * * *(2) Except as provided in paragraph

(c)(3) of this section, a party may fileonly one motion to reopen deportationor exclusion proceedings (whetherbefore the Board or the ImmigrationJudge) and that motion must be filed nolater than 90 days after the date onwhich the final administrative decisionwas rendered in the proceeding soughtto be reopened, or on or beforeSeptember 30, 1996, whichever is later.Except as provided in paragraph (c)(3)


of this section, an alien may file onlyone motion to reopen removalproceedings (whether before the Boardor the Immigration Judge) and thatmotion must be filed no later than 90days after the date on which the finaladministrative decision was rendered inthe proceeding sought to be reopened.

(3) In removal proceedings pursuantto section 240 of the Act, the timelimitation set forth in paragraph (c)(2) ofthis section shall not apply to a motionto reopen filed pursuant to theprovisions of § 3.23(b)(4)(ii). The timeand numerical limitations set forth inparagraph (c)(2) of this section shall notapply to a motion to reopenproceedings:

(i) Filed pursuant to the provisions of§ 3.23(b)(4)(iii)(A)(1) or§ 3.23(b)(4)(iii)(A)(2);

(ii) To apply or reapply for asylum orwithholding of deportation based onchanged circumstances arising in thecountry of nationality or in the countryto which deportation has been ordered,if such evidence is material and was notavailable and could not have beendiscovered or presented at the previoushearing;

(iii) Agreed upon by all parties andjointly filed. Notwithstanding suchagreement, the parties may contest theissues in a reopened proceeding; or

(iv) Filed by the Service in exclusionor deportation proceedings when thebasis of the motion is fraud in theoriginal proceeding or a crime thatwould support termination of asylum inaccordance with § 208.22(f) of thischapter.* * * * *

(d) Departure, deportation, orremoval. A motion to reopen or amotion to reconsider shall not be madeby or on behalf of a person who is thesubject of exclusion, deportation, orremoval proceedings subsequent to hisor her departure from the United States.Any departure from the United States,including the deportation or removal ofa person who is the subject of exclusion,deportation, or removal proceedings,occurring after the filing of a motion toreopen or a motion to reconsider, shallconstitute a withdrawal of such motion.

(e) Judicial proceedings. Motions toreopen or reconsider shall state whetherthe validity of the exclusion,deportation, or removal order has beenor is the subject of any judicialproceeding and, if so, the nature anddate thereof, the court in which suchproceeding took place or is pending,and its result or status. In any case inwhich an exclusion, deportation, orremoval order is in effect, any motion toreopen or reconsider such order shall

include a statement by or on behalf ofthe moving party declaring whether thesubject of the order is also the subjectof any pending criminal proceedingunder the Act, and, if so, the currentstatus of that proceeding. If a motion toreopen or reconsider seeks discretionaryrelief, the motion shall include astatement by or on behalf of the movingparty declaring whether the alien forwhose relief the motion is being filed issubject to any pending criminalprosecution and, if so, the nature andcurrent status of that prosecution.

(f) Stay of deportation. Except wherea motion is filed pursuant to theprovisions of §§ 3.23(b)(4)(ii) and3.23(b)(4)(iii)(A), the filing of a motionto reopen or a motion to reconsider shallnot stay the execution of any decisionmade in the case. Execution of suchdecision shall proceed unless a stay ofexecution is specifically granted by theBoard, the Immigration Judge, or anauthorized officer of the Service.

(g) Filing procedures. (1) Englishlanguage, entry of appearance, and proofof service requirements. A motion andany submission made in conjunctionwith a motion must be in English oraccompanied by a certified Englishtranslation. If the moving party, otherthan the Service, is represented, FormEOIR–27, Notice of Entry of Appearanceas Attorney or Representative Before theBoard, must be filed with the motion. Inall cases, the motion shall include proofof service on the opposing party of themotion and all attachments. If themoving party is not the Service, serviceof the motion shall be made upon theOffice of the District Counsel for thedistrict in which the case wascompleted before the ImmigrationJudge.* * * * *

6. The following sentence is added tothe end of § 3.4:

§ 3.4 Withdrawal of appeal.

* * * Departure from the UnitedStates of a person who is the subject ofdeportation or removal proceedings,except for arriving aliens as defined in§ 1.1(q) of this chapter, subsequent tothe taking of an appeal, but prior to adecision thereon, shall constitute awithdrawal of the appeal, and the initialdecision in the case shall be final to thesame extent as though no appeal hadbeen taken.

Subpart B—Immigration Court

7. In Part 3, the heading of Subpart Bis revised as set forth above.

8. Section 3.9 is revised to read asfollows:

§ 3.9 Chief Immigration Judge.The Chief Immigration Judge shall be

responsible for the general supervision,direction, and scheduling of theImmigration Judges in the conduct ofthe various programs assigned to them.The Chief Immigration Judge shall beassisted by Deputy Chief ImmigrationJudges and Assistant Chief ImmigrationJudges in the performance of his or herduties. These shall include, but are notlimited to:

(a) Establishment of operationalpolicies; and

(b) Evaluation of the performance ofImmigration Courts, making appropriatereports and inspections, and takingcorrective action where indicated.


§ 3.10 Immigration Judges.Immigration Judges, as defined in 8

CFR part 1, shall exercise the powersand duties in this chapter regarding theconduct of exclusion, deportation,removal, and asylum proceedings andsuch other proceedings which theAttorney General may assign them toconduct.


§ 3.11 Administrative control ImmigrationCourts.

An administrative controlImmigration Court is one that createsand maintains Records of Proceedingsfor Immigration Courts within anassigned geographical area. Alldocuments and correspondencepertaining to a Record of Proceedingshall be filed with the ImmigrationCourt having administrative controlover that Record of Proceeding and shallnot be filed with any other ImmigrationCourt. A list of the administrativecontrol Immigration Courts with theirassigned geographical areas will bemade available to the public at anyImmigration Court.

Subpart C—Immigration Court—Rulesof Procedure

11. In part 3, the heading of SubpartC is revised as set forth above.

12. Section 3.12 is amended byrevising the last sentence, and adding anew sentence at the end of the section,to read as follows:

§ 3.12 Scope of rules.* * * Except where specifically

stated, the rules in this subpart apply tomatters before Immigration Judges,including, but not limited to,deportation, exclusion, removal, bond,rescission, departure control, asylumproceedings, and disciplinary


proceedings under § 292.3 of thischapter. The sole procedures for reviewof credible fear determinations byImmigration Judges are provided for in§ 3.42.


§ 3.13 Definitions.As used in this subpart:Administrative control means

custodial responsibility for the Recordof Proceeding as specified in § 3.11.

Charging document means the writteninstrument which initiates a proceedingbefore an Immigration Judge. Forproceedings initiated prior to April 1,1997, these documents include an Orderto Show Cause, a Notice to Applicantfor Admission Detained for Hearingbefore Immigration Judge, and a Noticeof Intention to Rescind and Request forHearing by Alien. For proceedingsinitiated after April 1, 1997, thesedocuments include a Notice to Appear,a Notice of Referral to ImmigrationJudge, and a Notice of Intention toRescind and Request for Hearing byAlien.

Filing means the actual receipt of adocument by the appropriateImmigration Court.

Service means physically presentingor mailing a document to theappropriate party or parties; except thatan Order to Show Cause or Notice ofDeportation Hearing shall be served inperson to the alien, or by certified mailto the alien or the alien’s attorney anda Notice to Appear or Notice of RemovalHearing shall be served to the alien inperson, or if personal service is notpracticable, shall be served by regularmail to the alien or the alien’s attorneyof record.

14. Section § 3.14 is amended by:a. Revising paragraph (a), and byb. Adding a new paragraph (c) to read

as follows:

§ 3.14 Jurisdiction and commencement ofproceedings.

(a) Jurisdiction vests, and proceedingsbefore an Immigration Judge commence,when a charging document is filed withthe Immigration Court by the Service.The charging document must include acertificate showing service on theopposing party pursuant to § 3.32 whichindicates the Immigration Court inwhich the charging document is filed.However, no charging document isrequired to be filed with theImmigration Court to commence bondproceedings pursuant to §§ 3.19,236.1(d) and 240.2(b) of this chapter.* * * * *

(c) Immigration Judges havejurisdiction to administer the oath of

allegiance in administrativenaturalization ceremonies conducted bythe Service in accordance with§ 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 toAppear’’ immediately after the phrase‘‘Order to Show Cause’’;

c. Redesignating paragraph (c) as (d);d. Adding a new paragraph (c); and bye. Revising newly redesignated

paragraph (d), to read as follows:

§ 3.15 Contents of the order to show causeand notice to appear and notification ofchange of address.

* * * * *(c) Contents of the Notice to Appear

for Removal Proceedings. In the Noticeto Appear for removal proceedings, theService shall provide the followingadministrative information to theImmigration Court. Failure to provideany of these items shall not beconstrued as affording the alien anysubstantive or procedural rights.

(1) The alien’s names and any knownaliases;

(2) The alien’s address;(3) The alien’s registration number,

with any lead alien registration numberwith which the alien is associated;

(4) The alien’s alleged nationality andcitizenship; and

(5) The language that the alienunderstands.

(d) Address and telephone number.(1) If the alien’s address is not providedon the Order to Show Cause or Noticeto Appear, or if the address on the Orderto Show Cause or Notice to Appear isincorrect, the alien must provide to theImmigration Court where the chargingdocument has been filed, within fivedays of service of that document, awritten notice of an address andtelephone number at which the aliencan be contacted. The alien may satisfythis requirement by completing andfiling Form EOIR–33.

(2) Within five days of any change ofaddress, the alien must provide writtennotice of the change of address on FormEOIR–33 to the Immigration Courtwhere the charging document has beenfiled, or if venue has been changed, tothe Immigration Court to which venuehas been changed.

§ 3.16 [Amended]16. Section 3.16(b) is amended by

revising the term ‘‘respondent/applicant’’ to read ‘‘alien’’.

§ 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 ‘‘theappropriate EOIR form’’ to read ‘‘FormEOIR–28’’.


§ 3.18 Scheduling of cases.(a) The Immigration Court shall be

responsible for scheduling cases andproviding notice to the government andthe alien of the time, place, and date ofhearings.

(b) In removal proceedings pursuantto section 240 of the Act, the Serviceshall provide in the Notice to Appear,the time, place and date of the initialremoval hearing, where practicable. Ifthat information is not contained in theNotice to Appear, the Immigration Courtshall be responsible for scheduling theinitial removal hearing and providingnotice to the government and the alienof the time, place, and date of hearing.In the case of any change orpostponement in the time and place ofsuch proceeding, the Immigration Courtshall provide written notice to the alienspecifying the new time and place of theproceeding and the consequences undersection 240(b)(5) of the Act of failing,except under exceptional circumstancesas defined in section 240(e)(1) of theAct, to attend such proceeding. No suchnotice shall be required for an alien notin detention if the alien has failed toprovide the address required in section239(a)(1)(F) of the Act.

§ 3.19 [Amended]19. Section 3.19(a) is amended by

revising the reference to ‘‘part 242 ofthis chapter’’ to read ‘‘8 CFR part 236’’wherever it appears in the paragraph.

20. Section 3.19(d) is amended in thefirst sentence by adding the term ‘‘orremoval’’ immediately after the word‘‘deportation’’.

21. Section 3.19 is amended byremoving paragraph (h).

22. In § 3.20, paragraph (a) is revisedto read as follows:

§ 3.20 Change of venue.

(a) Venue shall lie at the ImmigrationCourt where jurisdiction vests pursuantto § 3.14.* * * * *

23. Section 3.23 is amended byrevising the section heading andparagraph (b) to read as follows:

§ 3.23 Reopening or Reconsiderationbefore the Immigration Court.

(a) * * *(b) Before the Immigration Court. (1)

In general. An Immigration Judge mayupon his or her own motion at any time,or upon motion of the Service or the


alien, reopen or reconsider any case inwhich he or she has made a decision,unless jurisdiction is vested with theBoard of Immigration Appeals. Subjectto the exceptions in this paragraph andparagraph (b)(4), a party may file onlyone motion to reconsider and onemotion to reopen proceedings. A motionto reconsider must be filed within 30days of the date of entry of a finaladministrative order of removal,deportation, or exclusion, or on orbefore July 31, 1996, whichever is later.A motion to reopen must be filed within90 days of the date of entry of a finaladministrative order of removal,deportation, or exclusion, or on orbefore September 30, 1996, whichever islater. A motion to reopen or toreconsider shall not be made by or onbehalf of a person who is the subject ofremoval, deportation, or exclusionproceedings subsequent to his or herdeparture from the United States. Anydeparture from the United States,including the deportation or removal ofa person who is the subject of exclusion,deportation, or removal proceedings,occurring after the filing of a motion toreopen or a motion to reconsider shallconstitute a withdrawal of such motion.The time and numerical limitations setforth in this paragraph do not apply tomotions by the Service in removalproceedings pursuant to section 240 ofthe Act. Nor shall such limitationsapply to motions by the Service inexclusion or deportation proceedings,when the basis of the motion is fraud inthe original proceeding or a crime thatwould support termination of asylum inaccordance with § 208.22(f) of thischapter.

(i) Form and contents of the motion.The motion shall be in writing andsigned by the affected party or theattorney or representative of record, ifany. The motion and any submissionmade in conjunction with it must be inEnglish or accompanied by a certifiedEnglish translation. Motions to reopenor reconsider shall state whether thevalidity of the exclusion, deportation, orremoval order has been or is the subjectof any judicial proceeding and, if so, thenature and date thereof, the court inwhich such proceeding took place or ispending, and its result or status. In anycase in which an exclusion, deportation,or removal order is in effect, any motionto reopen or reconsider such order shallinclude a statement by or on behalf ofthe moving party declaring whether thesubject of the order is also the subjectof any pending criminal proceedingunder the Act, and, if so, the currentstatus of that proceeding.

(ii) Filing. Motions to reopen orreconsider a decision of an Immigration

Judge must be filed with theImmigration Court havingadministrative control over the Recordof Proceeding. A motion to reopen or amotion to reconsider shall include acertificate showing service on theopposing party of the motion and allattachments. If the moving party is notthe Service, service of the motion shallbe made upon the Office of the DistrictCounsel for the district in which thecase was completed. If the movingparty, other than the Service, isrepresented, a Form EOIR–28, Notice ofAppearance as Attorney orRepresentative Before an ImmigrationJudge must be filed with the motion.The motion must be filed in duplicatewith the Immigration Court,accompanied by a fee receipt.

(iii) Assignment to an ImmigrationJudge. If the Immigration Judge isunavailable or unable to adjudicate themotion to reopen or reconsider, theChief Immigration Judge or his or herdelegate shall reassign such motion toanother Immigration Judge.

(iv) Replies to motions; decision. TheImmigration Judge may set and extendtime limits for replies to motions toreopen or reconsider. A motion shall bedeemed unopposed unless timelyresponse is made. The decision to grantor deny a motion to reopen or a motionto reconsider is within the discretion ofthe Immigration Judge.

(v) Stays. Except in cases involving inabsentia orders, the filing of a motion toreopen or a motion to reconsider shallnot stay the execution of any decisionmade in the case. Execution of suchdecision shall proceed unless a stay ofexecution is specifically granted by theImmigration Judge, the Board, or anauthorized officer of the Service.

(2) Motion to reconsider. A motion toreconsider shall state the reasons for themotion by specifying the errors of factor law in the Immigration Judge’s priordecision and shall be supported bypertinent authority. Such motion maynot seek reconsideration of a decisiondenying previous motion to reconsider.

(3) Motion to reopen. A motion toreopen proceedings shall state the newfacts that will be proven at a hearing tobe held if the motion is granted andshall be supported by affidavits andother evidentiary material. Any motionto reopen for the purpose of acting onan application for relief must beaccompanied by the appropriateapplication for relief and all supportingdocuments. A motion to reopen will notbe granted unless the Immigration Judgeis satisfied that evidence sought to beoffered is material and was not availableand could not have been discovered orpresented at the former hearing. A

motion to reopen for the purpose ofproviding the alien an opportunity toapply for any form of discretionaryrelief will not be granted if it appearsthat the alien’s right to apply for suchrelief was fully explained to him or herby the Immigration Judge and anopportunity to apply therefore wasafforded at the hearing, unless the reliefis sought on the basis of circumstancesthat have arisen subsequent to thehearing. Pursuant to section 240A(d)(1)of the Act, a motion to reopenproceedings for consideration or furtherconsideration of an application for reliefunder section 240A(a) (cancellation ofremoval for certain permanentresidents) or 240A(b) (cancellation ofremoval and adjustment of status forcertain nonpermanent residents) may begranted only if the alien demonstratesthat he or she was statutorily eligible forsuch relief prior to the service of anotice to appear, or prior to thecommission of an offense referred to insection 212(a)(2) of the Act that rendersthe alien inadmissible or removableunder sections 237(a)(2) of the Act or(a)(4), whichever is earliest. TheImmigration Judge has discretion todeny a motion to reopen even if themoving party has established a primafacie case for relief.

(4) Exceptions to filing deadlines.—(i)Asylum. The time and numericallimitations set forth in paragraph (b)(1)of this section shall not apply if thebasis of the motion is to apply for reliefunder section 208 or 241(b)(3) of the Actand is based on changed countryconditions arising in the country ofnationality or the country to whichremoval has been ordered, if suchevidence is material and was notavailable and could not have beendiscovered or presented at the previousproceeding. The filing of a motion toreopen under this section shall notautomatically stay the removal of thealien. However, the alien may request astay and, if granted by the ImmigrationJudge, the alien shall not be removedpending disposition of the motion bythe Immigration Judge. If the originalasylum application was denied basedupon a finding that it was frivolous,then the alien is ineligible to file eithera motion to reopen or reconsider, or fora stay of removal.

(ii) Order entered in absentia inasylum proceedings or removalproceedings. An order of removalentered in absentia in asylumproceedings pursuant to § 208.2(b) ofthis chapter or in removal proceedingspursuant to section 240(b)(5) of the Actmay be rescinded only upon a motionto reopen filed within 180 days after thedate of the order of removal, if the alien


demonstrates that the failure to appearwas because of exceptionalcircumstances as defined in section240(e)(1) of the Act. An order entered inabsentia pursuant to § 208.2(b) of thischapter or pursuant to section 240(b)(5)may be rescinded upon a motion toreopen filed at any time if the aliendemonstrates that he or she did notreceive notice in accordance withsections 239(a)(1) or (2) of the Act, orthe alien demonstrates that he or shewas in Federal or state custody and thefailure to appear was through no fault ofthe alien. However, in accordance withsection 240(b)(5)(B) of the Act, nowritten notice of a change in time orplace of proceeding shall be required ifthe alien has failed to provide theaddress required under section239(a)(1)(F) of the Act. The filing of amotion under this paragraph shall staythe removal of the alien pendingdisposition of the motion by theImmigration Judge. An alien may fileonly one motion pursuant to thisparagraph.

(iii) Order entered in absentia indeportation or exclusion proceedings.(A) An order entered in absentia indeportation proceedings may berescinded only upon a motion to reopenfiled:

(1) Within 180 days after the date ofthe order of deportation if the aliendemonstrates that the failure to appearwas because of exceptionalcircumstances beyond the control of thealien (e.g., serious illness of the alien orserious illness or death of an immediaterelative of the alien, but not includingless compelling circumstances); or

(2) At any time if the aliendemonstrates that he or she did notreceive notice or if the aliendemonstrates that he or she was infederal or state custody and the failureto appear was through no fault of thealien.

(B) A motion to reopen exclusionhearings on the basis that theImmigration Judge improperly enteredan order of exclusion in absentia mustbe supported by evidence that the alienhad reasonable cause for his failure toappear.

(C) The filing of a motion to reopenunder paragraph (b)(4)(iii)(A) of thissection shall stay the deportation of thealien pending decision on the motionand the adjudication of any properlyfiled administrative appeal.

(D) The time and numericallimitations set forth in paragraph (b)(1)of this section shall not apply to amotion to reopen filed pursuant to theprovisions of paragraph (b)(4)(iii)(A) ofthis section.

(iv) Jointly filed motions. The timeand numerical limitations set forth inparagraph (b)(1) of this section shall notapply to a motion to reopen agreed uponby all parties and jointly filed.


§ 3.25 Form of the proceeding.(a) Waiver of presence of the parties.

The Immigration Judge may, for goodcause, and consistent with section240(b) of the Act, waive the presence ofthe alien at a hearing when the alien isrepresented or when the alien is a minorchild at least one of whose parents orwhose legal guardian is present. Whenit is impracticable by reason of analien’s mental incompetency for thealien to be present, the presence of thealien may be waived provided that thealien is represented at the hearing by anattorney or legal representative, a nearrelative, legal guardian, or friend.

(b) Stipulated request for order;waiver of hearing. An Immigration Judgemay enter an order of deportation,exclusion or removal stipulated to bythe alien (or the alien’s representative)and the Service. The Immigration Judgemay enter such an order without ahearing and in the absence of the partiesbased on a review of the chargingdocument, the written stipulation, andsupporting documents, if any. If thealien is unrepresented, the ImmigrationJudge must determine that the alien’swaiver is voluntary, knowing, andintelligent. The stipulated request andrequired waivers shall be signed onbehalf of the government and by thealien and his or her attorney orrepresentative, if any. The attorney orrepresentative shall file a Notice ofAppearance in accordance with§ 3.16(b). A stipulated order shallconstitute a conclusive determination ofthe alien’s deportability or removabilityfrom the United States. The stipulationshall include:

(1) An admission that all factualallegations contained in the chargingdocument are true and correct aswritten;

(2) A concession of deportability orinadmissibility as charged;

(3) A statement that the alien makesno application for relief under the Act;

(4) A designation of a country fordeportation or removal under section241(b)(2)(A)(i) of the Act;

(5) A concession to the introductionof the written stipulation of the alien asan exhibit to the Record of Proceeding;

(6) A statement that the alienunderstands the consequences of thestipulated request and that the alienenters the request voluntarily,knowingly, and intelligently;

(7) A statement that the alien willaccept a written order for his or herdeportation, exclusion or removal as afinal disposition of the proceedings; and

(8) A waiver of appeal of the writtenorder of deportation or removal.

(c) Telephonic or video hearings. AnImmigration Judge may conducthearings through video conference tothe same extent as he or she mayconduct hearings in person. AnImmigration Judge may also conduct ahearing through a telephone conference,but an evidentiary hearing on the meritsmay only be conducted through atelephone conference with the consentof the alien involved after the alien hasbeen advised of the right to proceed inperson or, where available, through avideo conference, except that crediblefear determinations may be reviewed bythe Immigration Judge through atelephone conference without theconsent of the alien.

25. Section 3.26 is amended byrevising paragraph (c) and adding a newparagraph (d) to read as follows:

§ 3.26 In absentia hearings.

* * * * *(c) In any removal proceeding before

an Immigration Judge in which the alienfails to appear, the Immigration Judgeshall order the alien removed inabsentia if:

(1) The Service establishes by clear,unequivocal, and convincing evidencethat the alien is removable; and

(2) The Service establishes by clear,unequivocal, and convincing evidencethat written notice of the time and placeof proceedings and written notice of theconsequences of failure to appear wereprovided to the alien.

(d) Written notice to the alien shall beconsidered sufficient for purposes ofthis section if it was provided at themost recent address provided by thealien. If the respondent fails to providehis or her address as required under§ 3.15(d), no written notice shall berequired for an Immigration Judge toproceed with an in absentia hearing.This paragraph shall not apply in theevent that the Immigration Judge waivesthe appearance of an alien under § 3.25.

26. Section 3.27 is amended byrevising paragraph (c) to read as follows:

§ 3.27 Public access to hearings.

* * * * *(c) In any proceeding before an

Immigration Judge concerning anabused alien spouse, the hearing and theRecord of Proceeding shall be closed tothe public unless the abused spouseagrees that the hearing and the Recordof Proceeding shall be open to thepublic. In any proceeding before an


Immigration Judge concerning anabused alien child, the hearing and theRecord of Proceeding shall be closed tothe public.


§ 3.30 Additional charges in deportation orremoval hearings.

At any time during deportation orremoval proceedings, additional orsubstituted charges of deportability and/or factual allegations may be lodged bythe Service in writing. The alien shall beserved with a copy of these additionalcharges and/or allegations and theImmigration Judge shall read them tothe alien. The Immigration Judge shalladvise the alien, if he or she is notrepresented by counsel, that the alienmay be so represented. The alien may begiven a reasonable continuance torespond to the additional factualallegations and charges. Thereafter, theprovision of § 240.10(b) of this chapterrelating to pleading shall apply to theadditional factual allegations andcharges.


§ 3.35 Depositions and subpoenas.(a) Depositions. If an Immigration

Judge is satisfied that a witness is notreasonably available at the place ofhearing and that said witness’ testimonyor other evidence is essential, theImmigration Judge may order the takingof deposition either at his or her owninstance or upon application of a party.Such order shall designate the officialby whom the deposition shall be taken,may prescribe and limit the content,scope, or manner of taking thedeposition, and may direct theproduction of documentary evidence.

(b) Subpoenas issued subsequent tocommencement of proceedings. (1)General. In any proceeding before anImmigration Judge, other than under 8CFR part 335, the Immigration Judgeshall have exclusive jurisdiction to issuesubpoenas requiring the attendance ofwitnesses or for the production ofbooks, papers and other documentaryevidence, or both. An Immigration Judgemay issue a subpoena upon his or herown volition or upon application of theService or the alien.

(2) Application for subpoena. A partyapplying for a subpoena shall berequired, as a condition precedent to itsissuance, to state in writing or at theproceeding, what he or she expects toprove by such witnesses ordocumentary evidence, and to showaffirmatively that he or she has madediligent effort, without success, toproduce the same.

(3) Issuance of subpoena. Upon beingsatisfied that a witness will not appearand testify or produce documentaryevidence and that the witness’ evidenceis essential, the Immigration Judge shallissue a subpoena. The subpoena shallstate the title of the proceeding andshall command the person to whom itis directed to attend and to givetestimony at a time and place specified.The subpoena may also command theperson to whom it is directed toproduce the books, papers, ordocuments specified in the subpoena.

(4) Appearance of witness. If thewitness is at a distance of more than 100miles from the place of the proceeding,the subpoena shall provide for thewitness’ appearance at the ImmigrationCourt nearest to the witness to respondto oral or written interrogatories, unlessthere is no objection by any party to thewitness’ appearance at the proceeding.

(5) Service. A subpoena issued underthis section may be served by anyperson over 18 years of age not a partyto the case.

(6) Invoking aid of court. If a witnessneglects or refuses to appear and testifyas directed by the subpoena servedupon him or her in accordance with theprovisions of this section, theImmigration Judge issuing the subpoenashall request the United States Attorneyfor the district in which the subpoenawas issued to report such neglect orrefusal to the United States DistrictCourt and to request such court to issuean order requiring the witness to appearand testify and to produce the books,papers or documents designated in thesubpoena.

29. In Subpart C, a new § 3.42 isadded to read as follows:

§ 3.42 Review of credible feardetermination.

(a) Referral. Jurisdiction for anImmigration Judge to review an adversecredible fear finding by an asylumofficer pursuant to section 235(b)(1)(B)of the Act shall commence with thefiling by the Service of Form I–863,Notice of Referral to Immigration Judge.The Service shall also file with thenotice of referral a copy of the writtenrecord of determination as defined insection 235(b)(1)(B)(iii)(II) of the Act,including a copy of the alien’s writtenrequest for review, if any.

(b) Record of proceeding. TheImmigration Court shall create a Recordof Proceeding for a review of an adversecredible fear determination. This recordshall not be merged with any laterproceeding pursuant to section 240 ofthe Act involving the same alien.

(c) Procedures and evidence. TheImmigration Judge may receive into

evidence any oral or written statementwhich is material and relevant to anyissue in the review. The testimony ofthe alien shall be under oath oraffirmation administered by theImmigration Judge. If an interpreter isnecessary, one will be provided by theImmigration Court. The ImmigrationJudge shall determine whether thereview shall be in person, or throughtelephonic or video connection (whereavailable). The alien may consult witha person or persons of the alien’schoosing prior to the review.

(d) Standard of review. TheImmigration Judge shall make a de novodetermination as to whether there is asignificant possibility, taking intoaccount the credibility of the statementsmade by the alien in support of thealien’s claim and such other facts as areknown to the Immigration Judge, thatthe alien could establish eligibility forasylum under section 208 of the Act.

(e) Timing. The Immigration Judgeshall conclude the review to themaximum extent practicable within 24hours, but in no case later than 7 daysafter the date the supervisory asylumofficer has approved the asylum officer’snegative credible fear determinationissued on Form I–869, Record ofNegative Credible Fear Finding andRequest for Review.

(f) Decision. If an Immigration Judgedetermines that an alien has a crediblefear of persecution, the ImmigrationJudge shall vacate the order enteredpursuant to section 235(b)(1)(B)(iii)(I) ofthe Act. Subsequent to the order beingvacated, the Service shall issue and fileForm I–862, Notice to Appear, with theImmigration Court to commenceremoval proceedings. The alien shallhave the opportunity to apply forasylum in the course of removalproceedings pursuant to section 240 ofthe Act. If an Immigration Judgedetermines that an alien does not havea credible fear of persecution, theImmigration Judge shall affirm theasylum officer’s determination andremand the case to the Service forexecution of the removal order enteredpursuant to section 235(b)(1)(B)(iii)(I) ofthe Act. No appeal shall lie from areview of an adverse credible feardetermination made by an ImmigrationJudge.

(g) Custody. An Immigration Judgeshall have no authority to review analien’s custody status in the course of areview of an adverse credible feardetermination made by the Service.


PART 103—POWERS AND DUTIES OFSERVICE OFFICERS; AVAILABILITYOF SERVICE RECORDS


Authority: 5 U.S.C. 552, 552(a); 8 U.S.C.1101, 1103, 1201, 1252 note, 1252b, 1304,1356; 31 U.S.C. 9701; E.O. 12356; 47 FR14874, 15557; 3 CFR, 1982 Comp., p. 166; 8CFR part 2.

31. In § 103.1, paragraph (g)(3)(ii) isrevised to read as follows:

§ 103.1 Delegations of authority.

* * * * *(g) * * *(3) * * *(ii) Asylum officers. Asylum officers

constitute a professional corps ofofficers who serve under thesupervision and direction of theDirector of International Affairs andshall be specially trained as required in§ 208.1(b) of this chapter. Asylumofficers are delegated the authority tohear and adjudicate credible fear ofpersecution determinations undersection 235(b)(1)(B) of the Act andapplications for asylum and forwithholding of removal, as providedunder 8 CFR part 208.* * * * *

§ 103.5 [Amended]32. Section 103.5 is amended by:a. Removing paragraph (a)(1)(iii)(B);b. Redesignating paragraphs

(a)(1)(iii)(C) through (F) as paragraphs(a)(1)(iii)(B) through (E), respectively;and

c. Removing paragraph (a)(5)(iii).33. In § 103.5a, paragraph (c)(1) is

revised to read as follows:

§ 103.5a Service of notification, decisions,and other papers by the Service.

* * * * *(c) * * *(1) Generally. In any proceeding

which is initiated by the Service, withproposed adverse effect, service of theinitiating notice and of notice of anydecision by a Service officer shall beaccomplished by personal service,except as provided in section 239 of theAct.* * * * *

34. In § 103.6, paragraph (a) is revisedto read as follows:

§ 103.6 Surety bonds.(a) Posting of surety bonds.—(1)

Extension agreements; consent of surety;collateral security. All surety bondsposted in immigration cases shall beexecuted on Form I–352, ImmigrationBond, a copy of which, and any riderattached thereto, shall be furnished the

obligor. A district director is authorizedto approve a bond, a formal agreementto extension of liability of surety, arequest for delivery of collateral securityto a duly appointed and undischargedadministrator or executor of the estate ofa deceased depositor, and a power ofattorney executed on Form I–312,Designation of Attorney in Fact. Allother matters relating to bonds,including a power of attorney notexecuted on Form I–312 and a requestfor delivery of collateral security toother than the depositor or his or herapproved attorney in fact, shall beforwarded to the regional director forapproval.

(2) Bond riders.—(i) General. Bondriders shall be prepared on Form I–351,Bond Riders, and attached to Form I–352. If a condition to be included in abond is not on Form I–351, a ridercontaining the condition shall beexecuted.* * * * *

35. Section 103.7(b)(1) is amended by:a. Removing the entry to ‘‘Form I–

444’’, and byb. Adding the entry for ‘‘Form EOIR–

42’’ to the listing of forms, in propernumerical sequence, to read as follows:

§ 103.7 Fees

* * * * *(b) * * *(1) * * *

* * * * *Form EOIR–42. For filing application for

cancellation of removal under section 240Aof the Act—$100.00. (A single fee of $100.00will be charged whenever cancellation ofremoval applications are filed by two or morealiens in the same proceedings).* * * * *

PART 204—IMMIGRANT PETITIONS


Authority: 8 U.S.C. 1101, 1103, 1151, 1153,1154, 1182, 1186a, 1255; 8 CFR part 2.

37. Section 204.2 is amended by:a. Revising paragraph (a)(1)(iii)

introductory text;b. Removing paragraphs (a)(1)(iii)(A)

through (C); andc. Redesignating paragraphs

(a)(1)(iii)(D) through (I) as paragraphs(a)(1)(iii)(A) through (F) respectively, toread as follows:

§ 204.2 Petitions for relatives, widows, andwidowers, and abused spouses andchildren.

(a) * * *(1) * * *(iii) Marriage during proceedings—

general prohibition against approval ofvisa petition. A visa petition filed on

behalf of an alien by a United Statescitizen or a lawful permanent residentspouse shall not be approved if themarriage creating the relationshipoccurred on or after November 10, 1986,and while the alien was in exclusion,deportation, or removal proceedings, orjudicial proceedings relating thereto.Determination of commencement andtermination of proceedings andexemptions shall be in accordance with§ 245.1(c)(9) of this chapter, except thatthe burden in visa petition proceedingsto establish eligibility for the exemptionin § 245.1(c)(9)(iii)(F) of this chaptershall rest with the petitioner.* * * * *

PART 207—ADMISSION OFREFUGEES

38. The authority citation for part 207is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1157,1159, 1182; 8 CFR part 2.

39. Section 207.1 is amended byremoving paragraph (e), and by revisingparagraph (a) to read as follows:

§ 207.1 Eligibility.(a) Filing jurisdiction. Any alien who

believes he or she is a refugee as definedin section 101(a)(42) of the Act, and isincluded in a refugee group identified insection 207(a) of the Act, may apply foradmission to the United States by filingan application in accordance with§ 207.2 with the Service office havingjurisdiction over the area where theapplicant is located. In those areas toodistant from a Service office, theapplication may be filed at a designatedUnited States consular office.* * * * *


§ 207.3 Waivers of inadmissibility.(a) Authority. Section 207(c)(3) of the

Act sets forth grounds of inadmissibilityunder section 212(a) of the Act whichare not applicable and those which maybe waived in the case of an otherwisequalified refugee and the conditionsunder which such waivers may beapproved. Officers in charge of overseasoffices are delegated authority to initiatethe necessary investigations to establishthe facts in each waiver applicationpending before them and to approve ordeny such waivers.

(b) Filing requirements. The applicantfor a waiver must submit Form I–602,Application by Refugee for Waiver ofGrounds of Inadmissibility, with theService office processing his or her case.The burden is on the applicant to showthat the waiver should be granted basedupon humanitarian grounds, family


unity, or the public interest. Theapplicant shall be notified in writing ofthe decision, including the reasons fordenial, if the application is denied.There is no appeal from such decision.

§ 207.8 [Amended]41. Section 207.8 is amended in the

last sentence by revising the reference to‘‘sections 235, 236, and 237’’ to read‘‘sections 235, 240, and 241’’.

42. Part 208 is revised to read asfollows:

PART 208—PROCEDURES FORASYLUM AND WITHHOLDING OFREMOVAL

Subpart A—Asylum and Withholding ofRemoval

Sec.208.1 General.208.2 Jurisdiction.208.3 Form of application.208.4 Filing the application.208.5 Special duties toward aliens in

custody of the Service.208.6 Disclosure to third parties.208.7 Employment authorization.208.8 Limitations on travel outside the

United States.208.9 Procedure for interview before an

asylum officer.208.10 Failure to appear at an interview

before an asylum officer.208.11 Comments from the Department of

State.208.12 Reliance on information compiled

by other sources.208.13 Establishing asylum eligibility.208.14 Approval, denial, or referral of

application.208.15 Definition of ‘‘firm resettlement.’’208.16 Withholding of removal.208.17 Decisions.208.18 Determining if an asylum

application is frivolous.208.19 Admission of the asylee’s spouse

and children.208.20 Effect on exclusion, deportation, and

removal proceedings.208.21 Restoration of status.208.22 Termination of asylum or

withholding of removal or deportation.208.23—29 [Reserved]

Subpart B—Credible Fear of Persecution

208.30 Credible fear determinationsinvolving stowaways and applicants foradmission found inadmissible pursuantto section 212(a)(6)(C) or 212(a)(7) of theAct.

Authority: 8 U.S.C. 1103, 1158, 1226, 1252,1282; 8 CFR part 2.

Subpart A—Asylum and Withholdingor Removal

§ 208.1 General.(a) Applicability. Unless otherwise

provided in this chapter, this subpartshall apply to all applications forasylum under section 208 of the Act orfor withholding of deportation or

withholding of removal under section241(b)(3) of the Act, whether before anasylum officer or an immigration judge,regardless of the date of filing. Forpurposes of this chapter, withholding ofremoval shall also mean withholding ofdeportation under section 243(h) of theAct, as it appeared prior to April 1,1997, except as provided in § 208.16(c).Such applications are hereinafterreferred to generically as asylumapplications. The provisions of this partshall not affect the finality or validity ofany decision made by a district director,an immigration judge, or the Board ofImmigration Appeals in any such caseprior to April 1, 1997. No asylumapplication that was filed with a districtdirector, asylum officer or immigrationjudge prior to April 1, 1997, may bereopened or otherwise reconsideredunder the provisions of this part exceptby motion granted in the exercise ofdiscretion by the Board of ImmigrationAppeals, an immigration judge, or anasylum officer for proper cause shown.Motions to reopen or reconsider mustmeet the requirements of sections240(c)(5) and (c)(6) of the Act, and 8CFR parts 3 and 103, where applicable.

(b) Training of asylum officers. TheDirector of International Affairs shallensure that asylum officers receivespecial training in international humanrights law, nonadversarial interviewtechniques, and other relevant nationaland international refugee laws andprinciples. The Director of InternationalAffairs shall also, in cooperation withthe Department of State and otherappropriate sources, compile anddisseminate to asylum officersinformation concerning the persecutionof persons in other countries on accountof race, religion, nationality,membership in a particular social group,or political opinion, as well as otherinformation relevant to asylumdeterminations, and shall maintain adocumentation center with informationon human rights conditions.

§ 208.2 Jurisdiction.(a) Office of International Affairs.

Except as provided in paragraph (b) ofthis section, the Office of InternationalAffairs shall have initial jurisdictionover an asylum application filed by, ora credible fear determination pertainingto, an alien physically present in theUnited States or seeking admission at aport-of-entry. An application that iscomplete within the meaning of§ 208.3(c)(3) shall be either adjudicatedor referred by asylum officers under thispart in accordance with § 208.14. Anapplication that is incomplete withinthe meaning of § 208.3(c)(3) shall bereturned to the applicant. Except as

provided in § 208.16(a), an asylumofficer shall not decide whether an alienis entitled to withholding of removalunder section 241(b)(3) of the Act.

(b) Immigration Court—(1) Certainaliens not entitled to proceedings undersection 240 of the Act. After Form I–863,Notice of Referral to Immigration Judge,has been filed with the ImmigrationCourt, an immigration judge shall haveexclusive jurisdiction over any asylumapplication filed on or after April 1,1997, by:

(i) An alien crewmember who:(A) Is an applicant for a landing

permit;(B) Has been refused permission to

land under section 252 of the Act; or(C) On or after April 1, 1997, was

granted permission to land undersection 252 of the Act, regardless ofwhether the alien has remained in theUnited States longer than authorized;

(ii) An alien stowaway who has beenfound to have a credible fear ofpersecution pursuant to the procedureset forth in subpart B of this part;

(iii) An alien who is an applicant foradmission pursuant to the Visa WaiverPilot Program under section 217 of theAct;

(iv) An alien who was admitted to theUnited States pursuant to the VisaWaiver Pilot Program under section 217of the Act and has remained longer thanauthorized or has otherwise violated hisor her immigration status;

(v) An alien who has been orderedremoved under section 235(c) of theAct; or

(vi) An alien who is an applicant foradmission, or has been admitted, as analien classified under section101(a)(15)(S) of the Act.

(2) Rules of procedure. (i) General.Proceedings falling under thejurisdiction of the immigration judgepursuant to paragraph (b)(1) of thissection shall be conducted inaccordance with the same rules ofprocedure as proceedings conductedunder 8 CFR part 240, except the scopeof review shall be limited to adetermination of whether the alien iseligible for asylum or withholding ofremoval and whether asylum shall begranted in the exercise of discretion.During such proceedings all parties areprohibited from raising or consideringany other issues, including but notlimited to issues of admissibility,removability, eligibility for waivers, andeligibility for any form of relief otherthan asylum or withholding of removal.

(ii) Notice of hearing procedures andin-absentia decisions. The alien will beprovided with notice of the time andplace of the proceeding. The request forasylum and withholding of removal


submitted by an alien who fails toappear for the hearing shall be denied.The denial of asylum and withholdingof removal for failure to appear may bereopened only upon a motion filed withthe immigration judge with jurisdictionover the case. Only one motion toreopen may be filed, and it must be filedwithin 90 days, unless the alienestablishes that he or she did not receivenotice of the hearing date or was inFederal or State custody on the datedirected to appear. The motion mustinclude documentary evidence whichdemonstrates that:

(A) The alien did not receive thenotice;

(B) The alien was in Federal or Statecustody and the failure to appear wasthrough no fault of the alien; or

(C) ‘‘Exceptional circumstances,’’ asdefined in section 240(e)(1) of the Act,caused the failure to appear.

(iii) Relief. The filing of a motion toreopen shall not stay removal of thealien unless the immigration judgegrants a written request for a staypending disposition of the motion. Analien who fails to appear for aproceeding under this section shall notbe eligible for relief under section 208,212(h), 212(i), 240A, 240B, 245, 248, or249 for a period of 10 years after thedate of the denial.

(3) Other aliens. Immigration judgesshall have exclusive jurisdiction overasylum applications filed by an alienwho has been served Form I–221, Orderto Show Cause; Form I–122, Notice toApplicant for Admission Detained for aHearing before an Immigration Judge; orForm I–862, Notice to Appear, after acopy of the charging document has beenfiled with the Immigration Court.Immigration judges shall also havejurisdiction over any asylumapplications filed prior to April 1, 1997,by alien crewmembers who haveremained in the United States longerthan authorized, by applicants foradmission under the Visa Waiver PilotProgram, and by aliens who have beenadmitted to the United States under theVisa Waiver Pilot Program.

§ 208.3 Form of application.(a) An asylum applicant must file

Form I–589, Application for Asylum orWithholding of Removal, together withany additional supporting evidence inaccordance with the instructions on theform. The applicant’s spouse andchildren shall be listed on theapplication and may be included in therequest for asylum if they are in theUnited States. One additional copy ofthe principal applicant’s Form I–589must be submitted for each dependentincluded in the principal’s application.

(b) An asylum application shall bedeemed to constitute at the same timean application for withholding ofremoval, unless adjudicated indeportation or exclusion proceedingscommenced prior to April 1, 1997. Insuch instances, the asylum applicationshall be deemed to constitute anapplication for withholding ofdeportation under section 243(h) of theAct, as that section existed prior toApril 1, 1997. Where a determination ismade that an applicant is ineligible toapply for asylum under section 208(a)(2)of the Act, an asylum application shallbe construed as an application forwithholding of removal.

(c) Form I–589 shall be filed under thefollowing conditions and shall have thefollowing consequences:

(1) If the application was filed on orafter January 4, 1995, informationprovided in the application may be usedas a basis for the initiation of removalproceedings, or to satisfy any burden ofproof in exclusion, deportation, orremoval proceedings;

(2) The applicant and anyone otherthan a spouse, parent, son, or daughterof the applicant who assists theapplicant in preparing the applicationmust sign the application under penaltyof perjury. The applicant’s signatureestablishes a presumption that theapplicant is aware of the contents of theapplication. A person other than arelative specified in this paragraph whoassists the applicant in preparing theapplication also must provide his or herfull mailing address;

(3) An asylum application that doesnot include a response to each of thequestions contained in the Form I–589,is unsigned, or is unaccompanied by therequired materials specified inparagraph (a) of this section isincomplete. The filing of an incompleteapplication shall not commence the150-day period after which theapplicant may file an application foremployment authorization inaccordance with § 208.7. An applicationthat is incomplete shall be returned bymail to the applicant within 30 days ofthe receipt of the application by theService. If the Service has not mailedthe incomplete application back to theapplicant within 30 days, it shall bedeemed complete. An applicationreturned to the applicant as incompleteshall be resubmitted by the applicantwith the additional information if he orshe wishes to have the applicationconsidered;

(4) Knowing placement of falseinformation on the application maysubject the person placing thatinformation on the application tocriminal penalties under title 18 of the

United States Code and to civilpenalties under section 274C of the Act;and

(5) Knowingly filing a frivolousapplication on or after April 1, 1997, solong as the applicant has received thenotice required by section 208(d)(4) ofthe Act, shall render the applicantpermanently ineligible for any benefitsunder the Act pursuant to § 208.18.

§ 208.4 Filing the application.Except as prohibited in paragraph (a)

of this section, asylum applicationsshall be filed in accordance withparagraph (b) of this section.

(a) Prohibitions on filing. Section208(a)(2) of the Act prohibits certainaliens from filing for asylum on or afterApril 1, 1997, unless the alien candemonstrate to the satisfaction of theAttorney General that one of theexceptions in section 208(a)(2)(D) of theAct applies. Such prohibition appliesonly to asylum applications undersection 208 of the Act and not toapplications for withholding of removalunder section 241 of the Act. If anapplicant submits an asylumapplication and it appears that one ormore of the prohibitions contained insection 208(a)(2) of the Act apply, anasylum officer or an immigration judgeshall review the application todetermine if the application should berejected or denied. For the purpose ofmaking determinations under section208(a)(2) of the Act, the following rulesshall apply:

(1) Authority. Only an asylum officer,an immigration judge, or the Board ofImmigration Appeals is authorized tomake determinations regarding theprohibitions contained in section208(a)(2)(B) or (C) of the Act;

(2) One-year filing deadline. (i) Forpurposes of section 208(a)(2)(B) of theAct, an applicant has the burden ofproving

(A) By clear and convincing evidencethat he or she applied within one yearof the alien’s arrival in the United Statesor

(B) To the satisfaction of the asylumofficer, immigration judge, or Board ofImmigration Appeals that he or shequalifies for an exception to the one-year deadline.

(ii) The one-year period shall becalculated from the date of the alien’slast arrival in the United States or April1, 1997, whichever is later. In the caseof an application that appears to havebeen filed more than a year after theapplicant arrived in the United States,an asylum officer or immigration judgewill determine whether the applicantqualifies under one of the exceptions tothe deadline;


(3) Prior denial of application. Forpurposes of section 208(a)(2)(C) of theAct, an asylum application has not beendenied unless denied by an immigrationjudge or the Board of ImmigrationAppeals;

(4) Changed circumstances. (i) Theterm ‘‘changed circumstances’’ insection 208(a)(2)(D) of the Act shall referto circumstances materially affecting theapplicant’s eligibility for asylum. Theymay include:

(A) Changes in conditions in theapplicant’s country of nationality or, ifthe person is stateless, country of lasthabitual residence or

(B) Changes in objectivecircumstances relating to the applicantin the United States, including changesin applicable U.S. law, that create areasonable possibility that applicantmay qualify for asylum.

(ii) The applicant shall apply forasylum within a reasonable period giventhose ‘‘changed circumstances.’’

(5) The term extraordinarycircumstances in section 208(a)(2)(D) ofthe Act shall refer to events or factorsbeyond the alien’s control that causedthe failure to meet the 1-year deadline.Such circumstances shall excuse thefailure to file within the 1-year periodso long as the alien filed the applicationwithin a reasonable period given thosecircumstances. The burden of proof ison the applicant to establish to thesatisfaction of the asylum officer orimmigration judge that thecircumstances were both beyond his orher control and that, but for thosecircumstances, he or she would havefiled within the 1-year period. Thesecircumstances may include:

(i) Serious illness or mental orphysical disability of significantduration, including any effects ofpersecution or violent harm suffered inthe past, during the 1-year period afterarrival;

(ii) Legal disability (e.g., the applicantwas an unaccompanied minor orsuffered from a mental impairment)during the first year after arrival;

(iii) Ineffective assistance of counsel,provided that:

(A) The alien files an affidavit settingforth in detail the agreement that wasentered into with counsel with respectto the actions to be taken and whatrepresentations counsel did or did notmake to the respondent in this regard;

(B) The counsel whose integrity orcompetence is being impugned has beeninformed of the allegations leveledagainst him or her and given anopportunity to respond; and

(C) The alien indicates whether acomplaint has been filed withappropriate disciplinary authorities

with respect to any violation ofcounsel’s ethical or legalresponsibilities, and if not, why not;

(iv) The applicant maintainedTemporary Protected Status until areasonable period before the filing of theasylum application; and

(v) The applicant submitted anasylum application prior to theexpiration of the 1-year deadline, butthat application was rejected by theService as not properly filed, wasreturned to the applicant for corrections,and was refiled within a reasonableperiod thereafter.

(b) Filing location—(1) With theservice center by mail. Except asprovided in paragraphs (b)(2), (b)(3),(b)(4) and (b)(5) of this section, asylumapplications shall be filed directly bymail with the service center servicingthe asylum office with jurisdiction overthe place of the applicant’s residence or,in the case of an alien without a UnitedStates residence, the applicant’s currentlodging or the land border port-of-entrythrough which the alien seeksadmission to the United States.

(2) With the asylum office. Asylumapplications shall be filed directly withthe asylum office having jurisdictionover the matter in the case of an alienwho has received the express consent ofthe Director of Asylum to do so.

(3) With the immigration judge.Asylum applications shall be fileddirectly with the Immigration Courthaving jurisdiction over the case in thefollowing circumstances:

(i) During exclusion, deportation, orremoval proceedings, with theImmigration Court having jurisdictionover the port, district office, or sectorafter service and filing of theappropriate charging document.

(ii) After completion of exclusion,deportation, or removal proceedings,and in conjunction with a motion toreopen pursuant to 8 CFR part 3 whereapplicable, with the Immigration Courthaving jurisdiction over the priorproceeding. Any such motion mustreasonably explain the failure to requestasylum prior to the completion of theproceedings.

(iii) In asylum proceedings pursuantto § 208.2(b)(1) and after the Notice ofReferral to Immigration Judge has beenserved on the alien and filed with theImmigration Court having jurisdictionover the case.

(4) With the Board of ImmigrationAppeals. In conjunction with a motionto remand or reopen pursuant to §§ 3.2and 3.8 of this chapter whereapplicable, an initial asylum applicationshall be filed with the Board ofImmigration Appeals if jurisdiction overthe proceedings is vested in the Board

of Immigration Appeals under 8 CFRpart 3. Any such motion mustreasonably explain the failure to requestasylum prior to the completion of theproceedings.

(5) With the district director. In thecase of any alien described in§ 208.2(b)(1) and prior to the service onthe alien of Form I–863, any asylumapplication shall be submitted to thedistrict director having jurisdictionpursuant to 8 CFR part 103. The districtdirector shall forward such asylumapplication to the appropriateImmigration Court with the Form I–863being filed with that Immigration Court.

(c) Amending an application afterfiling. Upon request of the alien and asa matter of discretion, the asylum officeror immigration judge having jurisdictionmay permit an asylum applicant toamend or supplement the application,but any delay caused by such requestshall extend the period within whichthe applicant may not apply foremployment authorization inaccordance with § 208.7(a).

§ 208.5 Special duties toward aliens incustody of the Service.

(a) General. When an alien in thecustody of the Service requests asylumor withholding of removal or expressesa fear of persecution or harm uponreturn to his or her country of origin orto agents thereof, the Service shall makeavailable the appropriate applicationforms and shall provide the applicantwith the information required by section208(d)(4) of the Act, except in the caseof an alien who is in custody pendinga credible fear of persecutiondetermination under section235(b)(1)(B) of the Act. Where possible,expedited consideration shall be givento applications of detained aliens.Except as provided in paragraph (c) ofthis section, such alien shall not beexcluded, deported, or removed before adecision is rendered on his or herasylum application.

(b) Certain aliens aboard vessels. (1)If an alien crewmember or alienstowaway on board a vessel or otherconveyance alleges, claims, or otherwisemakes known to an immigrationinspector or other official making anexamination on the conveyance that heor she is unable or unwilling to returnto his or her country of nationality orlast habitual residence (if not a nationalof any country) because of persecutionor a fear of persecution in that countryon account of race, religion, nationality,membership in a particular social group,or political opinion, the alien shall bepromptly removed from the conveyance.If the alien makes such fear known to anofficial while off such conveyance, the


alien shall not be returned to theconveyance but shall be retained in ortransferred to the custody of the Service.

(i) An alien stowaway will be referredto an asylum officer for a credible feardetermination under § 208.30.

(ii) An alien crewmember shall beprovided the appropriate applicationforms and information required bysection 208(d)(4) of the Act and maythen have 10 days within which tosubmit an asylum application to thedistrict director having jurisdiction overthe port of entry. The district director,pursuant to § 208.4(b), shall serve FormI–863 on the alien and immediatelyforward any such application to theappropriate Immigration Court with acopy of the Form I–863 being filed withthat court.

(2) Pending adjudication of theapplication, and, in the case of astowaway the credible feardetermination and any review thereof,the alien may be detained by the Serviceor otherwise paroled in accordance with§ 212.5 of this chapter. However,pending the credible fear determination,parole of an alien stowaway may bepermitted only when the AttorneyGeneral determines, in the exercise ofdiscretion, that parole is required tomeet a medical emergency or isnecessary for a legitimate lawenforcement objective.

(c) Exception to prohibition onremoval. A motion to reopen or an orderto remand accompanied by an asylumapplication pursuant to § 208.4(b)(3)(iii)shall not stay execution of a finalexclusion, deportation, or removal orderunless such stay is specifically grantedby the Board of Immigration Appeals orthe immigration judge havingjurisdiction over the motion.

§ 208.6 Disclosure to third parties.(a) Information contained in or

pertaining to any asylum applicationshall not be disclosed without thewritten consent of the applicant, exceptas permitted by this section or at thediscretion of the Attorney General.

(b) The confidentiality of otherrecords kept by the Service that indicatethat a specific alien has applied forasylum shall also be protected fromdisclosure. The Service will coordinatewith the Department of State to ensurethat the confidentiality of these recordsis maintained if they are transmitted toDepartment of State offices in othercountries.

(c) This section shall not apply to anydisclosure to:

(1) Any United States Governmentofficial or contractor having a need toexamine information in connectionwith:

(i) The adjudication of asylumapplications;

(ii) The defense of any legal actionarising from the adjudication of orfailure to adjudicate the asylumapplication;

(iii) The defense of any legal action ofwhich the asylum application is a part;or

(iv) Any United States Governmentinvestigation concerning any criminal orcivil matter; or

(2) Any Federal, state, or local courtin the United States considering anylegal action:

(i) Arising from the adjudication of orfailure to adjudicate the asylumapplication; or

(ii) Arising from the proceedings ofwhich the asylum application is a part.

§ 208.7 Employment authorization.(a) Application and approval. (1)

Subject to the restrictions contained insections 208(d) and 236(a) of the Act, anapplicant for asylum who is not anaggravated felon shall be eligiblepursuant to §§ 274a.12(c)(8) and274a.13(a) of this chapter to submit aForm I–765, Application forEmployment Authorization. Except inthe case of an alien whose asylumapplication has been recommended forapproval, or in the case of an alien whofiled an asylum application prior toJanuary 4, 1995, the application shall besubmitted no earlier than 150 days afterthe date on which a complete asylumapplication submitted in accordancewith §§ 208.3 and 208.4 has beenreceived. In the case of an applicantwhose asylum application has beenrecommended for approval, theapplicant may apply for employmentauthorization when he or she receivesnotice of the recommended approval. Ifan asylum application has beenreturned as incomplete in accordancewith § 208.3(c)(3), the 150-day periodwill commence upon receipt by theService of a complete asylumapplication. An applicant whose asylumapplication has been denied by anasylum officer or by an immigrationjudge within the 150-day period shallnot be eligible to apply for employmentauthorization. If an asylum applicationis denied prior to a decision on theapplication for employmentauthorization, the application foremployment authorization shall bedenied. If the asylum application is notso denied, the Service shall have 30days from the date of filing of the FormI–765 to grant or deny that application,except that no employmentauthorization shall be issued to anasylum applicant prior to the expirationof the 180-day period following the

filing of the asylum application filed onor after April 1, 1997.

(2) The time periods within which thealien may not apply for employmentauthorization and within which theService must respond to any suchapplication and within which theasylum application must be adjudicatedpursuant to section 208(d)(5)(A)(iii) ofthe Act shall begin when the alien hasfiled a complete asylum application inaccordance with §§ 208.3 and 208.4.Any delay requested or caused by theapplicant shall not be counted as part ofthese time periods. Such time periodsalso shall be extended by the equivalentof the time between issuance of arequest for evidence under § 103.2(b)(8)of this chapter and the receipt of theapplicant’s response to such request.

(3) The provisions of paragraphs (a)(1)and (a)(2) of this section apply toapplications for asylum filed on or afterJanuary 4, 1995.

(4) Employment authorizationpursuant to § 274a.12(c)(8) of thischapter may not be granted to an alienwho fails to appear for a scheduledinterview before an asylum officer or ahearing before an immigration judge,unless the applicant demonstrates thatthe failure to appear was the result ofexceptional circumstances.

(b) Renewal and termination.Employment authorization shall berenewable, in increments to bedetermined by the Commissioner, forthe continuous period of time necessaryfor the asylum officer or immigrationjudge to decide the asylum applicationand, if necessary, for completion of anyadministrative or judicial review.

(1) If the asylum application is deniedby the asylum officer, the employmentauthorization shall terminate at theexpiration of the employmentauthorization document or 60 days afterthe denial of asylum, whichever islonger.

(2) If the application is denied by theimmigration judge, the Board ofImmigration Appeals, or a Federal court,the employment authorizationterminates upon the expiration of theemployment authorization document,unless the applicant has filed anappropriate request for administrative orjudicial review.

(c) Supporting evidence for renewal ofemployment authorization. In order foremployment authorization to berenewed under this section, the alienmust provide the Service (in accordancewith the instructions on or attached tothe employment authorizationapplication) with a Form I–765, therequired fee (unless waived inaccordance with § 103.7(c) of thischapter), and (if applicable) proof that


he or she has continued to pursue hisor her asylum application before animmigration judge or soughtadministrative or judicial review. Forpurposes of employment authorization,pursuit of an asylum application isestablished by presenting to the Serviceone of the following, depending on thestage of the alien’s immigrationproceedings:

(1) If the alien’s case is pending inproceedings before the immigrationjudge, and the alien wishes to continueto pursue his or her asylum application,a copy of any asylum denial, referralnotice, or charging document placingthe alien in such proceedings;

(2) If the immigration judge hasdenied asylum, a copy of the documentissued by the Board of ImmigrationAppeals to show that a timely appealhas been filed from a denial of theasylum application by the immigrationjudge; or

(3) If the Board of ImmigrationAppeals has dismissed the alien’sappeal of a denial of asylum, orsustained an appeal by the Service of agrant of asylum, a copy of the petitionfor judicial review or for habeas corpuspursuant to section 242 of the Act, datestamped by the appropriate court.

(d) In order for employmentauthorization to be renewed before itsexpiration, the application for renewalmust be received by the Service 90 daysprior to expiration of the employmentauthorization.

§ 208.8 Limitations on travel outside theUnited States.

(a) An applicant who leaves theUnited States without first obtainingadvance parole under § 212.5(e) of thischapter shall be presumed to haveabandoned his or her application underthis section.

(b) An applicant who leaves theUnited States pursuant to advanceparole under § 212.5(e) of this chapterand returns to the country of claimedpersecution shall be presumed to haveabandoned his or her application,unless the applicant is able to establishcompelling reasons for such return.

§ 208.9 Procedure for interview before anasylum officer.

(a) The Service shall adjudicate theclaim of each asylum applicant whoseapplication is complete within themeaning of § 208.3(c)(3) and is withinthe jurisdiction of the Service.

(b) The asylum officer shall conductthe interview in a nonadversarialmanner and, except at the request of theapplicant, separate and apart from thegeneral public. The purpose of theinterview shall be to elicit all relevant

and useful information bearing on theapplicant’s eligibility for asylum. At thetime of the interview, the applicantmust provide complete informationregarding his or her identity, includingname, date and place of birth, andnationality, and may be required toregister this identity electronically orthrough any other means designated bythe Attorney General. The applicantmay have counsel or a representativepresent, may present witnesses, andmay submit affidavits of witnesses andother evidence.

(c) The asylum officer shall haveauthority to administer oaths, verify theidentity of the applicant (includingthrough the use of electronic means),verify the identity of any interpreter,present and receive evidence, andquestion the applicant and anywitnesses.

(d) Upon completion of the interview,the applicant or the applicant’srepresentative shall have an opportunityto make a statement or comment on theevidence presented. The asylum officermay, in his or her discretion, limit thelength of such statement or commentand may require its submission inwriting. Upon completion of theinterview, the applicant shall beinformed that he or she must appear inperson to receive and to acknowledgereceipt of the decision of the asylumofficer and any other accompanyingmaterial at a time and place designatedby the asylum officer, except asotherwise provided by the asylumofficer. An applicant’s failure to appearto receive and acknowledge receipt ofthe decision shall be treated as delaycaused by the applicant for purposes of§ 208.7(a)(3) and shall extend the periodwithin which the applicant may notapply for employment authorization bythe number of days until the applicantdoes appear to receive and acknowledgereceipt of the decision or until theapplicant appears before an immigrationjudge in response to the issuance of acharging document under § 208.14(b).

(e) The asylum officer shall considerevidence submitted by the applicanttogether with his or her asylumapplication, as well as any evidencesubmitted by the applicant before or atthe interview. As a matter of discretion,the asylum officer may grant theapplicant a brief extension of timefollowing an interview during which theapplicant may submit additionalevidence. Any such extension shallextend by an equivalent time theperiods specified by § 208.7 for thefiling and adjudication of anyemployment authorization application.

(f) The asylum application, allsupporting information provided by the

applicant, any comments submitted bythe Department of State or by theService, and any other informationspecific to the applicant’s case andconsidered by the asylum officer shallcomprise the record.

(g) An applicant unable to proceedwith the interview in English mustprovide, at no expense to the Service, acompetent interpreter fluent in bothEnglish and the applicant’s nativelanguage or any other language in whichthe applicant is fluent. The interpretermust be at least 18 years of age. Neitherthe applicant’s attorney orrepresentative of record, a witnesstestifying on the applicant’s behalf, nora representative or employee of theapplicant’s country of nationality, or ifstateless, country of last habitualresidence, may serve as the applicant’sinterpreter. Failure without good causeto comply with this paragraph may beconsidered a failure to appear for theinterview for purposes of § 208.10.

§ 208.10 Failure to appear at an interviewbefore an asylum officer.

Failure to appear for a scheduledinterview without prior authorizationmay result in dismissal of theapplication or waiver of the right to aninterview. Failure to appear shall beexcused if the notice of the interviewwas not mailed to the applicant’scurrent address and such address hadbeen provided to the Office ofInternational Affairs by the applicantprior to the date of mailing inaccordance with section 265 of the Actand regulations promulgatedthereunder, unless the asylum officerdetermines that the applicant receivedreasonable notice of the interview.Failure to appear will be excused if theapplicant demonstrates that such failurewas the result of exceptionalcircumstances.

§ 208.11 Comments from the Departmentof State.

(a) The Service shall forward to theDepartment of State a copy of eachcompleted application it receives. At itsoption, the Department of State mayprovide detailed country conditionsinformation relevant to eligibility forasylum or withholding of removal.

(b) At its option, the Department ofState may also provide:

(1) An assessment of the accuracy ofthe applicant’s assertions aboutconditions in his or her country ofnationality or habitual residence and hisor her particular situation;

(2) Information about whether personswho are similarly situated to theapplicant are persecuted in his or hercountry of nationality or habitual


residence and the frequency of suchpersecution; or

(3) Such other information as it deemsrelevant.

(c) Asylum officers and immigrationjudges may request specific commentsfrom the Department of State regardingindividual cases or types of claimsunder consideration, or such otherinformation as they deem appropriate.

(d) Any such comments receivedpursuant to paragraphs (b) and (c) ofthis section shall be made part of therecord. Unless the comments areclassified under the applicableExecutive Order, the applicant shall beprovided an opportunity to review andrespond to such comments prior to theissuance of any decision to deny theapplication.

§ 208.12 Reliance on information compiledby other sources.

(a) In deciding an asylum application,or whether the alien has a credible fearof persecution pursuant to section235(b)(1)(B) of the Act, the asylumofficer may rely on material provided bythe Department of State, the Office ofInternational Affairs, other Serviceoffices, or other credible sources, suchas international organizations, privatevoluntary agencies, news organizations,or academic institutions.

(b) Nothing in this part shall beconstrued to entitle the applicant toconduct discovery directed toward therecords, officers, agents, or employees ofthe Service, the Department of Justice,or the Department of State.

§ 208.13 Establishing asylum eligibility.(a) Burden of proof. The burden of

proof is on the applicant for asylum toestablish that he or she is a refugee asdefined in section 101(a)(42) of the Act.The testimony of the applicant, ifcredible, may be sufficient to sustain theburden of proof without corroboration.The fact that the applicant previouslyestablished a credible fear ofpersecution for purposes of section235(b)(1)(B) of the Act does not relievethe alien of the additional burden ofestablishing eligibility for asylum.

(b) Persecution. The applicant mayqualify as a refugee either because he orshe has suffered past persecution orbecause he or she has a well-foundedfear of future persecution.

(1) Past persecution. An applicantshall be found to be a refugee on thebasis of past persecution if he or she canestablish that he or she has sufferedpersecution in the past in his or hercountry of nationality or last habitualresidence on account of race, religion,nationality, membership in a particularsocial group, or political opinion, and

that he or she is unable or unwilling toreturn to or avail himself or herself ofthe protection of that country owing tosuch persecution.

(i) If it is determined that theapplicant has established pastpersecution, he or she shall bepresumed also to have a well-foundedfear of persecution unless apreponderance of the evidenceestablishes that since the time thepersecution occurred conditions in theapplicant’s country of nationality or lasthabitual residence have changed to suchan extent that the applicant no longerhas a well-founded fear of beingpersecuted if he or she were to return.

(ii) An application for asylum shall bedenied if the applicant establishes pastpersecution under this paragraph but itis also determined that he or she doesnot have a well-founded fear of futurepersecution under paragraph (b)(2) ofthis section, unless it is determined thatthe applicant has demonstratedcompelling reasons for being unwillingto return to his or her country ofnationality or last habitual residencearising out of the severity of the pastpersecution. If the applicantdemonstrates such compelling reasons,he or she may be granted asylum unlesssuch a grant is barred by paragraph (c)of this section .

(2) Well-founded fear of persecution.An applicant shall be found to have awell-founded fear of persecution if he orshe can establish first, that he or she hasa fear of persecution in his or hercountry of nationality or last habitualresidence on account of race, religion,nationality, membership in a particularsocial group, or political opinion;second, that there is a reasonablepossibility of suffering such persecutionif he or she were to return to thatcountry; and third, that he or she isunable or unwilling to return to or availhimself or herself of the protection ofthat country because of such fear. Inevaluating whether the applicant hassustained his or her burden of provingthat he or she has a well-founded fearof persecution, the asylum officer orimmigration judge shall not require theapplicant to provide evidence that he orshe would be singled out individuallyfor persecution if:

(i) The applicant establishes that thereis a pattern or practice in his or hercountry of nationality or last habitualresidence of persecution of a group ofpersons similarly situated to theapplicant on account of race, religion,nationality, membership in a particularsocial group, or political opinion; and

(ii) The applicant establishes his orher own inclusion in and identificationwith such group of persons such that his

or her fear of persecution upon return isreasonable.

(c) Mandatory denials. (1)Applications filed on or after April 1,1997. For applications filed on or afterApril 1, 1997, an applicant shall notqualify for asylum if section 208(a)(2) or208(b)(2) of the Act applies to theapplicant. If the applicant is found to beineligible for asylum under eithersection 208(a)(2) or 208(b)(2) of the Act,the applicant shall be considered foreligibility for withholding of removalunder section 241(b)(3) of the Act.

(2) Applications filed before April 1,1997. (i) An immigration judge orasylum officer shall not grant asylum toany applicant who filed his or herapplication before April 1, 1997, if thealien:

(A) Having been convicted by a finaljudgment of a particularly serious crimein the United States, constitutes adanger to the community;

(B) Has been firmly resettled withinthe meaning of § 208.15;

(C) Can reasonably be regarded as adanger to the security of the UnitedStates;

(D) Has been convicted of anaggravated felony, as defined in section101(a)(43) of the Act; or

(E) Ordered, incited, assisted, orotherwise participated in thepersecution of any person on account ofrace, religion, nationality, membershipin a particular social group, or politicalopinion.

(ii) If the evidence indicates that oneof the above grounds apply to theapplicant, he or she shall have theburden of proving by a preponderanceof the evidence that he or she did notso act.

(d) Discretionary denial. An asylumapplication may be denied in thediscretion of the Attorney General if thealien can be removed to a third countrywhich has offered resettlement and inwhich the alien would not face harm orpersecution.

§ 208.14 Approval, denial, or referral ofapplication.

(a) By an immigration judge. Unlessotherwise prohibited in § 208.13(c), animmigration judge may grant or denyasylum in the exercise of discretion toan applicant who qualifies as a refugeeunder section 101(a)(42) of the Act.

(b) By an asylum officer. Unlessotherwise prohibited in § 208.13(c):

(1) An asylum officer may grantasylum in the exercise of discretion toan applicant who qualifies as a refugeeunder section 101(a)(42) of the Act.

(2) If the alien appears to bedeportable, excludable or removableunder section 240 of the Act, the asylum


officer shall either grant asylum or referthe application to an immigration judgefor adjudication in deportation,exclusion, or removal proceedings. Anasylum officer may refer such anapplication after an interviewconducted in accordance with § 208.9 orif, in accordance with § 208.10, theapplicant is deemed to have waived hisor her right to an interview.

(3) If the applicant is maintainingvalid nonimmigrant status at the timethe application is decided, the asylumofficer may grant or deny asylum,except in the case of an applicantdescribed in § 208.2(b)(1).

(c) Applicability of § 103.2(b) of thischapter. No application for asylum orwithholding of deportation shall besubject to denial pursuant to § 103.2(b)of this chapter.

(d) Duration. If the alien’s asylumapplication is granted, the grant will beeffective for an indefinite period, subjectto termination as provided in § 208.22.

(e) Effect of denial of principal’sapplication on separate applications bydependents. The denial of an asylumapplication filed by a principalapplicant for asylum shall also result inthe denial of asylum status to anydependents of that principal applicantwho are included in that sameapplication. Such denial shall notpreclude a grant of asylum for anotherwise eligible dependent who hasfiled a separate asylum application, norshall such denial result in an otherwiseeligible dependent becoming ineligibleto apply for asylum due to theprovisions of section 208(a)(2)(C) of theAct.

§ 208.15 Definition of ‘‘firm resettlement.’’An alien is considered to be firmly

resettled if, prior to arrival in the UnitedStates, he or she entered into anothernation with, or while in that nationreceived, an offer of permanent residentstatus, citizenship, or some other type ofpermanent resettlement unless he or sheestablishes:

(a) That his or her entry into thatnation was a necessary consequence ofhis or her flight from persecution, thathe or she remained in that nation onlyas long as was necessary to arrangeonward travel, and that he or she didnot establish significant ties in thatnation; or

(b) That the conditions of his or herresidence in that nation were sosubstantially and consciously restrictedby the authority of the country of refugethat he or she was not in fact resettled.In making his or her determination, theAsylum Officer or Immigration Judgeshall consider the conditions underwhich other residents of the country

live, the type of housing made availableto the refugee, whether permanent ortemporary, the types and extent ofemployment available to the refugee,and the extent to which the refugeereceived permission to hold propertyand to enjoy other rights and privileges,such as travel documentation includinga right of entry or reentry, education,public relief, or naturalization,ordinarily available to others resident inthe country.

§ 208.16 Withholding of removal.(a) Consideration of application for

withholding of removal. An asylumofficer shall not decide whether theexclusion, deportation, or removal of analien to a country where the alien’s lifeor freedom would be threatened must bewithheld, except in the case of an alienwho is otherwise eligible for asylum butis precluded from being granted suchstatus due solely to section 207(a)(5) ofthe Act. In exclusion, deportation, orremoval proceedings, an immigrationjudge may adjudicate both an asylumclaim and a request for withholding ofremoval whether or not asylum isgranted.

(b) Eligibility for withholding ofremoval; burden of proof. The burden ofproof is on the applicant forwithholding of removal to establish thathis or her life or freedom would bethreatened in the proposed country ofremoval on account of race, religion,nationality, membership in a particularsocial group, or political opinion. Thetestimony of the applicant, if credible,may be sufficient to sustain the burdenof proof without corroboration. Theevidence shall be evaluated as follows:

(1) The applicant’s life or freedomshall be found to be threatened if it ismore likely than not that he or shewould be persecuted on account of race,religion, nationality, membership in aparticular social group, or politicalopinion.

(2) If the applicant is determined tohave suffered persecution in the pastsuch that his or her life or freedom wasthreatened in the proposed country ofremoval on account of race, religion,nationality, membership in a particularsocial group, or political opinion, itshall be presumed that his or her life orfreedom would be threatened on returnto that country unless a preponderanceof the evidence establishes thatconditions in the country have changedto such an extent that it is no longermore likely than not that the applicantwould be so persecuted there.

(3) In evaluating whether theapplicant has sustained the burden ofproving that his or her life or freedomwould be threatened in a particular

country on account of race, religion,nationality, membership in a particularsocial group, or political opinion, theasylum officer or immigration judgeshall not require the applicant toprovide evidence that he or she wouldbe singled out individually for suchpersecution if:

(i) The applicant establishes that thereis a pattern or practice in the country ofproposed removal of persecution of agroup of persons similarly situated tothe applicant on account of race,religion, nationality, membership in aparticular social group, or politicalopinion; and

(ii) The applicant establishes his orher own inclusion in and identificationwith such group of persons such that itis more likely than not that his or herlife or freedom would be threatenedupon return.

(c) Approval or denial of application.(1) General. Subject to paragraphs (c)(2)and (c)(3) of this section, an applicationfor withholding of deportation orremoval to a country of proposedremoval shall be granted if theapplicant’s eligibility for withholding isestablished pursuant to paragraph (b) ofthis section.

(2) Mandatory denials. Except asprovided in paragraph (c)(3) of thissection, an application for withholdingof removal shall be denied if theapplicant falls within section241(b)(3)(B) of the Act or, forapplications for withholding ofdeportation adjudicated in proceedingscommenced prior to April 1, 1997,within section 243(h)(2) of the Act as itappeared prior to that date. Forpurposes of section 241(b)(3)(B)(ii) ofthe Act, or section 243(h)(2)(B) of theAct as it appeared prior to April 1, 1997,an alien who has been convicted of aparticularly serious crime shall beconsidered to constitute a danger to thecommunity. If the evidence indicatesthe applicability of one or more of thegrounds for denial enumerated in theAct, the applicant shall have the burdenof proving by a preponderance of theevidence that such grounds do notapply.

(3) Exception to the prohibition onwithholding of deportation in certaincases. Section 243(h)(3) of the Act, asadded by section 413 of Public Law104–132, shall apply only toapplications adjudicated in proceedingscommenced before April 1, 1997, and inwhich final action had not been takenbefore April 24, 1996. The discretionpermitted by that section to overridesection 243(h)(2) of the Act shall beexercised only in the case of anapplicant convicted of an aggravatedfelony (or felonies) where he or she was


sentenced to an aggregate term ofimprisonment of less than 5 years andthe immigration judge determines on anindividual basis that the crime (orcrimes) of which the applicant wasconvicted does not constitute aparticularly serious crime. Nevertheless,it shall be presumed that an alienconvicted of an aggravated felony hasbeen convicted of a particularly seriouscrime. Except in the cases specified inthis paragraph, the grounds for denial ofwithholding of deportation in section243(h)(2) of the Act as it appeared priorto April 1, 1997, shall be deemed tocomply with the 1967 Protocol Relatingto the Status of Refugees.

(d) Reconsideration of discretionarydenial of asylum. In the event that anapplicant is denied asylum solely in theexercise of discretion, and the applicantis subsequently granted withholding ofdeportation or removal under thissection, thereby effectively precludingadmission of the applicant’s spouse orminor children following to join him orher, the denial of asylum shall bereconsidered. Factors to be consideredwill include the reasons for the denialand reasonable alternatives available tothe applicant such as reunification withhis or her spouse or minor children ina third country.

§ 208.17 Decisions.The decision of an asylum officer to

grant or to deny asylum or withholdingof removal, or to refer an asylumapplication in accordance with§ 208.14(b), shall be communicated inwriting to the applicant. Notices ofdecisions to grant or deny asylum, or torefer an application, by asylum officersshall generally be served in personunless, in the discretion of the asylumoffice director, routine service by mail isappropriate. A letter communicatingdenial of the application shall state thebasis for denial of the asylumapplication. The letter also shall containan assessment of the applicant’scredibility, unless the denial is theresult of the applicant’s conviction of anaggravated felony. Pursuant to§ 208.9(d), an applicant must appear inperson to receive and to acknowledgereceipt of the decision.

§ 208.18 Determining if an asylumapplication is frivolous.

For applications filed on or after April1, 1997, an applicant is subject to theprovisions of section 208(d)(6) of theAct only if a final order by animmigration judge or the Board ofImmigration Appeals specifically findsthat the alien knowingly filed afrivolous asylum application. Forpurposes of this section, an asylum

application is frivolous if any of itsmaterial elements is deliberatelyfabricated. Such finding shall only bemade if the immigration judge or theBoard is satisfied that the applicant,during the course of the proceedings,has had sufficient opportunity toaccount for any discrepancies orimplausible aspects of the claim.

§ 208.19 Admission of the asylee’s spouseand children.

(a) Eligibility. A spouse, as defined insection 101(a)(35) of the Act, 8 U.S.C.1101(a)(35), or child, as defined insection 101(b)(1)(A), (B), (C), (D), (E), or(F) of the Act, also may be grantedasylum if accompanying or following tojoin the principal alien who was grantedasylum, unless it is determined that:

(1) The spouse or child ordered,incited, assisted, or otherwiseparticipated in the persecution of anypersons on account of race, religion,nationality, membership in a particularsocial group, or political opinion;

(2) The spouse or child, having beenconvicted by a final judgment of aparticularly serious crime in the UnitedStates, constitutes a danger to thecommunity of the United States;

(3) The spouse or child has beenconvicted of an aggravated felony, asdefined in section 101(a)(43) of the Act;or

(4) There are reasonable grounds forregarding the spouse or child a dangerto the security of the United States.

(b) Relationship. The relationship ofspouse and child as defined in section101(b)(1) of the Act must have existedat the time the principal alien’s asylumapplication was approved, except forchildren born to or legally adopted bythe principal alien and spouse afterapproval of the principal alien’s asylumapplication.

(c) Spouse or child in the UnitedStates. When a spouse or child of analien granted asylum is in the UnitedStates but was not included in theprincipal alien’s application, theprincipal alien may request asylum forthe spouse or child by filing Form I–730with the District Director havingjurisdiction over his only place ofresidence, regardless of the status of thatspouse or child in the United States.

(d) Spouse or child outside the UnitedStates. When a spouse or child of analien granted asylum is outside theUnited States, the principal alien mayrequest asylum for the spouse or childby filing form I–730 with the DistrictDirector, setting forth the full name,relationship, date and place of birth,and current location of each suchperson. Upon approval of the request,the District Director shall notify the

Department of State, which will send anauthorization cable to the AmericanEmbassy or Consulate havingjurisdiction over the area in which theasylee’s spouse or child is located.

(e) Denial. If the spouse or child isfound to be ineligible for the statusaccorded under section 208(c) of theAct, a written notice stating the basis fordenial shall be forwarded to theprincipal alien. No appeal shall lie fromthis decision.

(f) Burden of proof. To establish theclaim of relationship of spouse or childas defined in section 101(b)(1) of theAct, evidence must be submitted withthe request as set forth in part 204 ofthis chapter. Where possible this willconsist of the documents specified in 8CFR 204.2(c) (2) and (3). The burden ofproof is on the principal alien toestablish by a preponderance of theevidence that any person on whosebehalf he or she is making a requestunder this section is an eligible spouseor child.

(g) Duration. The spouse or childqualifying under section 208(c) of theAct shall be granted asylum for anindefinite period unless the principal’sstatus is revoked.

§ 208.20 Effect on exclusion, deportation,and removal proceedings.

(a) An alien who has been grantedasylum may not be deported or removedunless his or her asylum status isterminated pursuant to § 208.22. Analien in exclusion, deportation, orremoval proceedings who is grantedwithholding of removal or deportationmay not be deported or removed to thecountry to which his or her deportationor removal is ordered withheld unlessthe withholding order is terminatedpursuant to § 208.22.

(b) When an alien’s asylum status orwithholding of removal or deportationis terminated under this chapter, theService shall initiate removalproceedings under section 235 or 240 ofthe Act, as appropriate, if the alien isnot already in exclusion, deportation, orremoval proceedings. Removalproceedings may also be in conjunctionwith a termination hearing scheduledunder § 208.22(e).

§ 208.21 Restoration of status.An alien who was maintaining his or

her nonimmigrant status at the time offiling an asylum application and hassuch application denied may continuein or be restored to that status, if it hasnot expired.

§ 208.22 Termination of asylum orwithholding of removal or deportation.

(a) Termination of asylum by theService. Except as provided in


paragraph (e) of this section, an asylumofficer may terminate a grant of asylummade under the jurisdiction of anasylum officer or a district director iffollowing an interview, the asylumofficer determines that:

(1) There is a showing of fraud in thealien’s application such that he or shewas not eligible for asylum at the timeit was granted;

(2) As to applications filed on or afterApril 1, 1997, one or more of theconditions described in section208(c)(2) of the Act exist; or

(3) As to applications filed beforeApril 1, 1997, the alien no longer has awell-founded fear of persecution uponreturn due to a change of countryconditions in the alien’s country ofnationality or habitual residence or thealien has committed any act that wouldhave been grounds for denial of asylumunder § 208.13(c)(2).

(b) Termination of withholding ofdeportation or removal by the Service.Except as provided in paragraph (e) ofthis section, an asylum officer mayterminate a grant of withholding ofdeportation or removal made under thejurisdiction of an asylum officer or adistrict director if the asylum officerdetermines, following an interview,that:

(1) The alien is no longer entitled towithholding of deportation or removaldue to a change of conditions in thecountry to which removal was withheld;

(2) There is a showing of fraud in thealien’s application such that the alienwas not eligible for withholding ofremoval at the time it was granted;

(3) The alien has committed any otheract that would have been grounds fordenial of withholding of removal undersection 241(b)(3)(B) of the Act had itoccurred prior to the grant ofwithholding of removal; or

(4) For applications filed inproceedings commenced before April 1,1997, the alien has committed any actthat would have been grounds for denialof withholding of deportation undersection 243(h)(2) of the Act.

(c) Procedure. Prior to the terminationof a grant of asylum or withholding ofdeportation or removal, the alien shallbe given notice of intent to terminate,with the reasons therefor, at least 30days prior to the interview specified inparagraph (a) of this section before anasylum officer. The alien shall beprovided the opportunity to presentevidence showing that he or she is stilleligible for asylum or withholding ofdeportation or removal. If the asylumofficer determines that the alien is nolonger eligible for asylum orwithholding of deportation or removal,the alien shall be given written notice

that asylum status or withholding ofdeportation or removal and anyemployment authorization issuedpursuant thereto, are terminated.

(d) Termination of derivative status.The termination of asylum status for aperson who was the principal applicantshall result in termination of the asylumstatus of a spouse or child whose statuswas based on the asylum application ofthe principal. Such termination shallnot preclude the spouse or child of suchalien from separately asserting anasylum or withholding of deportation orremoval claim.

(e) Termination of asylum orwithholding of deportation or removalby the Executive Office for ImmigrationReview. An immigration judge or theBoard of Immigration Appeals mayreopen a case pursuant to § 3.2 or § 3.23of this chapter for the purpose ofterminating a grant of asylum orwithholding of deportation or removalmade under the jurisdiction of animmigration judge. In such a reopenedproceeding, the Service must establish,by a preponderance of evidence, one ormore of the grounds set forth inparagraphs (a) or (b) of this section. Inaddition, an immigration judge mayterminate a grant of asylum orwithholding of deportation or removalmade under the jurisdiction of theService at any time after the alien hasbeen provided a notice of intent toterminate by the Service. Anytermination under this paragraph mayoccur in conjunction with an exclusion,deportation or removal proceeding.

(f) Termination of asylum for arrivingaliens. If the Service determines that anapplicant for admission who hadpreviously been granted asylum in theUnited States falls within conditions setforth in section 208(c)(2) of the Act andis inadmissible, the Service shall issuea notice of intent to terminate asylumand initiate removal proceedings undersection 240 of the Act. The alien shallpresent his or her response to the intentto terminate during proceedings beforethe immigration judge.

§§ 208.23—208.29 [Reserved]

Subpart B—Credible Fear ofPersecution

§ 208.30 Credible fear determinationsinvolving stowaways and applicants foradmission found inadmissible pursuant tosection 212(a)(6)(C) or 212(a)(7) of the Act.

(a) Jurisdiction. The provisions of thissubpart apply to aliens subject tosections 235(a)(2) and 235(b)(1) of theAct. Pursuant to section 235(b)(1)(B) ofthe Act, the Service has exclusivejurisdiction to make credible feardeterminations, and the Executive

Office for Immigration Review hasexclusive jurisdiction to review suchdeterminations. Except as otherwiseprovided in this subpart, paragraphs (b)through (e) of this section are theexclusive procedures applicable tocredible fear interviews, determinations,and review under section 235(b)(1)(B) ofthe Act.

(b) Interview and procedure. Theasylum officer, as defined in section235(b)(1)(E) of the Act, will conduct theinterview in a nonadversarial manner,separate and apart from the generalpublic. At the time of the interview, theasylum officer shall verify that the alienhas received Form M–444, Informationabout Credible Fear Interview inExpedited Removal Cases. The officershall also determine that the alien hasan understanding of the credible feardetermination process. The alien may berequired to register his or her identityelectronically or through any othermeans designated by the AttorneyGeneral. The alien may consult with aperson or persons of the alien’schoosing prior to the interview or anyreview thereof, and may present otherevidence, if available. Such consultationshall be at no expense to theGovernment and shall not unreasonablydelay the process. Any person orpersons with whom the alien chooses toconsult may be present at the interviewand may be permitted, in the discretionof the asylum officer, to present astatement at the end of the interview.The asylum officer, in his or herdiscretion, may place reasonable limitson the number of such persons who maybe present at the interview and on thelength of statement or statements made.If the alien is unable to proceedeffectively in English, and if the asylumofficer is unable to proceed competentlyin a language chosen by the alien, theasylum officer shall arrange for theassistance of an interpreter inconducting the interview. Theinterpreter may not be a representativeor employee of the applicant’s countryof nationality or, if the applicant isstateless, the applicant’s country of lasthabitual residence. The asylum officershall create a summary of the materialfacts as stated by the applicant. At theconclusion of the interview, the officershall review the summary with the alienand provide the alien with anopportunity to correct errors therein.The asylum officer shall create a writtenrecord of his or her determination,including a summary of the materialfacts as stated by the applicant, anyadditional facts relied on by the officer,and the officer’s determination ofwhether, in light of such facts, the alien


has established a credible fear ofpersecution. The decision shall notbecome final until reviewed by asupervisory asylum officer.

(c) Authority. Asylum officersconducting credible fear interviewsshall have the authorities described in§ 208.9(c).

(d) Referral for an asylum hearing. Ifan alien, other than an alien stowaway,is found to have a credible fear ofpersecution, the asylum officer will soinform the alien and issue a Form I–862,Notice to Appear, for full considerationof the asylum claim in proceedingsunder section 240 of the Act. Parole ofthe alien may only be considered inaccordance with section 212(d)(5) of theAct and § 212.5 of this chapter. If analien stowaway is found to have acredible fear of persecution, the asylumofficer will so inform the alien and issuea Form I–863, Notice to Referral toImmigration Judge, for fullconsideration of the asylum claim inproceedings under § 208.2(b)(1).

(e) Removal of aliens with no crediblefear of persecution. If an alien is foundnot to have a credible fear ofpersecution, the asylum officer shallprovide the alien with a written noticeof decision and inquire whether thealien wishes to have an immigrationjudge review the negative decision,using Form I–869, Record of NegativeCredible Fear Finding and Request forReview by Immigration Judge, on whichthe alien shall indicate whether he orshe desires such review. If the alien isnot a stowaway, the officer shall alsoorder the alien removed and issue aForm I–860, Notice and Order ofExpedited Removal. If the alien is astowaway and the alien does not requesta review by an immigration judge, theasylum officer shall also refer the aliento the district director for completion ofremoval proceedings in accordance withsection 235(a)(2) of the Act.

(f) Review by immigration judge. Theasylum officer’s negative decisionregarding credible fear shall be subjectto review by an immigration judge uponthe applicant’s request, in accordancewith section 235(b)(1)(B)(iii)(III) of theAct. If the alien requests such review,the asylum officer shall arrange for thedetention of the alien and serve him orher with a Form I–863, Notice ofReferral to Immigration Judge. Therecord of determination, includingcopies of the Form I–863, the asylumofficer’s notes, the summary of thematerial facts, and other materials uponwhich the determination was basedshall be provided to the immigrationjudge with the negative determination.Upon review of the asylum officer’snegative credible fear determination:

(1) If the immigration judge concurswith the determination of the asylumofficer that the alien does not have acredible fear of persecution, the caseshall be returned to the Service forremoval of the alien.

(2) If the immigration judge finds thatthe alien, other than an alien stowaway,possesses a credible fear of persecution,the immigration judge shall vacate theorder of the asylum officer issued onForm I–860 and the Service maycommence removal proceedings undersection 240 of the Act, during whichtime the alien may file an asylumapplication in accordance with§ 208.4(b)(3)(i).

(3) If the immigration judge finds thatan alien stowaway possesses a crediblefear of persecution, the alien shall beallowed to file an asylum applicationbefore the immigration judge inaccordance with § 208.4(b)(3)(iii). Theimmigration judge shall decide theasylum application as provided in thatsection. Such decision may be appealedby either the stowaway or the Service tothe Board of Immigration Appeals. Ifand when a denial of the asylumapplication becomes final, the alienshall be removed from the United Statesin accordance with section 235(a)(2) ofthe Act. If and when an approval of theasylum application becomes final, theService shall terminate removalproceedings under section 235(a)(2) ofthe Act.

PART 209—ADJUSTMENT OF STATUSOF REFUGEES AND ALIENSGRANTED ASYLUM


Authority: 8 U.S.C. 1101, 1103, 1157, 1158,1159, 1228, 1252, 1282; 8 CFR part 2.

§ 209.1 [Amended]

44. In § 209.1, paragraph (a)(1) isamended in the first sentence byrevising the reference to ‘‘, 236, and237’’ to read ‘‘and 240’’.

45. In § 209.2, the last sentence ofparagraph (c) is revised to read asfollows:

§ 209.2 Adjustment of status of aliengranted asylum.

* * * * *(c) Application. * * * If an alien has

been placed in deportation, exclusion,or removal proceedings under anysection of this Act (as effective on thedate such proceedings commenced), theapplication can be filed and consideredonly in those proceedings.* * * * *

PART 211—DOCUMENTARYREQUIREMENTS: IMMIGRANTS;WAIVERS

46. Part 211 is revised to read asfollows:Sec.211.1 Visas.211.2 Passports.211.3 Expiration of immigrant visas, reentry

permits, refugee travel documents, andForms I–551.

211.4 Waiver of documents for returningresidents.

211.5 Alien commuters.Authority: 8 U.S.C. 1101, 1103, 1181, 1182,

1203, 1225, 1257; 8 CFR part 2.

§ 211.1 Visas.(a) General. Except as provided in

paragraph (b) of this section, eacharriving alien applying for admission (orboarding the vessel or aircraft on whichhe or she arrives) into the United Statesfor lawful permanent residence, or as alawful permanent resident returning toan unrelinquished lawful permanentresidence in the United States, shallpresent one of the following:

(1) A valid, unexpired immigrant visa;(2) A valid, unexpired Form I–551,

Alien Registration Receipt Card, ifseeking readmission after a temporaryabsence of less than 1 year, or in thecase of a crewmember regularly servingon board a vessel or aircraft of UnitedStates registry seeking readmission afterany temporary absence connected withhis or her duties as a crewman;

(3) A valid, unexpired Form I–327,Permit to Reenter the United States;

(4) A valid, unexpired Form I–571,Refugee Travel Document, properlyendorsed to reflect admission as alawful permanent resident;

(5) An expired Form I–551, AlienRegistration Receipt Card, accompaniedby a filing receipt issued within theprevious 6 months for either a Form I–751, Petition to Remove the Conditionson Residence, or Form I–829, Petitionby Entrepreneur to Remove Conditions,if seeking admission or readmissionafter a temporary absence of less than 1year;

(6) A Form I–551, whether or notexpired, presented by a civilian ormilitary employee of the United StatesGovernment who was outside theUnited States pursuant to official orders,or by the spouse or child of suchemployee who resided abroad while theemployee or serviceperson was onoverseas duty and who is preceding,accompanying or following to joinwithin 4 months the employee,returning to the United States; or

(7) Form I–551, whether or notexpired, or a transportation letter issuedby an American consular officer,


presented by an employee of theAmerican University of Beirut, who wasso employed immediately precedingtravel to the United States, returningtemporarily to the United States beforeresuming employment with theAmerican University of Beirut, orresuming permanent residence in theUnited States.

(b) Waivers. (1) A waiver of the visarequired in paragraph (a) of this sectionshall be granted without fee orapplication by the district director,upon presentation of the child’s birthcertificate, to a child born subsequent tothe issuance of an immigrant visa to hisor her accompanying parent whoapplies for admission during thevalidity of such a visa; or a child bornduring the temporary visit abroad of amother who is a lawful permanentresident alien, or a national, of theUnited States, provided that the child’sapplication for admission to the UnitedStates is made within 2 years of birth,the child is accompanied by the parentwho is applying for readmission as apermanent resident upon the first returnof the parent to the United States afterthe birth of the child, and theaccompanying parent is found to beadmissible to the United States.

(2) For an alien described inparagraph (b)(1) of this section,recordation of the child’s entry shall beon Form I–181, Memorandum ofCreation of Record of Admission forLawful Permanent Residence. Thecarrier of such alien shall not be liablefor a fine pursuant to section 273 of theAct.

(3) If an immigrant alien returning toan unrelinquished lawful permanentresidence in the United States after atemporary absence abroad believes thatgood cause exists for his or her failureto present an immigrant visa, Form I–551, or reentry permit, the alien may filean application for a waiver of thisrequirement with the district director incharge of the port-of-entry. To apply forthis waiver, the alien must file Form I–193, Application for Waiver of Passportand/or Visa, with the fee prescribed in§ 103.7(b)(1) of this chapter, except thatif the alien’s Form I–551 was lost orstolen, the alien shall instead file FormI–90, Application to Replace AlienRegistration Receipt Card, with the feeprescribed in § 103.7(b)(1) of thischapter, provided the temporaryabsence did not exceed 1 year. In theexercise of discretion, the districtdirector in charge of the port-of-entrymay waive the alien’s lack of animmigrant visa, Form I–551, or reentrypermit and admit the alien as areturning resident, if the district directoris satisfied that the alien has established

good cause for the alien’s failure topresent an immigrant visa, Form I–551,or reentry permit. Filing the Form I–90will serve as both application forreplacement and as application forwaiver of passport and visa, without theobligation to file a separate waiverapplication.

(c) Immigrants having occupationalstatus defined in section 101(a)(15) (A),(E), or (G) of the Act. An immigrant visa,reentry permit, or Form I–551 shall beinvalid when presented by an alien whohas an occupational status under section101(a)(15) (A), (E), or (G) of the Act,unless he or she has previouslysubmitted, or submits at the time he orshe applies for admission to the UnitedStates, the written waiver required bysection 247(b) of the Act and 8 CFR part247.

(d) Returning temporary residents. (1)Form I–688, Temporary Resident Card,may be presented in lieu of animmigrant visa by an alien whose statushas been adjusted to that of a temporaryresident under the provisions of § 210.1of this chapter, such status not havingchanged, and who is returning to anunrelinquished residence within oneyear after a temporary absence abroad.

(2) Form I–688 may be presented inlieu of an immigrant visa by an alienwhose status has been adjusted to thatof a temporary resident under theprovisions of § 245a.2 of this chapter,such status not having changed, andwho is returning to an unrelinquishedresidence within 30 days after atemporary absence abroad, providedthat the aggregate of all such absencesabroad during the temporary residenceperiod has not exceeded 90 days.

§ 211.2 Passports.(a) A passport valid for the bearer’s

entry into a foreign country at least 60days beyond the expiration date of hisor her immigrant visa shall be presentedby each immigrant except an immigrantwho:

(1) Is the parent, spouse, or unmarriedson or daughter of a United Statescitizen or of an alien lawful permanentresident of the United States;

(2) Is entering under the provisions of§ 211.1(a)(2) through (a)(7);

(3) Is a child born during thetemporary visit abroad of a mother whois a lawful permanent resident alien, ora national, of the United States,provided that the child’s application foradmission to the United States is madewithin 2 years of birth, the child isaccompanied by the parent who isapplying for readmission as apermanent resident upon the first returnof the parent to the United States afterthe birth of the child, and the

accompanying parent is found to beadmissible to the United States;

(4) Is a stateless person or a personwho because of his or her opposition toCommunism is unwilling or unable toobtain a passport from the country of hisor her nationality, or is theaccompanying spouse or unmarried sonor daughter of such immigrant; or

(5) Is a member of the Armed Forcesof the United States.

(b) Except as provided in paragraph(a) of this section, if an alien seekingadmission as an immigrant with animmigrant visa believes that good causeexists for his or her failure to present apassport, the alien may file anapplication for a waiver of thisrequirement with the district director incharge of the port-of-entry. To apply forthis waiver, the alien must file Form I–193, Application for Waiver of Passportand/or Visa, with the fee prescribed in§ 103.7(b)(1) of this chapter. In theexercise of discretion, the districtdirector in charge of the port-of-entrymay waive the alien’s lack of passportand admit the alien as an immigrant, ifthe district director is satisfied that thealien has established good cause for thealien’s failure to present a passport.

§ 211.3 Expiration of immigrant visas,reentry permits, refugee travel documents,and Forms I–551.

An immigrant visa, reentry permit,refugee travel document, or Form I—551shall be regarded as unexpired if therightful holder embarked or enplanedbefore the expiration of his or herimmigrant visa, reentry permit, orrefugee travel document, or with respectto Form I—551, before the firstanniversary of the date on which he orshe departed from the United States,provided that the vessel or aircraft onwhich he or she so embarked orenplaned arrives in the United States orforeign contiguous territory on acontinuous voyage. The continuity ofthe voyage shall not be deemed to havebeen interrupted by scheduled oremergency stops of the vessel or aircraften route to the United States or foreigncontiguous territory, or by a layover inforeign contiguous territory necessitatedsolely for the purpose of effecting atransportation connection to the UnitedStates.

§ 211.4 Waiver of documents for returningresidents.

(a) Pursuant to the authoritycontained in section 211(b) of the Act,an alien previously lawfully admitted tothe United States for permanentresidence who, upon return from atemporary absence was inadmissiblebecause of failure to have or to present


a valid passport, immigrant visa, reentrypermit, border crossing card, or otherdocument required at the time of entry,may be granted a waiver of suchrequirement in the discretion of thedistrict director if the district directordetermines that such alien:

(1) Was not otherwise inadmissible atthe time of entry, or having beenotherwise inadmissible at the time ofentry is with respect thereto qualifiedfor an exemption from deportabilityunder section 237(a)(1)(H) of the Act;and

(2) Is not otherwise subject toremoval.

(b) Denial of a waiver by the districtdirector is not appealable but shall bewithout prejudice to renewal of anapplication and reconsideration inproceedings before the immigrationjudge.

§ 211.5 Alien commuters.(a) General. An alien lawfully

admitted for permanent residence or aspecial agricultural worker lawfullyadmitted for temporary residence undersection 210 of the Act may commenceor continue to reside in foreigncontiguous territory and commute as aspecial immigrant defined in section101(a)(27)(A) of the Act to his or herplace of employment in the UnitedStates. An alien commuter engaged inseasonal work will be presumed to havetaken up residence in the United Statesif he or she is present in this country formore than 6 months, in the aggregate,during any continuous 12-monthperiod. An alien commuter’s addressreport under section 265 of the Act mustshow his or her actual residence addresseven though it is not in the UnitedStates.

(b) Loss of residence status. An aliencommuter who has been out of regularemployment in the United States for acontinuous period of 6 months shall bedeemed to have lost residence status,notwithstanding temporary entries inthe interim for other than employmentpurposes. An exception applies whenemployment in the United States wasinterrupted for reasons beyond theindividual’s control other than lack of ajob opportunity or the commuter candemonstrate that he or she has worked90 days in the United States in theaggregate during the 12-month periodpreceding the application for admissioninto the United States. Upon loss ofstatus, Form I–551 or I–688 shallbecome invalid and must besurrendered to an immigration officer.

(c) Eligibility for benefits under theimmigration and nationality laws. Untilhe or she has taken up residence in theUnited States, an alien commuter

cannot satisfy the residencerequirements of the naturalization lawsand cannot qualify for any benefitsunder the immigration laws on his orher own behalf or on behalf of his or herrelatives other than as specified inparagraph (a) of this section. When analien commuter takes up residence inthe United States, he or she shall nolonger be regarded as a commuter. He orshe may facilitate proof of having takenup such residence by notifying theService as soon as possible, preferably atthe time of his or her first reentry forthat purpose. Application for issuanceof a new alien registration receipt cardto show that he or she has taken upresidence in the United States shall bemade on Form I–90.

PART 212—DOCUMENTARYREQUIREMENTS: NONIMMIGRANTS;WAIVERS; ADMISSION OF CERTAININADMISSIBLE ALIENS; PAROLE


Authority: 8 U.S.C. 1101, 1102, 1103, 1182,1184, 1187, 1225, 1226, 1227, 1228, 1252; 8CFR part 2.

48. Section 212.5 is amended by:a. Revising paragraph (a) and (b);b. Revising introductory text in

paragraph (c);c. Revising paragraph (c)(1); and byd. Revising paragraph (d)(2)(i), to read

as follows:

§ 212.5 Parole of aliens into the UnitedStates.

(a) The parole of aliens within thefollowing groups who have been or aredetained in accordance with § 235.3(b)or (c) of this chapter would generally bejustified only on a case-by-case basis for‘‘urgent humanitarian reasons’’ or‘‘significant public benefit,’’ providedthe aliens present neither a security risknor a risk of absconding:

(1) Aliens who have serious medicalconditions in which continueddetention would not be appropriate;

(2) Women who have been medicallycertified as pregnant;

(3) Aliens who are defined asjuveniles in § 236.3(a) of this chapter.The district director or chief patrolagent shall follow the guidelines setforth in § 236.3(a) of this chapter andparagraphs (a)(3)(i) through (iii) of thissection in determining under whatconditions a juvenile should be paroledfrom detention:

(i) Juveniles may be released to arelative (brother, sister, aunt, uncle, orgrandparent) not in Service detentionwho is willing to sponsor a minor andthe minor may be released to thatrelative notwithstanding that the

juvenile has a relative who is indetention.

(ii) If a relative who is not indetention cannot be located to sponsorthe minor, the minor may be releasedwith an accompanying relative who isin detention.

(iii) If the Service cannot locate arelative in or out of detention to sponsorthe minor, but the minor has identifieda non-relative in detention whoaccompanied him or her on arrival, thequestion of releasing the minor and theaccompanying non-relative adult shallbe addressed on a case-by-case basis;

(4) Aliens who will be witnesses inproceedings being, or to be, conductedby judicial, administrative, or legislativebodies in the United States; or

(5) Aliens whose continued detentionis not in the public interest asdetermined by the district director orchief patrol agent.

(b) In the cases of all other arrivingaliens, except those detained under§ 235.3(b) or (c) of this chapter andparagraph (a) of this section, the districtdirector or chief patrol agent may, afterreview of the individual case, paroleinto the United States temporarily inaccordance with section 212(d)(5)(A) ofthe Act, any alien applicant foradmission, under such terms andconditions, including those set forth inparagraph (c) of this section, as he orshe may deem appropriate. An alienwho arrives at a port-of-entry andapplies for parole into the United Statesfor the sole purpose of seekingadjustment of status under section 245Aof the Act, without benefit of advanceauthorization as described in paragraph(e) of this section shall be denied paroleand detained for removal in accordancewith the provisions of § 235.3(b) or (c)of this chapter. An alien seeking to enterthe United States for the sole purpose ofapplying for adjustment of status undersection 210 of the Act shall be deniedparole and detained for removal under§ 235.3(b) or (c) of this chapter, unlessthe alien has been recommended forapproval of such application foradjustment by a consular officer at anOverseas Processing Office.

(c) Conditions. In any case where analien is paroled under paragraph (a) or(b) of this section, the district directoror chief patrol agent may requirereasonable assurances that the alien willappear at all hearings and/or depart theUnited States when required to do so.Not all factors listed need be present forparole to be exercised. The districtdirector or chief patrol agent shouldapply reasonable discretion. Theconsideration of all relevant factorsincludes:


(1) The giving of an undertaking bythe applicant, counsel, or a sponsor toensure appearances or departure, and abond may be required on Form I–352 insuch amount as the district director orchief patrol agent may deemappropriate;* * * * *

(d) * * *(2)(i) On notice. In cases not covered

by paragraph (d)(1) of this section, uponaccomplishment of the purpose forwhich parole was authorized or when inthe opinion of the district director orchief patrol agent in charge of the areain which the alien is located, neitherhumanitarian reasons nor public benefitwarrants the continued presence of thealien in the United States, parole shallbe terminated upon written notice to thealien and he or she shall be restored tothe status that he or she had at the timeof parole. When a charging document isserved on the alien, the chargingdocument will constitute written noticeof termination of parole, unlessotherwise specified. Any furtherinspection or hearing shall beconducted under section 235 or 240 ofthe Act and this chapter, or any orderof exclusion, deportation, or removalpreviously entered shall be executed. Ifthe exclusion, deportation, or removalorder cannot be executed by removalwithin a reasonable time, the alien shallagain be released on parole unless in theopinion of the district director or thechief patrol agent the public interestrequires that the alien be continued incustody.* * * * *

49. In § 212.6, paragraph (a)(2) isrevised to read as follows:

§ 212.6 Nonresident alien border crossingcards.

(a) * * *(2) Mexican border crossing card,

Form I–186 or I–586. The rightful holderof a nonresident alien Mexican bordercrossing card, Form I–186 or I–586, maybe admitted under § 235.1(f) of thischapter if found otherwise admissible.However, any alien seeking entry as avisitor for business or pleasure mustalso present a valid passport and shallbe issued Form I–94 if the alien isapplying for admission from:

(i) A country other than Mexico orCanada, or

(ii) Canada if the alien has been in acountry other than the United States orCanada since leaving Mexico.* * * * *

PART 213—ADMISSION OF ALIENSON GIVING BOND OR CASH DEPOSIT


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

§ 213.1 [Amended]51. Section 213.1 is amended in the

last sentence by revising the term ‘‘part103’’ to read ‘‘§ 103.6’’.

PART 214—NONIMMIGRANT CLASSES


Authority: 8 U.S.C. 1101, 1103, 1182, 1184,1186a, 1187, 1221, 1281, 1282; 8 CFR part 2.

53. Section 214.1 is amended byrevising paragraph (c)(4)(iv) to read asfollows:

§ 214.1 Requirements for admission,extension, and maintenance of status.

* * * * *(c) * * *(4) * * *(iv) The alien is not the subject of

deportation proceedings under section242 of the Act (prior to April 1, 1997)or removal proceedings under section240 of the Act.* * * * *

PART 216—CONDITIONAL BASIS OFLAWFUL PERMANENT RESIDENCESTATUS


Authority: 8 U.S.C. 1101, 1103, 1154, 1184,1186a, 1186b, and 8 CFR part 2.


§ 216.3 Termination of conditional residentstatus.

(a) During the two-year conditionalperiod. The director shall send a formalwritten notice to the conditionalpermanent resident of the termination ofthe alien’s conditional permanentresident status if the director determinesthat any of the conditions set forth insection 216(b)(1) or 216A(b)(1) of theAct, whichever is applicable, are true, orit becomes known to the governmentthat an alien entrepreneur who wasadmitted pursuant to section 203(b)(5)of the Act obtained his or herinvestment capital through other thanlegal means (such as through the sale ofillegal drugs). If the Service issues anotice of intent to terminate an alien’sconditional resident status, the directorshall not adjudicate Form I–751 or FormI–829 until it has been determined thatthe alien’s status will not be terminated.During this time, the alien shall

continue to be a lawful conditionalpermanent resident with all the rights,privileges, and responsibilities providedto persons possessing such status. Priorto issuing the notice of termination, thedirector shall provide the alien with anopportunity to review and rebut theevidence upon which the decision is tobe based, in accordance with§ 103.2(b)(2) of this chapter. Thetermination of status, and all of therights and privileges concomitantthereto (including authorization toaccept or continue in employment inthis country), shall take effect as of thedate of such determination by thedirector, although the alien may requesta review of such determination inremoval proceedings. In addition to thenotice of termination, the director shallissue a notice to appear in accordancewith 8 CFR part 239. During the ensuingremoval proceedings, the alien maysubmit evidence to rebut thedetermination of the director. Theburden of proof shall be on the Serviceto establish, by a preponderance of theevidence, that one or more of theconditions in section 216(b)(1) or216A(b)(1) of the Act, whichever isapplicable, are true, or that an alienentrepreneur who was admittedpursuant to section 203(b)(5) of the Actobtained his or her investment capitalthrough other than legal means (such asthrough the sale of illegal drugs).

(b) Determination of fraud after twoyears. If, subsequent to the removal ofthe conditional basis of an alien’spermanent resident status, the directordetermines that an alien spouseobtained permanent resident statusthrough a marriage which was enteredinto for the purpose of evading theimmigration laws or an alienentrepreneur obtained permanentresident status through a commercialenterprise which was improper undersection 216A(b)(1) of the Act, thedirector may institute rescissionproceedings pursuant to section 246 ofthe Act (if otherwise appropriate) orremoval proceedings under section 240of the Act.

56. Section 216.4 is amended by:a. Revising paragraphs (a)(6), and

(b)(3);b. Revising paragraph, (c)(4);c. Removing the unnumbered

paragraph immediately after paragraph(c)(4); and by

d. Revising paragraph (d)(2) to read asfollows:

§ 216.4 Joint petition to removeconditional basis of lawful permanentresident status for alien spouse.

(a) * * *


(6) Termination of status for failure tofile petition. Failure to properly fileForm I–751 within the 90-day periodimmediately preceding the secondanniversary of the date on which thealien obtained lawful permanentresidence on a conditional basis shallresult in the automatic termination ofthe alien’s permanent residence statusand the initiation of proceedings toremove the alien from the United States.In such proceedings the burden shall beon the alien to establish that he or shecomplied with the requirement to filethe joint petition within the designatedperiod. Form I–751 may be filed afterthe expiration of the 90-day period onlyif the alien establishes to the satisfactionof the director, in writing, that there wasgood cause for the failure to file FormI–751 within the required time period.If the joint petition is filed prior to thejurisdiction vesting with theimmigration judge in removalproceedings and the director excusesthe late filing and approves the petition,he or she shall restore the alien’spermanent residence status, remove theconditional basis of such status andcancel any outstanding notice to appearin accordance with § 239.2 of thischapter. If the joint petition is not fileduntil after jurisdiction vests with theimmigration judge, the immigrationjudge may terminate the matter uponjoint motion by the alien and theService.

(b) * * *(3) Termination of status for failure to

appear for interview. If the conditionalresident alien and/or the petitioningspouse fail to appear for an interview inconnection with the joint petitionrequired by section 216(c) of the Act,the alien’s permanent residence statuswill be automatically terminated as ofthe second anniversary of the date onwhich the alien obtained permanentresidence. The alien shall be providedwith written notification of thetermination and the reasons therefor,and a notice to appear shall be issuedplacing the alien under removalproceedings. The alien may seek reviewof the decision to terminate his or herstatus in such proceedings, but theburden shall be on the alien to establishcompliance with the interviewrequirements. If the alien submits awritten request that the interview berescheduled or that the interview bewaived, and the director determines thatthere is good cause for granting therequest, the interview may berescheduled or waived, as appropriate.If the interview is rescheduled at therequest of the petitioners, the Serviceshall not be required to conduct the

interview within the 90-day periodfollowing the filing of the petition.

(c) * * *(4) A fee or other consideration was

given (other than a fee or otherconsideration to an attorney forassistance in preparation of a lawfulpetition) in connection with the filing ofthe petition through which the alienobtained conditional permanentresidence. If derogatory information isdetermined regarding any of theseissues, the director shall offer thepetitioners the opportunity to rebutsuch information. If the petitioners failto overcome such derogatoryinformation the director may deny thejoint petition, terminate the alien’spermanent residence, and issue a noticeto appear to initiate removalproceedings. If derogatory informationnot relating to any of these issues isdetermined during the course of theinterview, such information shall beforwarded to the investigations unit forappropriate action. If no unresolvedderogatory information is determinedrelating to these issues, the petitionshall be approved and the conditionalbasis of the alien’s permanent residencestatus removed, regardless of any actiontaken or contemplated regarding otherpossible grounds for removal.

(d) * * *(2) Denial. If the director denies the

joint petition, he or she shall providewritten notice to the alien of thedecision and the reason(s) therefor andshall issue a notice to appear undersection 239 of the Act and 8 CFR part239. The alien’s lawful permanentresident status shall be terminated as ofthe date of the director’s writtendecision. The alien shall also beinstructed to surrender any AlienRegistration Receipt Card previouslyissued by the Service. No appeal shalllie from the decision of the director;however, the alien may seek review ofthe decision in removal proceedings. Insuch proceedings the burden of proofshall be on the Service to establish, bya preponderance of the evidence, thatthe facts and information set forth bythe petitioners are not true or that thepetition was properly denied.

57. Section 216.5 is amended byrevising paragraphs (a), (d), (e)(1),(e)(3)(ii), and (f) to read as follows:

§ 216.5 Waiver of requirement to file jointpetition to remove conditions by alienspouse.

(a) General. (1) A conditional residentalien who is unable to meet therequirements under section 216 of theAct for a joint petition for removal of theconditional basis of his or herpermanent resident status may file Form

I–751, Petition to Remove theConditions on Residence, if the alienrequests a waiver, was not at fault infailing to meet the filing requirement,and the conditional resident alien isable to establish that:

(i) Deportation or removal from theUnited States would result in extremehardship;

(ii) The marriage upon which his orher status was based was entered into ingood faith by the conditional residentalien, but the marriage was terminatedother than by death, and the conditionalresident was not at fault in failing to filea timely petition; or

(iii) The qualifying marriage wasentered into in good faith by theconditional resident but during themarriage the alien spouse or child wasbattered by or subjected to extremecruelty committed by the citizen orpermanent resident spouse or parent.

(2) A conditional resident who is inexclusion, deportation, or removalproceedings may apply for the waiveronly until such time as there is a finalorder of exclusion, deportation orremoval.* * * * *

(d) Interview. The service centerdirector may refer the application to theappropriate local office and require thatthe alien appear for an interview inconnection with the application for awaiver. The director shall deny theapplication and initiate removalproceedings if the alien fails to appearfor the interview as required, unless thealien establishes good cause for suchfailure and the interview is rescheduled.

(e) Adjudication of waiverapplication. (1) Application based onclaim of hardship. In considering anapplication for a waiver based upon analien’s claim that extreme hardshipwould result from the alien’s removalfrom the United States, the directorshall take into account only thosefactors that arose subsequent to thealien’s entry as a conditional permanentresident. The director shall bear in mindthat any removal from the United Statesis likely to result in a certain degree ofhardship, and that only in those caseswhere the hardship is extreme shouldthe application for a waiver be granted.The burden of establishing that extremehardship exists rests solely with theapplicant.* * * * *

(3) * * *(ii) A conditional resident or former

conditional resident who has notdeparted the United States aftertermination of resident status may applyfor the waiver. The conditional residentmay apply for the waiver regardless of


his or her present marital status. Theconditional resident may still beresiding with the citizen or permanentresident spouse, or may be divorced orseparated.* * * * *

(f) Decision. The director shallprovide the alien with written notice ofthe decision on the application forwaiver. If the decision is adverse, thedirector shall advise the alien of thereasons therefor, notify the alien of thetermination of his or her permanentresidence status, instruct the alien tosurrender any Alien RegistrationReceipt Card issued by the Service andissue a notice to appear placing thealien in removal proceedings. No appealshall lie from the decision of thedirector; however, the alien may seekreview of such decision in removalproceedings.

PART 217—VISA WAIVER PILOTPROGRAM


Authority: 8 U.S.C. 1103, 1187; 8 CFR part2.


§ 217.1 Scope.The Visa Waiver Pilot Program

(VWPP) described in this section isestablished pursuant to the provisionsof section 217 of the Act.


§ 217.2 Eligibility.(a) Definitions. As used in this part,

the term:Carrier refers to the owner, charterer,

lessee, or authorized agent of anycommercial vessel or commercialaircraft engaged in transportingpassengers to the United States from aforeign place.

Designated country refers to Andorra,Argentina, Australia, Austria, Belgium,Brunei, Denmark, Finland, France,Germany, Iceland, Italy, Japan,Liechtenstein, Luxembourg, Monaco,the Netherlands, New Zealand, Norway,San Marino, Spain, Sweden,Switzerland, and the United Kingdom.The United Kingdom refers only toBritish citizens who have theunrestricted right of permanent abode inthe United Kingdom (England, Scotland,Wales, Northern Ireland, the ChannelIslands and the Isle of Man); it does notrefer to British overseas citizens, Britishdependent territories’ citizens, orcitizens of British Commonwealthcountries. Effective April 1, 1995, untilSeptember 30, 1998, or the expiration of

the Visa Waiver Pilot Program,whichever comes first, Ireland has beendesignated as a Visa Waiver PilotProgram country with ProbationaryStatus in accordance with section 217(g)of the Act.

Round trip ticket means any returntrip transportation ticket in the name ofan arriving Visa Waiver Pilot Programapplicant on a participating carrier validfor at least 1 year, electronic ticketrecord, airline employee passesindicating return passage, individualvouchers for return passage, groupvouchers for return passage for charterflights, and military travel orders whichinclude military dependents for returnto duty stations outside the UnitedStates on U.S. military flights. A periodof validity of 1 year need not bereflected on the ticket itself, providedthat the carrier agrees that it will honorthe return portion of the ticket at anytime, as provided in Form I–775, VisaWaiver Pilot Program Agreement.

(b) Special program requirements. (1)General. In addition to meeting all of therequirements for the Visa Waiver PilotProgram specified in section 217 of theAct, each applicant must possess avalid, unexpired passport issued by adesignated country and present acompleted, signed Form I–94W,Nonimmigrant Visa Waiver Arrival/Departure Form.

(2) Persons previously removed asdeportable aliens. Aliens who have beendeported or removed from the UnitedStates, after having been determineddeportable, require the consent of theAttorney General to apply for admissionto the United States pursuant to section212(a)(9)(A)(iii) of the Act. Such personsmay not be admitted to the UnitedStates under the provisions of this partnotwithstanding the fact that therequired consent of the AttorneyGeneral may have been secured. Suchaliens must secure a visa in order to beadmitted to the United States asnonimmigrants, unless otherwiseexempt.

(c) Restrictions on manner of arrival.(1) Applicants arriving by air and sea.Applicants must arrive on a carrier thatis signatory to a Visa Waiver PilotProgram Agreement and at the time ofarrival must have a round trip ticket thatwill transport the traveler out of theUnited States to any other foreign portor place as long as the trip does notterminate in contiguous territory or anadjacent island; except that the roundtrip ticket may transport the traveler tocontiguous territory or an adjacentisland, if the traveler is a resident of thecountry of destination.

(2) Applicants arriving at land borderports-of-entry. Any Visa Waiver Pilot

Program applicant arriving at a landborder port-of-entry must provideevidence to the immigration officer offinancial solvency and a domicileabroad to which the applicant intends toreturn. An applicant arriving at a land-border port-of-entry will be charged afee as prescribed in § 103.7(b)(1) of thischapter for issuance of Form I–94W,Nonimmigrant Visa Waiver Arrival/Departure Form. A round-triptransportation ticket is not required ofapplicants at land border ports-of-entry.

(d) Aliens in transit. An alien who isin transit through the United States iseligible to apply for admission underthe Visa Waiver Pilot Program, providedthe applicant meets all other programrequirements.


§ 217.3 Maintenance of status.(a) Satisfactory departure. If an

emergency prevents an alien admittedunder this part from departing from theUnited States within his or her periodof authorized stay, the district directorhaving jurisdiction over the place of thealien’s temporary stay may, in his or herdiscretion, grant a period of satisfactorydeparture not to exceed 30 days. Ifdeparture is accomplished during thatperiod, the alien is to be regarded ashaving satisfactorily accomplished thevisit without overstaying the allottedtime.

(b) Readmission after departure tocontiguous territory or adjacent island.An alien admitted to the United Statesunder this part may be readmitted to theUnited States after a departure to foreigncontiguous territory or adjacent islandfor the balance of his or her originalVisa Waiver Pilot Program admissionperiod if he or she is otherwiseadmissible and meets all the conditionsof this part with the exception of arrivalon a signatory carrier.

62. Section 217.4 is amended by:a. Revising the section heading:b. Removing paragraph (a);c. Redesignating paragraphs (b), (c),

and (d) as paragraphs (a), (b), and (c)respectively;

d. Revising newly redesignatedparagraph (a)(1);

e. Adding a new paragraph (a)(3);f. Revising newly redesignated

paragraph (b); and byg. Revising newly redesignated

paragraph (c) to read as follows:

§ 217.4 Inadmissibility and deportability.(a) Determinations of inadmissibility.

(1) An alien who applies for admissionunder the provisions of section 217 ofthe Act, who is determined by animmigration officer not to be eligible for


admission under that section or to beinadmissible to the United States underone or more of the grounds ofinadmissibility listed in section 212 ofthe Act (other than for lack of a visa),or who is in possession of and presentsfraudulent or counterfeit traveldocuments, will be refused admissioninto the United States and removed.Such refusal and removal shall be madeat the level of the port director orofficer-in-charge, or an officer acting inthat capacity, and shall be effectedwithout referral of the alien to animmigration judge for further inquiry,examination, or hearing, except that analien who presents himself or herself asan applicant for admission undersection 217 of the Act, who applies forasylum in the United States must beissued a Form I–863, Notice of Referralto Immigration Judge, for a proceedingin accordance with § 208.2(b)(1) and (2)of this chapter.* * * * *

(3) Refusal of admission underparagraph (a)(1) of this section shall notconstitute removal for purposes of theAct.

(b) Determination of deportability. (1)An alien who has been admitted to theUnited States under the provisions ofsection 217 of the Act and of this partwho is determined by an immigrationofficer to be deportable from the UnitedStates under one or more of the groundsof deportability listed in section 237 ofthe Act shall be removed from theUnited States to his or her country ofnationality or last residence. Suchremoval shall be determined by thedistrict director who has jurisdictionover the place where the alien is found,and shall be effected without referral ofthe alien to an immigration judge for adetermination of deportability, exceptthat an alien admitted as a Visa WaiverPilot Program visitor who applies forasylum in the United States must beissued a Form I–863 for a proceeding inaccordance with § 208.2(b)(1) and (2) ofthis chapter.

(2) Removal by the district directorunder paragraph (b)(1) of this section isequivalent in all respects and has thesame consequences as removal afterproceedings conducted under section240 of the Act.

(c)(1) Removal of inadmissible alienswho arrived by air or sea. Removal of analien from the United States under thissection may be effected using the returnportion of the round trip passagepresented by the alien at the time ofentry to the United States as required bysection 217(a)(7) of the Act. Suchremoval shall be on the first availablemeans of transportation to the alien’s

point of embarkation to the UnitedStates. Nothing in this part absolves thecarrier of the responsibility to removeany inadmissible or deportable alien atcarrier expense, as provided in thecarrier agreement.

(2) Removal of inadmissible anddeportable aliens who arrived at landborder ports-of-entry. Removal underthis section will be by the first availablemeans of transportation deemedappropriate by the district director.

§ 217.5 [Removed and reserved]

63. Section 217.5 is removed andreserved.


§ 217.6 Carrier agreements.

(a) General. The carrier agreementsreferred to in section 217(e) of the Actshall be made by the Commissioner onbehalf of the Attorney General and shallbe on Form I–775, Visa Waiver PilotProgram Agreement.

(b) Termination of agreements. TheCommissioner, on behalf of the AttorneyGeneral, may terminate any carrieragreement under this part, with 5 daysnotice to a carrier, for the carrier’sfailure to meet the terms of suchagreement. As a matter of discretion, theCommissioner may notify a carrier ofthe existence of a basis for terminationof a carrier agreement under this partand allow the carrier a period not toexceed 15 days within which the carriermay bring itself into compliance withthe terms of the carrier agreement. Theagreement shall be subject tocancellation by either party for anyreason upon 15 days’ written notice tothe other party.

PART 221—ADMISSION OF VISITORSOR STUDENTS


Authority: 8 U.S.C. 1101, 1103, 1201; 8CFR part 2.

§ 221.1 [Amended]

66. Section 221.1 is amended in thelast sentence by revising the term ‘‘part103’’ to read ‘‘§ 103.6’’.

PART 223—REENTRY PERMITS,REFUGEE TRAVEL DOCUMENTS, ANDADVANCE PAROLE DOCUMENTS


Authority: 8 U.S.C. 1103, 1181, 1182,1186a, 1203, 1225, 1226, 1227, 1251; ProtocolRelating to the Status of Refugees, November1, 1968, 19 U.S.T. 6223 (TIAS) 6577; 8 CFRpart 2.

68. In § 223.1, paragraph (b) is revisedto read as follows:

§ 223.1 Purpose of documents.

* * * * *(b) Refugee travel document. A

refugee travel document is issuedpursuant to this part and article 28 ofthe United Nations Convention of July29, 1951, for the purpose of travel.Except as provided in § 223.3(d)(2)(i), aperson who holds refugee statuspursuant to section 207 of the Act, orasylum status pursuant to section 208 ofthe Act, must have a refugee traveldocument to return to the United Statesafter temporary travel abroad unless heor she is in possession of a validadvance parole document.

69. In § 223.2, paragraph (b)(2) isrevised to read as follows:

§ 223.2 Processing.

* * * * *(b) * * *(2) Refugee travel document. (i)

General. Except as otherwise providedin this section, an application may beapproved if filed by a person who is inthe United States at the time ofapplication, and either holds validrefugee status under section 207 of theAct, valid asylum status under section208 of the Act, or is a permanentresident and received such status as adirect result of his or her asylum orrefugee status.

(ii) Discretionary authority toadjudicate an application from an aliennot within the United States. As a matterof discretion, a district director havingjurisdiction over a port-of-entry or apreinspection station where an alien isan applicant for admission, or anoverseas district director havingjurisdiction over the place where analien is physically present, may acceptand adjudicate an application for arefugee travel document from an alienwho previously had been admitted tothe United States as a refugee, or whopreviously had been granted asylumstatus in the United States, and who haddeparted from the United States withouthaving applied for such refugee traveldocument, provided:

(A) The alien submits a Form I–131,Application for Travel Document, withthe fee required under § 103.7(b)(1) ofthis chapter;

(B) The district director is satisfiedthat the alien did not intend to abandonhis or her refugee status at the time ofdeparture from the United States;

(C) The alien did not engage in anyactivities while outside the UnitedStates that would be inconsistent withcontinued refugee or asylee status; and


(D) The alien has been outside theUnited States for less than 1 year sincehis or her last departure.* * * * *

70. In § 223.3, paragraph (d)(2) isrevised to read as follows:

§ 223.3 Validity and effect on admissibility.

* * * * *(d) * * *(2) Refugee travel document. (i)

Inspection and immigration status.Upon arrival in the United States, analien who presents a valid unexpiredrefugee travel document, or who hasbeen allowed to file an application fora refugee travel document and thisapplication has been approved underthe procedure set forth in§ 223.2(b)(2)(ii), shall be examined as tohis or her admissibility under the Act.An alien shall be accorded theimmigration status endorsed in his orher refugee travel document, or (in thecase of an alien discussed in§ 223.2(b)(2)(ii)) which will be endorsedin such document, unless he or she isno longer eligible for that status, or heor she applies for and is found eligiblefor some other immigration status.

(ii) Inadmissibility. If an alien whopresents a valid unexpired refugeetravel document appears to theexamining immigration officer to beinadmissible, he or she shall be referredfor proceedings under section 240 of theAct. Section 235(c) of the Act shall notbe applicable.

PART 232—DETENTION OF ALIENSFOR PHYSICAL AND MENTALEXAMINATION

71. The heading for part 232 is revisedto read as set forth above.


Authority: 8 U.S.C. 1103, 1222, 1224, 1252;8 CFR part 2.

§ 232.1 [Redesignated and revised]

73. Section 232.1 is redesignated as§ 232.3, and is revised to read asfollows:

§ 232.3 Arriving aliens.

When a district director hasreasonable grounds for believing thatpersons arriving in the United Statesshould be detained for reasons specifiedin section 232 of the Act, he or sheshall, after consultation with the UnitedStates Public Health Service at the port-of-entry, notify the master or agent ofthe arriving vessel or aircraft of his orher intention to effect such detention byserving on the master or agent Form I–259 in accordance with § 235.3(a) of thischapter.

§§ 234.1 and 234.2 [Redesignated as§§ 232.1 and 232.2 respectively]

74. Sections 234.1 and 234.2 areredesignated as §§ 232.1 and 232.2respectively.

PART 234—[REMOVED]

75. Part 234 is removed.76. The following parts are

redesignated as set forth in the tablebelow:

Old part New part

Part 238 ..................................... Part 233.Part 239 ..................................... Part 234.

PART 233—CONTRACTS WITHTRANSPORTATION LINES

77. The authority citation for newlydesignated part 233 continues to read asfollows:


78. Newly redesignated § 233.1 isrevised to read as follows:

§ 233.1 Contracts.The contracts with transportation

lines referred to in section 233(c) of theAct may be entered into by theExecutive Associate Commissioner forPrograms, or by an immigration officerdesignated by the Executive AssociateCommissioner for Programs on behalf ofthe government and shall bedocumented on Form I–420. Thecontracts with transportation linesreferred to in section 233(a) of the Actshall be made by the Commissioner onbehalf of the government and shall bedocumented on Form I–426. Thecontracts with transportation linesdesiring their passengers to bepreinspected at places outside theUnited States shall be made by theCommissioner on behalf of thegovernment and shall be documentedon Form I–425; except that contracts forirregularly operated charter flights maybe entered into by the AssociateCommissioner for Examinations or animmigration officer designated by theExecutive Associate Commissioner forPrograms and having jurisdiction overthe location where the inspection willtake place.

79. In newly redesignated § 233.3,paragraph (b) is revised to read asfollows (the list of agreements isremoved):

§ 233.3 Aliens in immediate andcontinuous transit.* * * * *

(b) Signatory lines. A list of currentlyeffective Form I–426 agreements ismaintained by the Service’s

Headquarters Office of Inspections andis available upon written request.* * * * *


§ 233.4 Preinspection outside the UnitedStates.

(a) Form I–425 agreements. Atransportation line bringing applicantsfor admission to the United Statesthrough preinspection sites outside theUnited States shall enter into anagreement on Form I–425. Such anagreement shall be negotiated directlyby the Service’s Headquarters Office ofInspections and the head office of thetransportation line.

(b) Signatory lines. A list oftransportation lines with currently validtransportation agreements on Form I–425 is maintained by the Service’sHeadquarters Office of Inspections andis available upon written request.


§ 233.5 Aliens entering Guam pursuant tosection 14 of Public Law 99–396, ‘‘OmnibusTerritories Act.’

A transportation line bringing aliensto Guam under the visa waiverprovisions of § 212.1(e) of this chaptershall enter into an agreement on FormI–760. Such agreements shall benegotiated directly by the Service’sHeadquarters and head offices of thetransportation lines.

PART 234—DESIGNATION OF PORTSOF ENTRY FOR ALIENS ARRIVING BYCIVIL AIRCRAFT

82. The heading for newlyredesignated part 234 is revised as setforth above.

83. The authority citation for newlydesignated part 234 is revised to read asfollows:


§ 234.3 [Amended]84. Newly redesignated § 234.3 is

amended by removing the last sentence.

PART 235—INSPECTION OF PERSONSAPPLYING FOR ADMISSION


Authority: 8 U.S.C. 1101, 1103, 1182, 1183,1201, 1224, 1225, 1226, 1227, 1228, 1252; 8CFR part 2.


§ 235.1 Scope of examination.(a) General. Application to lawfully

enter the United States shall be made in


person to an immigration officer at aU.S. port-of-entry when the port is openfor inspection, or as otherwisedesignated in this section.

(b) U.S. citizens. A person claimingU.S. citizenship must establish that factto the examining officer’s satisfactionand must present a U.S. passport if suchpassport is required under theprovisions of 22 CFR part 53. If suchapplicant for admission fails to satisfythe examining immigration officer thathe or she is a U.S. citizen, he or sheshall thereafter be inspected as an alien.

(c) Alien members of United StatesArmed Forces and members of a forceof a NATO country. Any alien memberof the United States Armed Forces whois in the uniform of, or bears documentsidentifying him or her as a member of,such Armed Forces, and who is comingto or departing from the United Statesunder official orders or permit of suchArmed Forces is not subject to theremoval provisions of the Act. Amember of the force of a NATO countrysignatory to Article III of the Status ofForces Agreement seeking to enter theUnited States under official orders isexempt from the control provision of theAct. Any alien who is a member ofeither of the foregoing classes may,upon request, be inspected and his orher entry as an alien may be recorded.If the alien does not appear to theexamining immigration officer to beclearly and beyond a doubt entitled toenter the United States under theprovisions of the Act, the alien shall beso informed and his or her entry shallnot be recorded.

(d) Alien applicants for admission. (1)Each alien seeking admission at aUnited States port-of-entry shall presentwhatever documents are required andshall establish to the satisfaction of theimmigration officer that he or she is notsubject to removal under theimmigration laws, Executive Orders, orPresidential Proclamations and isentitled under all of the applicableprovisions of the immigration laws andthis chapter to enter the United States.A person claiming to have been lawfullyadmitted for permanent residence mustestablish that fact to the satisfaction ofthe inspecting immigration officer andmust present proper documents inaccordance with § 211.1 of this chapter.

(2) An alien present in the UnitedStates who has not been admitted orparoled or an alien who seeks entry atother than an open, designated port-of-entry, except as otherwise permitted inthis section, is subject to the provisionsof section 212(a) of the Act and toremoval under section 235(b) or 240 ofthe Act.

(3) An alien who is brought to theUnited States, whether or not to adesignated port-of-entry and regardlessof the means of transportation, afterhaving been interdicted in internationalor United States waters, is consideredan applicant for admission and shall beexamined under section 235(b) of theAct.

(4) An alien stowaway is not anapplicant for admission and may not beadmitted to the United States. Astowaway shall be removed from theUnited States under section 235(a)(2) ofthe Act. The provisions of section 240of the Act are not applicable tostowaways, nor is the stowaway entitledto further hearing or review of theremoval, except that an alien stowawaywho indicates an intention to apply forasylum shall be referred to an asylumofficer for a determination of crediblefear of persecution in accordance withsection 235(b)(1)(B) of the Act and§ 208.30 of this chapter. An alienstowaway who is determined to have acredible fear of persecution shall havehis or her asylum applicationadjudicated in accordance with§ 208.2(b)(2) of this chapter. Nothing inthis section shall be construed to requireexpedited removal proceedings inaccordance with section 235(b)(1) of theAct. A stowaway who absconds eitherprior to inspection by an immigrationofficer or after being ordered removed asa stowaway pursuant to section235(a)(2) of the Act is not entitled toremoval proceedings under section 240of the Act and shall be removed undersection 235(a)(2) of the Act as ifencountered upon arrival. A stowawaywho has been removed pursuant tosection 235(a)(2) of the Act and thissection shall be considered to have beenformally removed from the UnitedStates for all purposes under the Act.

(e) U.S. citizens, lawful permanentresidents of the United States, Canadiannationals, and other residents ofCanada having a common nationalitywith Canadians, entering the UnitedStates by small craft. Upon beinginspected by an immigration officer andfound eligible for admission as a citizenof the United States, or found eligiblefor admission as a lawful permanentresident of the United States, or in thecase of a Canadian national or otherresident of Canada having a commonnationality with Canadians being foundeligible for admission as a temporaryvisitor for pleasure, a person whodesires to enter the United States fromCanada in a small pleasure craft of lessthan 5 net tons without merchandisemay be issued, upon application andpayment of a fee prescribed under§ 103.7(b)(1) of this chapter, Form I–68,

Canadian Border Boat Landing Card,and may thereafter enter the UnitedStates along with the immediate shorearea of the United States on the body ofwater designated on the Form I–68 fromtime to time for the duration of thatnavigation season without furtherinspection. In the case of a Canadiannational or other resident of Canadahaving a common nationality withCanadians, the Form I–68 shall be validonly for the purpose of visits not toexceed 72 hours and only if the alienwill remain in nearby shopping areas,nearby residential neighborhoods, orother similar areas adjacent to theimmediate shore area of the UnitedStates. If the bearer of Form I–68 seeksto enter the United States by meansother than small craft of less than 5 nettons without merchandise, or if he orshe seeks to enter the United States forother purposes, or if he or she is analien, other than a lawful permanentresident alien of the United States, andintends to proceed beyond an areaadjacent to the immediate shore area ofthe United States, or remains in theUnited States longer than 72 hours, heor she must apply for admission at aUnited States port-of-entry.

(f) Form I–94, Arrival DepartureRecord. (1) Unless otherwise exempted,each arriving nonimmigrant who isadmitted to the United States shall beissued, upon payment of a feeprescribed in § 103.7(b)(1) of thischapter for land border admissions, aForm I–94 as evidence of the terms ofadmission. A Form I–94 issued at a landborder port-of-entry shall be consideredissued for multiple entries unlessspecifically annotated for a limitednumber of entries. A Form I–94 issuedat other than a land border port-of-entry,unless issued for multiple entries, mustbe surrendered upon departure from theUnited States in accordance with theinstructions on the form. Form I–94 isnot required by:

(i) Any nonimmigrant alien describedin § 212.1(a) of this chapter and 22 CFR41.33 who is admitted as a visitor forbusiness or pleasure or admitted toproceed in direct transit through theUnited States;

(ii) Any nonimmigrant alien residingin the British Virgin Islands who wasadmitted only to the U.S. Virgin Islandsas a visitor for business or pleasureunder § 212.1(b) of this chapter;

(iii) Any Mexican national inpossession of a valid nonresident alienMexican border crossing card, or a validMexican passport and a multiple-entrynonimmigrant visa issued under section101(a)(15)(B) of the Act, who isadmitted as a nonimmigrant visitor at aMexican border port of entry for a


period not to exceed 72 hours to visitwithin 25 miles of the border;

(iv) Bearers of Mexican diplomatic orofficial passports described in § 212.1(c–1) of this chapter.

(2) Paroled aliens. Any alien paroledinto the United States under section212(d)(5) of the Act, including any aliencrewmember, shall be issued acompletely executed Form I–94,endorsed with the parole stamp.


§ 235.2 Parole for deferred inspection.(a) A district director may, in his or

her discretion, defer the inspection ofany vessel or aircraft, or of any alien, toanother Service office or port-of-entry.Any alien coming to a United Statesport from a foreign port, from anoutlying possession of the United States,from Guam, Puerto Rico, or the VirginIslands of the United States, or fromanother port of the United States atwhich examination under this part wasdeferred, shall be regarded as anapplicant for admission at that onwardport.

(b) An examining immigration officermay defer further examination and referthe alien’s case to the district directorhaving jurisdiction over the place wherethe alien is seeking admission, or overthe place of the alien’s residence ordestination in the United States, if theexamining immigration officer hasreason to believe that the alien canovercome a finding of inadmissibilityby:

(1) Posting a bond under section 213of the Act;

(2) Seeking and obtaining a waiverunder section 211 or 212(d)(3) or (4) ofthe Act; or

(3) Presenting additional evidence ofadmissibility not available at the timeand place of the initial examination.

(c) Such deferral shall beaccomplished pursuant to theprovisions of section 212(d)(5) of theAct for the period of time necessary tocomplete the deferred inspection.

(d) Refusal of a district director toauthorize admission under section 213of the Act, or to grant an application forthe benefits of section 211 or section212(d) (3) or (4) of the Act, shall bewithout prejudice to the renewal of suchapplication or the authorizing of suchadmission by the immigration judgewithout additional fee.

(e) Whenever an alien on arrival isfound or believed to be suffering froma disability that renders it impractical toproceed with the examination under theAct, the examination of such alien,members of his or her family concerningwhose admissibility it is necessary to

have such alien testify, and anyaccompanying aliens whose protectionor guardianship will be required shouldsuch alien be found inadmissible shallbe deferred for such time and undersuch conditions as the district directorin whose district the port is locatedimposes.


§ 235.3 Inadmissible aliens and expeditedremoval.

(a) Detention prior to inspection. Allpersons arriving at a port-of-entry in theUnited States by vessel or aircraft shallbe detained aboard the vessel or at theairport of arrival by the owner, agent,master, commanding officer, person incharge, purser, or consignee of suchvessel or aircraft until admitted orotherwise permitted to land by anofficer of the Service. Notice or order todetain shall not be required. The owner,agent, master, commanding officer,person in charge, purser, or consignee ofsuch vessel or aircraft shall deliverevery alien requiring examination to animmigration officer for inspection or toa medical officer for examination. TheService will not be liable for anyexpenses related to such detention orpresentation or for any expenses of apassenger who has not been presentedfor inspection and for whom adetermination has not been madeconcerning admissibility by a Serviceofficer.

(b) Expedited removal. (1)Applicability. The expedited removalprovisions shall apply to the followingclasses of aliens who are determined tobe inadmissible under section212(a)(6)(C) or (7) of the Act:

(i) Arriving aliens, as defined in§ 1.1(q) of this chapter, except forcitizens of Cuba arriving at a UnitedStates port-of-entry by aircraft;

(ii) As specifically designated by theCommissioner, aliens who arrive in,attempt to enter, or have entered theUnited States without having beenadmitted or paroled followinginspection by an immigration officer ata designated port-of-entry, and whohave not established to the satisfactionof the immigration officer that they havebeen physically present in the UnitedStates continuously for the 2-yearperiod immediately prior to the date ofdetermination of inadmissibility. TheCommissioner shall have the solediscretion to apply the provisions ofsection 235(b)(1) of the Act, at any time,to any class of aliens described in thissection. The Commissioner’sdesignation shall become effective uponpublication of a notice in the FederalRegister. However, if the Commissioner

determines, in the exercise of discretion,that the delay caused by publicationwould adversely affect the interests ofthe United States or the effectiveenforcement of the immigration laws,the Commissioner’s designation shallbecome effective immediately uponissuance, and shall be published in theFederal Register as soon as practicablethereafter. When these provisions are ineffect for aliens who enter withoutinspection, the burden of proof restswith the alien to affirmatively show thathe or she has the required continuousphysical presence in the United States.Any absence from the United Statesshall serve to break the period ofcontinuous physical presence. An alienwho was not inspected and admitted orparoled into the United States but whoestablishes that he or she has beencontinuously physically present in theUnited States for the 2-year periodimmediately prior to the date ofdetermination of inadmissibility shallbe detained in accordance with section235(b)(2) of the Act for a proceedingunder section 240 of the Act.

(2) Determination of inadmissibility.(i) Record of proceeding. An alien whois arriving in the United States, or otheralien as designated pursuant toparagraph (b)(1)(ii) of this section, whois determined to be inadmissible undersection 212(a)(6)(C) or 212(a)(7) of theAct (except an alien for whomdocumentary requirements are waivedunder § 211.1(b)(3) or § 212.1 of thischapter), shall be ordered removed fromthe United States in accordance withsection 235(b)(1) of the Act. In everycase in which the expedited removalprovisions will be applied and beforeremoving an alien from the UnitedStates pursuant to this section, theexamining immigration officer shallcreate a record of the facts of the caseand statements made by the alien. Thisshall be accomplished by means of asworn statement using Form I–867AB,Record of Sworn Statement inProceedings under Section 235(b)(1) ofthe Act. The examining immigrationofficer shall read (or have read) to thealien all information contained on FormI–867A. Following questioning andrecording of the alien’s statementregarding identity, alienage, andinadmissibility, the examiningimmigration officer shall record thealien’s response to the questionscontained on Form I–867B, and have thealien read (or have read to him or her)the statement, and the alien shall signand initial each page of the statementand each correction. The examiningimmigration officer shall advise thealien of the charges against him or her


on Form I–860, Notice and Order ofExpedited Removal, and the alien shallbe given an opportunity to respond tothose charges in the sworn statement.After obtaining supervisory concurrencein accordance with paragraph (b)(7) ofthis section, the examining immigrationofficial shall serve the alien with FormI–860 and the alien shall sign thereverse of the form acknowledgingreceipt. Interpretative assistance shall beused if necessary to communicate withthe alien.

(ii) No entitlement to hearings andappeals. Except as otherwise providedin this section, such alien is not entitledto a hearing before an immigration judgein proceedings conducted pursuant tosection 240 of the Act, or to an appealof the expedited removal order to theBoard of Immigration Appeals.

(iii) Detention and parole of alien inexpedited removal. An alien whoseinadmissibility is being consideredunder this section or who has beenordered removed pursuant to thissection shall be detained pendingdetermination and removal, except thatparole of such alien, in accordance withsection 212(d)(5) of the Act, may bepermitted only when the AttorneyGeneral determines, in the exercise ofdiscretion, that parole is required tomeet a medical emergency or isnecessary for a legitimate lawenforcement objective.

(3) Additional charges ofinadmissibility. In the expeditedremoval process, the Service may notcharge an alien with any additionalgrounds of inadmissibility other thansection 212(a)(6)(C) or 212(a)(7) of theAct. If an alien appears to beinadmissible under other groundscontained in section 212(a) of the Act,and if the Service wishes to pursue suchadditional grounds of inadmissibility,the alien shall be detained and referredfor a removal hearing before animmigration judge pursuant to sections235(b)(2) and 240 of the Act for inquiryinto all charges. Once the alien is inremoval proceedings under section 240of the Act, the Service is not precludedfrom lodging additional charges againstthe alien. Nothing in this paragraphshall preclude the Service frompursuing such additional grounds ofinadmissibility against the alien in anysubsequent attempt to reenter theUnited States, provided the additionalgrounds of inadmissibility still exist.

(4) Claim of asylum or fear ofpersecution. If an alien subject to theexpedited removal provisions indicatesan intention to apply for asylum, a fearof persecution, or a fear of return to hisor her country, the inspecting officershall not proceed further with removal

of the alien until the alien has beenreferred for an interview by an asylumofficer in accordance with § 208.30 ofthis chapter to determine if the alien hasa credible fear of persecution. Theexamining immigration officer shallrecord sufficient information in thesworn statement to establish and recordthat the alien has indicated suchintention, fear, or concern, and toestablish the alien’s inadmissibility.

(i) Referral. The referring officer shallprovide the alien with a writtendisclosure on Form M–444, InformationAbout Credible Fear Interview,describing:

(A) The purpose of the referral anddescription of the credible fearinterview process;

(B) The right to consult with otherpersons prior to the interview and anyreview thereof at no expense to theUnited States Government;

(C) The right to request a review byan immigration judge of the asylumofficer’s credible fear determination;and

(D) The consequences of failure toestablish a credible fear of persecution.

(ii) Detention pending credible fearinterview. Pending the credible feardetermination by an asylum officer andany review of that determination by animmigration judge, the alien shall bedetained. Parole of such alien inaccordance with section 212(d)(5) of theAct may be permitted only when theAttorney General determines, in theexercise of discretion, that parole isrequired to meet a medical emergencyor is necessary for a legitimate lawenforcement objective. Prior to theinterview, the alien shall be given timeto contact and consult with any personor persons of his or her choosing. Suchconsultation shall be made available inaccordance with the policies andprocedures of the detention facilitywhere the alien is detained, shall be atno expense to the government, and shallnot unreasonably delay the process.

(5) Claim to lawful permanentresident, refugee, or asylee status or U.S.citizenship.—(i) Verification of status. Ifan applicant for admission who issubject to expedited removal pursuantto section 235(b)(1) of the Act claims tohave been lawfully admitted forpermanent residence, admitted as arefugee under section 207 of the Act,granted asylum under section 208 of theAct, or claims to be a U.S. citizen, theimmigration officer shall attempt toverify the alien’s claim. Suchverification shall include a check of allavailable Service data systems and anyother means available to the officer. Analien whose claim to lawful permanentresident, refugee, asylee status, or U.S.

citizen status cannot be verified will beadvised of the penalties for perjury, andwill be placed under oath or allowed tomake a declaration as permitted under28 U.S.C. 1746, concerning his or herlawful admission for permanentresidence, admission as a refugee undersection 207 of the Act, grant of asylumstatus under section 208 of the Act, orclaim to U.S. citizenship. A writtenstatement shall be taken from the alienin the alien’s own language andhandwriting, stating that he or shedeclares, certifies, verifies, or states thatthe claim is true and correct. Theimmigration officer shall issue anexpedited order of removal undersection 235(b)(1)(A)(i) of the Act andrefer the alien to the immigration judgefor review of the order in accordancewith paragraph (b)(5)(iv) of this sectionand § 235.6(a)(2)(ii). The person shall bedetained pending review of theexpedited removal order under thissection. Parole of such person, inaccordance with section 212(d)(5) of theAct, may be permitted only when theAttorney General determines, in theexercise of discretion, that parole isrequired to meet a medical emergencyor is necessary for a legitimate lawenforcement objective.

(ii) Verified lawful permanentresidents. If the claim to lawfulpermanent resident status is verified,and such status has not been terminatedin exclusion, deportation, or removalproceedings, the examining immigrationofficer shall not order the alien removedpursuant to section 235(b)(1) of the Act.The examining immigration officer willdetermine in accordance with section101(a)(13)(C) of the Act whether thealien is considered to be making anapplication for admission. If the alien isdetermined to be seeking admission andthe alien is otherwise admissible, exceptthat he or she is not in possession of therequired documentation, a discretionarywaiver of documentary requirementsmay be considered in accordance withsection 211(b) of the Act and§ 211.1(b)(3) of this chapter or thealien’s inspection may be deferred to anonward office for presentation of therequired documents. If the alien appearsto be inadmissible, the immigrationofficer may initiate removal proceedingsagainst the alien under section 240 ofthe Act.

(iii) Verified refugees and asylees. If acheck of Service records or other meansindicates that the alien has been grantedrefugee status or asylee status, and suchstatus has not been terminated indeportation, exclusion, or removalproceedings, the immigration officershall not order the alien removedpursuant to section 235(b)(1) of the Act.


If the alien is not in possession of avalid, unexpired refugee traveldocument, the examining immigrationofficer may accept an application for arefugee travel document in accordancewith § 223.2(b)(2)(ii) of this chapter. Ifaccepted, the immigration officer shallreadmit the refugee or asylee inaccordance with § 223.3(d)(2)(i) of thischapter. If the alien is determined not tobe eligible to file an application for arefugee travel document theimmigration officer may initiate removalproceedings against the alien undersection 240 of the Act.

(iv) Review of order for claimed lawfulpermanent residents, refugees, asylees,or U.S. citizens. A person whose claimto U.S. citizenship has been verifiedmay not be ordered removed. When analien whose status has not been verifiedbut who is claiming under oath or underpenalty of perjury to be a lawfulpermanent resident, refugee, asylee, orU.S. citizen is ordered removedpursuant to section 235(b)(1) of the Act,the case will be referred to animmigration judge for review of theexpedited removal order under section235(b)(1)(C) of the Act and§ 235.6(a)(2)(ii). If the immigration judgedetermines that the alien has never beenadmitted as a lawful permanent residentor as a refugee, granted asylum status,or is not a U.S. citizen, the order issuedby the immigration officer will beaffirmed and the Service will removethe alien. There is no appeal from thedecision of the immigration judge. If theimmigration judge determines that thealien was once so admitted as a lawfulpermanent resident or as a refugee, orwas granted asylum status, or is a U.S.citizen, and such status has not beenterminated by final administrativeaction, the immigration judge willterminate proceedings and vacate theexpedited removal order. The Servicemay initiate removal proceedingsagainst such an alien, but not against aperson determined to be a U.S. citizen,in proceedings under section 240 of theAct. During removal proceedings, theimmigration judge may consider anywaivers, exceptions, or requests forrelief for which the alien is eligible.

(6) Opportunity for alien to establishthat he or she was admitted or paroledinto the United States. If theCommissioner determines that theexpedited removal provisions of section235(b)(1) of the Act shall apply to anyor all aliens described in paragraph(b)(2)(ii) of this section, such alien willbe given a reasonable opportunity toestablish to the satisfaction of theexamining immigration officer that he orshe was admitted or paroled into theUnited States following inspection at a

port-of-entry. The alien will be allowedto present evidence or provide sufficientinformation to support the claim. Suchevidence may consist of documentationin the possession of the alien, theService, or a third party. The examiningimmigration officer will consider allsuch evidence and information, makefurther inquiry if necessary, and willattempt to verify the alien’s statusthrough a check of all available Servicedata systems. The burden rests with thealien to satisfy the examiningimmigration officer of the claim oflawful admission or parole. If the alienestablishes that he or she was lawfullyadmitted or paroled, the case will beexamined to determine if grounds ofdeportability under section 237(a) of theAct are applicable, or if paroled,whether such parole has been, or shouldbe, terminated, and whether the alien isinadmissible under section 212(a) of theAct. An alien who cannot satisfy theexamining officer that he or she waslawfully admitted or paroled will beordered removed pursuant to section235(b)(1) of the Act.

(7) Review of expedited removalorders. Any removal order entered by anexamining immigration officer pursuantto section 235(b)(1) of the Act must bereviewed and approved by theappropriate supervisor before the orderis considered final. Such supervisoryreview shall not be delegated below thelevel of the second line supervisor, or aperson acting in that capacity. Thesupervisory review shall include areview of the sworn statement and anyanswers and statements made by thealien regarding a fear of removal orreturn. The supervisory review andapproval of an expedited removal orderfor an alien described in section235(b)(1)(A)(iii) of the Act must includea review of any claim of lawfuladmission or parole and any evidence orinformation presented to support such aclaim, prior to approval of the order. Insuch cases, the supervisor may requestadditional information from any sourceand may require further interview of thealien.

(8) Removal procedures relating toexpedited removal. An alien orderedremoved pursuant to section 235(b)(1) ofthe Act shall be removed from theUnited States in accordance withsection 241(c) of the Act and 8 CFR part241.

(9) Waivers of documentaryrequirements. Nothing in this sectionlimits the discretionary authority of theAttorney General, including authorityunder sections 211(b) or 212(d) of theAct, to waive the documentaryrequirements for arriving aliens.

(10) Applicant for admission undersection 217 of the Act. The provisionsof § 235.3(b) do not apply to anapplicant for admission under section217 of the Act.

(c) Arriving aliens placed inproceedings under section 240 of theAct. Except as otherwise provided inthis chapter, any arriving alien whoappears to the inspecting officer to beinadmissible, and who is placed inremoval proceedings pursuant to section240 of the Act shall be detained inaccordance with section 235(b) of theAct. Parole of such alien shall only beconsidered in accordance with§ 212.5(a) of this chapter. Thisparagraph shall also apply to any alienwho arrived before April 1, 1997, andwho was placed in exclusionproceedings.

(d) Service custody. The Service willassume custody of any alien subject todetention under paragraph (b) or (c) ofthis section. In its discretion, theService may require any alien whoappears inadmissible and who arrives ata land border port-of-entry from Canadaor Mexico, to remain in that countrywhile awaiting a removal hearing. Suchalien shall be considered detained for aproceeding within the meaning ofsection 235(b) of the Act and may beordered removed in absentia by animmigration judge if the alien fails toappear for the hearing.

(e) Detention in non-Service facility.Whenever an alien is taken into Servicecustody and detained at a facility otherthan at a Service Processing Center, thepublic or private entities contracted toperform such service shall have beenapproved for such use by the Service’sJail Inspection Program or shall beperforming such service under contractin compliance with the StandardStatement of Work for ContractDetention Facilities. Both programs areadministered by the Detention andDeportation section having jurisdictionover the alien’s place of detention.Under no circumstances shall an alienbe detained in facilities not meeting thefour mandatory criteria for usage. Theseare:

(1) 24-Hour supervision,(2) Conformance with safety and

emergency codes,(3) Food service, and(4) Availability of emergency medical

care.(f) Privilege of communication. The

mandatory notification requirements ofconsular and diplomatic officerspursuant to § 236.1(e) of this chapterapply when an inadmissible alien isdetained for removal proceedings,including for purpose of conducting thecredible fear determination.



§ 235.4 Withdrawal of application foradmission.

(a) The Attorney General may, in hisor her discretion, permit any alienapplicant for admission to withdraw hisor her application for admission in lieuof removal proceedings under section240 of the Act or expedited removalunder section 235(b)(1) of the Act. Thealien’s decision to withdraw his or herapplication for admission must be madevoluntarily, but nothing in this sectionshall be construed as to give an alien theright to withdraw his or her applicationfor admission. Permission to withdrawan application for admission should notnormally be granted unless the alienintends and is able to depart the UnitedStates immediately. An alien permittedto withdraw his or her application foradmission shall normally remain incarrier or Service custody pendingdeparture, unless the district directordetermines that parole of the alien iswarranted in accordance with § 212.5(a)of this chapter.

(b) An immigration judge may allowonly an arriving alien to withdraw anapplication for admission. Once theissue of inadmissibility has beenresolved, permission to withdraw anapplication for admission shouldordinarily be granted only with theconcurrence of the Service. Animmigration judge shall not allow analien to withdraw an application foradmission unless the alien, in additionto demonstrating that he or shepossesses both the intent and the meansto depart immediately from the UnitedStates, establishes that factors directlyrelating to the issue of inadmissibilityindicate that the granting of thewithdrawal would be in the interest ofjustice. During the pendency of anappeal from the order of removal,permission to withdraw an applicationfor admission must be obtained from theimmigration judge or the Board.


§ 235.5 Preinspection.(a) In United States territories and

possessions. In the case of any aircraftproceeding from Guam, Puerto Rico, orthe United States Virgin Islandsdestined directly and without touchingat a foreign port or place, to any otherof such places, or to one of the Statesof the United States or the District ofColumbia, the examination of thepassengers and crew required by the Actmay be made prior to the departure ofthe aircraft, and in such event, finaldetermination of admissibility shall be

made immediately prior to suchdeparture. The examination shall beconducted in accordance with sections232, 235, and 240 of the Act and 8 CFRparts 235 and 240. If it appears to theexamining immigration officer that anyperson in the United States beingexamined under this section is primafacie removable from the United States,further action with respect to his or herexamination shall be deferred andfurther proceedings regardingremovability conducted as provided insection 240 of the Act and 8 CFR part240. When the foregoing inspectionprocedure is applied to any aircraft,persons examined and found admissibleshall be placed aboard the aircraft, orkept at the airport separate and apartfrom the general public until they arepermitted to board the aircraft. No otherperson shall be permitted to depart onsuch aircraft until and unless he or sheis found to be admissible as provided inthis section.

(b) In foreign territory. In the case ofany aircraft, vessel, or train proceedingdirectly, without stopping, from a portor place in foreign territory to a port-of-entry in the United States, theexamination and inspection ofpassengers and crew required by the Actand final determination of admissibilitymay be made immediately prior to suchdeparture at the port or place in theforeign territory and shall have the sameeffect under the Act as though made atthe destined port-of-entry in the UnitedStates.


§ 235.6 Referral to immigration judge.

(a) Notice. (1) Referral by Form I–862,Notice to Appear. An immigrationofficer or asylum officer will sign anddeliver a Form I–862 to an alien in thefollowing cases:

(i) If, in accordance with theprovisions of section 235(b)(2)(A) of theAct, the examining immigration officerdetains an alien for a proceeding beforean immigration judge under section 240of the Act; or

(ii) If, in accordance with section235(b)(1)(B)(ii) of the Act, an asylumofficer determines that an alien inexpedited removal proceedings has acredible fear of persecution and refersthe case to the immigration judge forconsideration of the application forasylum.

(iii) If, in accordance with section235(b)(1)(B)(iii)(III) of the Act, theimmigration judge determines that analien in expedited removal proceedingshas a credible fear of persecution andvacates the expedited removal order

issued by the asylum officer pursuant tosection 235(b)(1)(B)(iii) of the Act.

(iv) If an immigration officer verifiesthat an alien subject to expeditedremoval under section 235(b)(1) of theAct has been admitted as a lawfulpermanent resident refugee, or asylee, orupon review pursuant to§ 235.3(b)(5)(iv) an immigration judgedetermines that the alien was once soadmitted, provided that such status hasnot been terminated by finaladministrative action, and the Serviceinitiates removal proceedings againstthe alien under section 240 of the Act.

(2) Referral by Form I–863, Notice ofReferral to Immigration Judge. Animmigration officer will sign and delivera Form I–863 to an alien in thefollowing cases:

(i) If, in accordance with section235(b)(1)(B)(iii)(III) of the Act, anasylum officer determines that an aliendoes not have a credible fear ofpersecution, and the alien requests areview of that determination by animmigration judge; or

(ii) If, in accordance with section235(b)(1)(C) of the Act, an immigrationofficer refers an expedited removalorder entered on an alien claiming to bea lawful permanent resident, refugee,asylee, or U.S. citizen for whom theofficer could not verify such status to animmigration judge for review of theorder.

(iii) If an immigration officer refers anapplicant described in § 208.2(b)(1) ofthis chapter to an immigration judge foran asylum hearing under § 208.2(b)(2) ofthis chapter.

(b) Certification for mental condition;medical appeal. An alien certifiedunder sections 212(a)(1) and 232(b) ofthe Act shall be advised by theexamining immigration officer that he orshe may appeal to a board of medicalexaminers of the United States PublicHealth Service pursuant to section 232of the Act. If such appeal is taken, thedistrict director shall arrange for theconvening of the medical board.

§ 235.7 [Removed]

92. Section 235.7 is removed.

§ 235.13 [Redesignated as § 235.7]93. Section 235.13 is redesignated as

§ 235.7.94. Section 235.8 is revised to read as

follows:

§ 235.8 Inadmissibility on security andrelated grounds.

(a) Report. When an immigrationofficer or an immigration judge suspectsthat an arriving alien appears to beinadmissible under section 212(a)(3)(A)(other than clause (ii)), (B), or (C) of the


Act, the immigration officer orimmigration judge shall order the alienremoved and report the action promptlyto the district director who hasadministrative jurisdiction over theplace where the alien has arrived orwhere the hearing is being held. Theimmigration officer shall, if possible,take a brief sworn question-and-answerstatement from the alien, and the alienshall be notified by personal service ofForm I–147, Notice of TemporaryInadmissibility, of the action taken andthe right to submit a written statementand additional information forconsideration by the Attorney General.The district director shall forward thereport to the regional director for furtheraction as provided in paragraph (b) ofthis section.

(b) Action by regional director. (1) Inaccordance with section 235(c)(2)(B) ofthe Act, the regional director may denyany further inquiry or hearing by animmigration judge and order the alienremoved by personal service of Form I–148, Notice of PermanentInadmissibility, or issue any other orderdisposing of the case that the regionaldirector considers appropriate.

(2) If the regional director concludesthat the case does not meet the criteriacontained in section 235(c)(2)(B) of theAct, the regional director may directthat:

(i) An immigration officer shallconduct a further examination of thealien, concerning the alien’sadmissibility; or,

(ii) The alien’s case be referred to animmigration judge for a hearing, or forthe continuation of any prior hearing.

(3) The regional director’s decisionshall be in writing and shall be signedby the regional director. Unless thewritten decision contains confidentialinformation, the disclosure of whichwould be prejudicial to the publicinterest, safety, or security of the UnitedStates, the written decision shall beserved on the alien. If the writtendecision contains such confidentialinformation, the alien shall be servedwith a separate written order showingthe disposition of the case, but with theconfidential information deleted.

(c) Finality of decision. The regionaldirector’s decision under this section isfinal when it is served upon the alien inaccordance with paragraph (b)(3) of thissection. There is no administrativeappeal from the regional director’sdecision.

(d) Hearing by immigration judge. Ifthe regional director directs that analien subject to removal under thissection be given a hearing or furtherhearing before an immigration judge, thehearing and all further proceedings in

the matter shall be conducted inaccordance with the provisions ofsection 240 of the Act and otherapplicable sections of the Act to thesame extent as though the alien hadbeen referred to an immigration judgeby the examining immigration officer. Ina case where the immigration judgeordered the alien removed pursuant toparagraph (a) of this section, the Serviceshall refer the case back to theimmigration judge and proceedingsshall be automatically reopened uponreceipt of the notice of referral. Ifconfidential information, not previouslyconsidered in the matter, is presentedsupporting the inadmissibility of thealien under section 212(a)(3)(A) (otherthan clause (ii)), (B) or (C) of the Act, thedisclosure of which, in the discretion ofthe immigration judge, may beprejudicial to the public interest, safety,or security, the immigration judge mayagain order the alien removed under theauthority of section 235(c) of the Actand further action shall be taken asprovided in this section.

(e) Nonapplicability. The provisionsof this section shall apply only toarriving aliens, as defined in § 1.1(q) ofthis chapter. Aliens present in theUnited States who have not beenadmitted or paroled may be subject toproceedings under Title V of the Act.

§ 235.9 [Removed]95. Section 235.9 is removed.

§ 235.12 [Redesignated as § 235.9 andrevised]

96. Section 235.12 is redesignated as§ 235.9 and is revised to read as follows:

§ 235.9 Northern Marianas identificationcard.

During the two-year period that endedJuly 1, 1990, the Service issuedNorthern Marianas Identification Cardsto aliens who acquired United Statescitizenship when the Covenant toEstablish a Commonwealth of theNorthern Mariana Islands in PoliticalUnion with the United States enteredinto force on November 3, 1986. Thesecards remain valid as evidence ofUnited States citizenship. Although theService no longer issues these cards, aUnited States citizen to whom a cardwas issued may file Form I–777,Application for Issuance orReplacement of Northern MarianasCard, to obtain replacement of a lost,stolen, or mutilated Northern MarianasIdentification Card.

97. Section 235.10 is revised to readas follows:

§ 235.10 U.S. Citizen Identification Card.(a) General. Form I–197, U.S. Citizen

Identification Card, is no longer issued

by the Service but valid existing cardswill continue to be acceptabledocumentation of U.S. citizenship.Possession of the identification card isnot mandatory for any purpose. A U.S.Citizen Identification Card remains theproperty of the United States. Becausethe identification card is no longerissued, there are no provisions forreplacement cards.

(b) Surrender and voidance. (1)Institution of proceeding under section240 or 342 of the Act. A U.S. CitizenIdentification Card must be surrenderedprovisionally to a Service office uponnotification by the district director thata proceeding under section 240 or 342of the Act is being instituted against theperson to whom the card was issued.The card shall be returned to the personif the final order in the proceeding doesnot result in voiding the card under thisparagraph. A U.S. Citizen IdentificationCard is automatically void if the personto whom it was issued is determined tobe an alien in a proceeding conductedunder section 240 of the Act, or if acertificate, document, or record relatingto that person is canceled under section342 of the Act.

(2) Investigation of validity ofidentification card. A U.S. CitizenIdentification Card must be surrenderedprovisionally upon notification by adistrict director that the validity of thecard is being investigated. The cardshall be returned to the person whosurrendered it if the investigation doesnot result in a determination adverse tohis or her claim to be a United Statescitizen. When an investigation results ina tentative determination adverse to theapplicant’s claim to be a United Statescitizen, the applicant shall be notifiedby certified mail directed to his or herlast known address. The notificationshall inform the applicant of the basisfor the determination and of theintention of the district director todeclare the card void unless within 30days the applicant objects and demandsan opportunity to see and rebut theadverse evidence. Any rebuttal,explanation, or evidence presented bythe applicant must be included in therecord of proceeding. The determinationwhether the applicant is a United Statescitizen must be based on the entirerecord and the applicant shall benotified of the determination. If it isdetermined that the applicant is not aUnited States citizen, the applicant shallbe notified of the reasons, and the carddeemed void. There is no appeal fromthe district director’s decision.

(3) Admission of alienage. A U.S.Citizen Identification Card is void if theperson to whom it was issued admits ina statement signed before an


immigration officer that he or she is analien and consents to the voidance ofthe card. Upon signing the statement thecard must be surrendered to theimmigration officer.

(4) Surrender of void card. A voidU.S. Citizen Identification Card whichhas not been returned to the Servicemust be surrendered without delay to animmigration officer or to the issuingoffice of the Service.

(c) U.S. Citizen Identification Cardpreviously issued on Form I–179. Avalid Form I–179, U.S. CitizenIdentification Card, continues to bevalid subject to the provisions of thissection.


§ 235.11 Admission of conditionalpermanent residents.

(a) General. (1) Conditional residencebased on family relationship. An alienseeking admission to the United Stateswith an immigrant visa as the spouse orson or daughter of a United Statescitizen or lawful permanent residentshall be examined to determine whetherthe conditions of section 216 of the Actapply. If so, the alien shall be admittedconditionally for a period of 2 years. Atthe time of admission, the alien shall benotified that the alien and his or herpetitioning spouse must file a Form I–751, Petition to Remove the Conditionson Residence, within the 90-day periodimmediately preceding the secondanniversary of the alien’s admission forpermanent residence.

(2) Conditional residence based onentrepreneurship. An alien seekingadmission to the United States with animmigrant visa as an alien entrepreneur(as defined in section 216A(f)(1) of theAct) or the spouse or unmarried minorchild of an alien entrepreneur shall beadmitted conditionally for a period of 2years. At the time of admission, thealien shall be notified that the principalalien (entrepreneur) must file a Form I–829, Petition by Entrepreneur to RemoveConditions, within the 90-day periodimmediately preceding the secondanniversary of the alien’s admission forpermanent residence.

(b) Correction of endorsement onimmigrant visa. If the alien is subject tothe provisions of section 216 of the Act,but the classification endorsed on theimmigrant visa does not so indicate, theendorsement shall be corrected and thealien shall be admitted as a lawfulpermanent resident on a conditionalbasis, if otherwise admissible.Conversely, if the alien is not subject tothe provisions of section 216 of the Act,but the visa classification endorsed onthe immigrant visa indicates that the

alien is subject thereto (e.g., if thesecond anniversary of the marriageupon which the immigrant visa is basedoccurred after the issuance of the visaand prior to the alien’s application foradmission) the endorsement on the visashall be corrected and the alien shall beadmitted as a lawful permanent residentwithout conditions, if otherwiseadmissible.

(c) Expired conditional permanentresident status. The lawful permanentresident alien status of a conditionalresident automatically terminates if theconditional basis of such status is notremoved by the Service throughapproval of a Form I–751, Petition toRemove the Conditions on Residence or,in the case of an alien entrepreneur (asdefined in section 216A(f)(1) of the Act),Form I–829, Petition by Entrepreneur toRemove Conditions. Therefore, an alienwho is seeking admission as a returningresident subsequent to the secondanniversary of the date on whichconditional residence was obtained(except as provided in § 211.1(b)(1) ofthis chapter) and whose conditionalbasis of such residence has not beenremoved pursuant to section 216(c) or216A(c) of the Act, whichever isapplicable, shall be placed underremoval proceedings. However, in acase where conditional residence wasbased on a marriage, removalproceedings may be terminated and thealien may be admitted as a returningresident if the required Form I–751 isfiled jointly, or by the alien alone (ifappropriate), and approved by theService. In the case of an alienentrepreneur, removal proceedings maybe terminated and the alien admitted asa returning resident if the required FormI–829 is filed by the alien entrepreneurand approved by the Service.


PART 236—APPREHENSION ANDDETENTION OF INADMISSIBLE ANDDEPORTABLE ALIENS; REMOVAL OFALIENS ORDERED REMOVED

Subpart A—Detention of Aliens Prior toOrder of RemovalSec.236.1 Apprehension, custody, and

detention.236.2 Confined aliens, incompetents, and

minors.236.3 Detention and release of juveniles.236.4 Removal of S–5, S–6, and S–7

nonimmigrants.236.5 Fingerprints and photographs.236.6–236.9 Reserved.

Subpart B—Family Unity Program236.10 Description of program.236.11 Definitions.236.12 Eligibility.

236.13 Ineligible aliens.236.14 Filing.236.15 Voluntary departure and eligibility

for employment.236.16 Travel outside the United States.236.17 Eligibility for Federal financial

assistance programs.236.18 Termination of Family Unity

Program benefits.Authority: 8 U.S.C. 1103, 1182, 1224, 1225,

1226, 1227, 1362; 8 CFR part 2.

Subpart A—Detention of Aliens Prior toOrder of Removal

§ 236.1 Apprehension, custody, anddetention.

(a) Detainers. The issuance of adetainer under this section shall begoverned by the provisions of § 287.7 ofthis chapter.

(b) Warrant of arrest. (1) In general. Atthe time of issuance of the notice toappear, or at any time thereafter and upto the time removal proceedings arecompleted, the respondent may bearrested and taken into custody underthe authority of Form I–200, Warrant ofArrest. A warrant of arrest may beissued only by those immigrationofficers listed in § 287.5(e)(2) of thischapter and may be served only bythose immigration officers listed in§ 287.5(e)(3) of this chapter.

(2) If, after the issuance of a warrantof arrest, a determination is made not toserve it, any officer authorized to issuesuch warrant may authorize itscancellation.

(c) Custody issues and releaseprocedures. (1) After the expiration ofthe Transition Period Custody Rulesunder Public Law 104–208, no aliendescribed in section 236(c)(1) of the Actshall be released from custody duringremoval proceedings except pursuant tosection 236(c)(2) of the Act.

(2) Any officer authorized to issue awarrant of arrest may, in the officer’sdiscretion, release an alien notdescribed in section 236(c)(1) of the Act,under the conditions at section 236(a)(2)and (3) of the Act; provided that thealien must demonstrate to thesatisfaction of the officer that suchrelease would not pose a danger toproperty or persons, and that the alienis likely to appear for any futureproceeding.

(3) When an alien who, having beenarrested and taken into custody, hasbeen released, such release may berevoked at any time in the discretion ofthe district director, acting districtdirector, deputy district director,assistant district director forinvestigations, assistant district directorfor detention and deportation, or officerin charge (except foreign), in whichevent the alien may be taken intophysical custody and detained. If


1 Arrangements with these countries provide thatU.S. authorities shall notify responsiblerepresentatives within 72 hours of the arrest ordetention of one of their nationals.

2 When Taiwan nationals (who carry ‘‘Republicof China’’ passports) are detained, notificationshould be made to the nearest office of the TaiwanEconomic and Cultural Representative’s Office, theunofficial entity representing Taiwan’s interests inthe United States.

3 British dependencies are also covered by thisagreement. They are: Anguilla, British VirginIslands, Hong Kong, Bermuda, Montserrat, and theTurks and Caicos Islands. Their residents carryBritish passports.

4 All U.S.S.R. successor states are covered by thisagreement. They are: Armenia, Azerbaijan, Belarus,Georgia, Kazakhstan, Kyrgyzstan, Moldova, RussianFederation, Tajikistan, Turkmenistan, Ukraine, andUzbekistan.

detained, unless a breach has occurred,any outstanding bond shall be revokedand canceled.

(4) The provisions of § 103.6 of thischapter shall apply to any bondsauthorized. Subject to the provisions ofthis section, the provisions of § 3.19 ofthis chapter shall govern availability tothe respondent of recourse to otheradministrative authority for release fromcustody.

(5) An immigration judge may notexercise authority provided in thissection and the review processdescribed in paragraph (d) of thissection shall not apply with respect to:

(i) Arriving aliens, as described in§ 1.1(q) of this chapter, including aliensparoled pursuant to section 212(d)(5) ofthe Act, in removal proceedings,

(ii) Aliens described in section237(a)(4) of the Act, or

(iii) After the expiration of section303(b)(3) of Public Law 104–208, aliensdescribed in section 236(c)(1) of the Act.

(d) Appeals from custody decisions.(1) Application to immigration judge.After an initial custody determinationby the district director, including thesetting of a bond, the respondent may,at any time before an order under 8 CFRpart 240 becomes final, requestamelioration of the conditions underwhich he or she may be released. Priorto such final order, and except asotherwise provided in this chapter, theimmigration judge is authorized toexercise the authority in section 236 ofthe Act to detain the alien in custody,release the alien, and determine theamount of bond, if any, under which therespondent may be released, asprovided in § 3.19 of this chapter. If thealien has been released from custody, anapplication for amelioration of the termsof release must be filed within 7 days ofrelease. Once a removal order becomesadministratively final, determinationsregarding custody and bond are made bythe district director.

(2) Application to the district director.(i) After expiration of the 7-day periodin paragraph (d)(1) of this section, therespondent may request review by thedistrict director of the conditions of hisor her release.

(ii) After an order becomesadministratively final, the respondentmay request review by the districtdirector of the conditions of his or herrelease.

(3) Appeal to the Board ofImmigration Appeals. An appealrelating to bond and custodydeterminations may be filed to theBoard of Immigration Appeals in thefollowing circumstances:

(i) In accordance with § 3.38 of thischapter, the alien or the Service may

appeal the decision of an immigrationjudge pursuant to paragraph (d)(1) ofthis section.

(ii) The alien, within 10 days, mayappeal from the district director’sdecision under paragraph (d)(2)(i) ofthis section.

(iii) The alien, within 10 days, mayappeal from the district director’sdecision under paragraph (d)(2)(ii) ofthis section, except that no appeal shallbe allowed when the Service notifies thealien that it is ready to execute an orderof removal and takes the alien intocustody for that purpose.

(4) Effect of filing an appeal. Thefiling of an appeal from a determinationof an immigration judge or districtdirector under this paragraph shall notoperate to delay compliance with theorder, nor stay the administrativeproceedings or removal.

(e) Privilege of communication. Everydetained alien shall be notified that heor she may communicate with theconsular or diplomatic officers of thecountry of his or her nationality in theUnited States. Existing treaties with thefollowing countries require immediatecommunication with appropriateconsular or diplomatic officerswhenever nationals of the followingcountries are detained in removalproceedings, whether or not requestedby the alien and even if the alienrequests that no communication beundertaken in his or her behalf. Whennotifying consular or diplomaticofficials, Service officers shall not revealthe fact that any detained alien hasapplied for asylum or withholding ofremoval.Albania 1

AntiguaArmeniaAzerbaijanBahamasBarbadosBelarusBelizeBruneiBulgariaChina (People’s Republic of) 2

Costa RicaCyprusCzech RepublicDominicaFijiGambia, TheGeorgiaGhana

GrenadaGuyanaHungaryJamaicaKazakhstanKiribatiKuwaitKyrgyzstanMalaysiaMaltaMauritiusMoldovaMongoliaNigeriaPhilippinesPolandRomaniaRussian FederationSt. Kitts/NevisSt. LuciaSt. Vincent/GrenadinesSeychellesSierra LeoneSingaporeSlovak RepublicSouth KoreaTajikistanTanzaniaTongaTrinidad/TobagoTurkmenistanTuvaluUkraineUnited Kingdom 3

U.S.S.R. 4

UzbekistanZambia

(f) Notification to Executive Office forImmigration Review of change incustody status. The Service shall notifythe Immigration Court havingadministrative control over the Recordof Proceeding of any change in custodylocation or of release from, orsubsequent taking into, Service custodyof a respondent/applicant pursuant to§ 3.19(g) of this chapter.

§ 236.2 Confined aliens, incompetents,and minors.

(a) Service. If the respondent isconfined, or if he or she is anincompetent, or a minor under the ageof 14, the notice to appear, and thewarrant of arrest, if issued, shall beserved in the manner prescribed in§ 239.1 of this chapter upon the personor persons specified by § 103.5a(c) ofthis chapter.

(b) Service custody and cost ofmaintenance. An alien confinedbecause of physical or mental disabilityin an institution or hospital shall not be


accepted into physical custody by theService until an order of removal hasbeen entered and the Service is ready toremove the alien. When such an alien isan inmate of a public or privateinstitution at the time of thecommencement of the removalproceedings, expenses for themaintenance of the alien shall not beincurred by the Government until he orshe is taken into physical custody by theService.

§ 236.3 Detention and release of juveniles.(a) Juveniles. A juvenile is defined as

an alien under the age of 18 years.(b) Release. Juveniles for whom bond

has been posted, for whom parole hasbeen authorized, or who have beenordered released on recognizance, shallbe released pursuant to the followingguidelines:

(1) Juveniles shall be released, inorder of preference, to:

(i) A parent;(ii) Legal guardian; or(iii) An adult relative (brother, sister,

aunt, uncle, grandparent) who is notpresently in Service detention, unless adetermination is made that thedetention of such juvenile is required tosecure his or her timely appearancebefore the Service or the ImmigrationCourt or to ensure the juvenile’s safetyor that of others. In cases where theparent, legal guardian, or adult relativeresides at a location distant from wherethe juvenile is detained, he or she maysecure release at a Service office locatednear the parent, legal guardian, or adultrelative.

(2) If an individual specified inparagraphs (b)(1)(i) through (iii) of thissection cannot be located to acceptcustody of a juvenile, and the juvenilehas identified a parent, legal guardian,or adult relative in Service detention,simultaneous release of the juvenile andthe parent, legal guardian, or adultrelative shall be evaluated on adiscretionary case-by-case basis.

(3) In cases where the parent or legalguardian is in Service detention oroutside the United States, the juvenilemay be released to such person as isdesignated by the parent or legalguardian in a sworn affidavit, executedbefore an immigration officer orconsular officer, as capable and willingto care for the juvenile’s well-being.Such person must execute an agreementto care for the juvenile and to ensure thejuvenile’s presence at all futureproceedings before the Service or animmigration judge.

(4) In unusual and compellingcircumstances and in the discretion ofthe district director or chief patrol agent,a juvenile may be released to an adult,

other than those identified inparagraphs (b)(1)(i) through (iii) of thissection, who executes an agreement tocare for the juvenile’s well-being and toensure the juvenile’s presence at allfuture proceedings before the Service oran immigration judge.

(c) Juvenile coordinator. The case of ajuvenile for whom detention isdetermined to be necessary should bereferred to the ‘‘Juvenile Coordinator,’’whose responsibilities should include,but not be limited to, finding suitableplacement of the juvenile in a facilitydesignated for the occupancy ofjuveniles. These may include juvenilefacilities contracted by the Service, stateor local juvenile facilities, or otherappropriate agencies authorized toaccommodate juveniles by the laws ofthe state or locality.

(d) Detention. In the case of a juvenilefor whom detention is determined to benecessary, for such interim period oftime as is required to locate suitableplacement for the juvenile, whethersuch placement is under paragraph (b)or (c) of this section, the juvenile maybe temporarily held by Serviceauthorities or placed in any Servicedetention facility having separateaccommodations for juveniles.

(e) Refusal of release. If a parent of ajuvenile detained by the Service can belocated, and is otherwise suitable toreceive custody of the juvenile, and thejuvenile indicates a refusal to bereleased to his or her parent, theparent(s) shall be notified of thejuvenile’s refusal to be released to theparent(s), and shall be afforded anopportunity to present their views to thedistrict director, chief patrol agent, orimmigration judge before a custodydetermination is made.

(f) Notice to parent of application forrelief. If a juvenile seeks release fromdetention, voluntary departure, parole,or any form of relief from removal,where it appears that the grant of suchrelief may effectively terminate someinterest inherent in the parent-childrelationship and/or the juvenile’s rightsand interests are adverse with those ofthe parent, and the parent is presentlyresiding in the United States, the parentshall be given notice of the juvenile’sapplication for relief, and shall beafforded an opportunity to present hisor her views and assert his or herinterest to the district director orimmigration judge before adetermination is made as to the meritsof the request for relief.

(g) Voluntary departure. Eachjuvenile, apprehended in the immediatevicinity of the border, who residespermanently in Mexico or Canada, shallbe informed, prior to presentation of the

voluntary departure form or beingallowed to withdraw his or herapplication for admission, that he or shemay make a telephone call to a parent,close relative, a friend, or to anorganization found on the free legalservices list. A juvenile who does notreside in Mexico or Canada who isapprehended shall be provided access toa telephone and must in factcommunicate either with a parent, adultrelative, friend, or with an organizationfound on the free legal services list priorto presentation of the voluntarydeparture form. If such juvenile, of hisor her own volition, asks to contact aconsular officer, and does in fact makesuch contact, the requirements of thissection are satisfied.

(h) Notice and request for disposition.When a juvenile alien is apprehended,he or she must be given a Form I–770,Notice of Rights and Disposition. If thejuvenile is less than 14 years of age orunable to understand the notice, thenotice shall be read and explained to thejuvenile in a language he or sheunderstands. In the event a juvenilewho has requested a hearing pursuant tothe notice subsequently decides toaccept voluntary departure or is allowedto withdraw his or her application foradmission, a new Form I–770 shall begiven to, and signed by the juvenile.

§ 236.4 Removal of S–5, S–6, and S–7nonimmigrants.

(a) Condition of classification. As acondition of classification andcontinued stay in classificationpursuant to section 101(a)(15)(S) of theAct, nonimmigrants in S classificationmust have executed Form I–854, Part B,Inter-agency Alien Witness andInformant Record, certifying that theyhave knowingly waived their right to aremoval hearing and right to contest,other than on the basis of an applicationfor withholding of deportation orremoval, any removal action, includingdetention pending deportation orremoval, instituted before lawfulpermanent resident status is obtained.

(b) Determination of deportability. (1)A determination to remove a deportablealien classified pursuant to section101(a)(15)(S) of the Act shall be made bythe district director having jurisdictionover the place where the alien islocated.

(2) A determination to remove such adeportable alien shall be based on oneor more of the grounds of deportabilitylisted in section 237 of the Act based onconduct committed after, or conduct ora condition not disclosed to the Serviceprior to, the alien’s classification as anS nonimmigrant under section101(a)(15)(S) of the Act, or for a


violation of, or failure to adhere to, theparticular terms and conditions of statusin S nonimmigrant classification.

(c) Removal procedures. (1) A districtdirector who determines to remove analien witness or informant in Snonimmigrant classification shall notifythe Commissioner, the AssistantAttorney General, Criminal Division,and the relevant law enforcementagency in writing to that effect. TheAssistant Attorney General, CriminalDivision, shall concur in or object tothat decision. Unless the AssistantAttorney General, Criminal Division,objects within 7 days, he or she shall bedeemed to have concurred in thedecision. In the event of an objection bythe Assistant Attorney General,Criminal Division, the matter will beexpeditiously referred to the DeputyAttorney General for a final resolution.In no circumstances shall the alien orthe relevant law enforcement agencyhave a right of appeal from any decisionto remove.

(2) A district director who hasprovided notice as set forth in paragraph(c)(1) of this section and who has beenadvised by the Commissioner that theAssistant Attorney General, CriminalDivision, has not objected shall issue aWarrant of Removal. The alien shallimmediately be arrested and taken intocustody by the district director initiatingthe removal. An alien classified underthe provisions of section 101(a)(15)(S) ofthe Act who is determined, pursuant toa warrant issued by a district director,to be deportable from the United Statesshall be removed from the United Statesto his or her country of nationality orlast residence. The agency thatrequested the alien’s presence in theUnited States shall ensure departurefrom the United States and so informthe district director in whosejurisdiction the alien has last resided.The district director, if necessary, shalloversee the alien’s departure from theUnited States and, in any event, shallnotify the Commissioner of the alien’sdeparture.

(d) Withholding of removal. An alienclassified pursuant to section101(a)(15)(S) of the Act who applies forwithholding of removal shall have 10days from the date the Warrant ofRemoval is served upon the alien to filean application for such relief with thedistrict director initiating the removalorder. The procedures contained in§§ 208.2 and 208.16 of this chapter shallapply to such an alien who applies forwithholding of removal.

(e) Inadmissibility. An alien whoapplies for admission under theprovisions of section 101(a)(15)(S) of theAct who is determined by an

immigration officer not to be eligible foradmission under that section or to beinadmissible to the United States underone or more of the grounds ofinadmissibility listed in section 212 ofthe Act and which have not beenpreviously waived by the Commissionerwill be taken into custody. The districtdirector having jurisdiction over theport-of-entry shall follow thenotification procedures specified inparagraph (c)(1) of this section. Adistrict director who has provided suchnotice and who has been advised by theCommissioner that the AssistantAttorney General, Criminal Division,has not objected shall remove the alienwithout further hearing. An alien maynot contest such removal, other than byapplying for withholding of removal.

§ 236.5 Fingerprints and photographs.

Every alien 14 years of age or olderagainst whom proceedings based ondeportability under section 237 of theAct are commenced under this part byservice of a notice to appear shall befingerprinted and photographed. Suchfingerprints and photographs shall bemade available to Federal, State, andlocal law enforcement agencies uponrequest to the district director or chiefpatrol agent having jurisdiction over thealien’s record. Any such alien,regardless of his or her age, shall bephotographed and/or fingerprinted ifrequired by any immigration officerauthorized to issue a notice to appear.Every alien 14 years of age or older whois found to be inadmissible to theUnited States and ordered removed byan immigration judge shall befingerprinted, unless during thepreceding year he or she has beenfingerprinted at an American consularoffice.

§§ 236.6—236.9 [Reserved]

Subpart B—Family Unity Program

§ 236.10 Description of program.

The family unity program implementsthe provisions of section 301 of theImmigration Act of 1990, Public Law101–649. This Act is referred to in thissubpart as ‘‘IMMACT 90’’.

§ 236.11 Definitions.

In this subpart, the term:Eligible immigrant means a qualified

immigrant who is the spouse orunmarried child of a legalized alien.

Legalized alien means an alien who:(1) Is a temporary or permanent

resident under section 210 or 245A ofthe Act; or

(2) Is a permanent resident undersection 202 of the Immigration Reform

and Control Act of 1986 (Cuban/HaitianAdjustment).

§ 236.12 Eligibility.(a) General. An alien who is not a

lawful permanent resident is eligible toapply for benefits under the FamilyUnity Program if he or she establishes:

(1) That he or she entered the UnitedStates before May 5, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(B) or(b)(2)(C) of section 301 of IMMACT 90),or as of December 1, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(A) ofsection 301 of IMMACT 90), and hasbeen continuously residing in theUnited States since that date; and

(2) That on May 5, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(B) or(b)(2)(C) of section 301 of IMMACT 90),or as of December 1, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(A) ofsection 301 of IMMACT 90), he or shewas the spouse or unmarried child of alegalized alien, and that he or she hasbeen eligible continuously since thattime for family-sponsored secondpreference immigrant status undersection 203(a)(2) of the Act based on thesame relationship.

(b) Legalization application pendingas of May 5, 1988 or December 1, 1988.An alien whose legalization applicationwas filed on or before May 5, 1988 (inthe case of a relationship to a legalizedalien described in subsection (b)(2)(B) or(b)(2)(C) of section 301 of IMMACT 90),or as of December 1, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(A) ofsection 301 of IMMACT 90), but notapproved until after that date will betreated as having been a legalized alienas of May 5, 1988 (in the case of arelationship to a legalized aliendescribed in subsection (b)(2)(B) or(b)(2)(C) of section 301 of IMMACT 90),or as of December 1, 1988 (in the caseof a relationship to a legalized aliendescribed in subsection (b)(2)(A) ofsection 301 of IMMACT 90), forpurposes of the Family Unity Program.

§ 236.13 Ineligible aliens.The following categories of aliens are

ineligible for benefits under the FamilyUnity Program:

(a) An alien who is deportable underany paragraph in section 237(a) of theAct, except paragraphs (1)(A), (1)(B),(1)(C), and (3)(A); provided that an alienwho is deportable under section237(a)(1)(A) of such Act is alsoineligible for benefits under the FamilyUnity Program if deportability is based


upon a ground of inadmissibilitydescribed in section 212(a)(2) or (3) ofthe Act;

(b) An alien who has been convictedof a felony or three or moremisdemeanors in the United States; or

(c) An alien described in section241(b)(3)(B) of the Act.

§ 236.14 Filing.

(a) General. An application forvoluntary departure under the FamilyUnity Program must be filed at theservice center having jurisdiction overthe alien’s place of residence. A Form I–817, Application for VoluntaryDeparture under the Family UnityProgram, must be filed with the correctfee required in § 103.7(b)(1) of thischapter and the required supportingdocumentation. A separate applicationwith appropriate fee and documentationmust be filed for each person claimingeligibility.

(b) Decision. The service centerdirector has sole jurisdiction toadjudicate an application for benefitsunder the Family Unity Program. Thedirector will provide the applicant withspecific reasons for any decision to denyan application. Denial of an applicationmay not be appealed. An applicant whobelieves that the grounds for denial havebeen overcome may submit anotherapplication with the appropriate fee anddocumentation.

(c) Referral of denied cases forconsideration of issuance of notice toappear. If an application is denied, thecase will be referred to the districtdirector with jurisdiction over thealien’s place of residence forconsideration of whether to issue anotice to appear. After an initial denial,an applicant’s case will not be referredfor issuance of a notice to appear until90 days from the date of the initialdenial, to allow the alien theopportunity to file a new Form I–817application in order to attempt toovercome the basis of the denial.However, if the applicant is found notto be eligible for benefits under§ 236.13(b), the Service reserves theright to issue a notice to appear at anytime after the initial denial.

§ 236.15 Voluntary departure and eligibilityfor employment.

(a) Authority. Voluntary departureunder this section implements theprovisions of section 301 of IMMACT90, and authority to grant voluntarydeparture under the family unityprogram derives solely from thatsection. Voluntary departure under thefamily unity program shall be governedsolely by this section, notwithstanding

the provisions of section 240B of the Actand 8 CFR part 240.

(b) Children of legalized aliens.Children of legalized aliens residing inthe United States, who were born duringan authorized absence from the UnitedStates of mothers who are currentlyresiding in the United States undervoluntary departure pursuant to theFamily Unity Program, may be grantedvoluntary departure under section 301of IMMACT 90 for a period of 2 years.

(c) Duration of voluntary departure.An alien whose application for benefitsunder the Family Unity Program isapproved will receive voluntarydeparture for 2 years, commencing withthe date of approval of the application.Voluntary departure under this sectionshall be considered effective from thedate on which the application wasproperly filed.

(d) Employment authorization. Analien granted benefits under the FamilyUnity Program is authorized to beemployed in the United States and mayapply for an employment authorizationdocument on Form I–765, Applicationfor Employment Authorization. Theapplication may be filed concurrentlywith Form I–817. The application mustbe accompanied by the correct feerequired by § 103.7(b)(1) of this chapter.The validity period of the employmentauthorization will coincide with theperiod of voluntary departure.

(e) Extension of voluntary departure.An application for an extension ofvoluntary departure under the FamilyUnity Program must be filed by the alienon Form I–817 along with the correct feerequired in § 103.7(b)(1) of this chapterand the required supportingdocumentation. The submission of acopy of the previous approval noticewill assist in shortening the processingtime. An extension may be granted if thealien continues to be eligible for benefitsunder the Family Unity Program.However, an extension may not beapproved if the legalized alien is alawful permanent resident, and apetition for family-sponsored immigrantstatus has not been filed in behalf of theapplicant. In such case the Service willnotify the alien of the reason for thedenial and afford him or her theopportunity to file another Form I–817once the petition, Form I–130, has beenfiled in behalf of him or her. Nocharging document will be issued for aperiod of 90 days.

(f) Supporting documentation forextension application. Supportingdocumentation need not includedocumentation provided with theprevious application(s). The extensionapplication need only include changesto previous applications and evidence of

continuing eligibility since the date ofthe prior approval.

§ 236.16 Travel outside the United States.

An alien granted Family UnityProgram benefits who intends to traveloutside the United States temporarilymust apply for advance authorizationusing Form I–131, Application forTravel Document. The authority to grantan application for advance authorizationfor an alien granted Family UnityProgram benefits rests solely with thedistrict director. An alien who isgranted advance authorization andreturns to the United States inaccordance with such authorization,and who is found not to be inadmissibleunder section 212(a)(2) or (3) of the Act,shall be inspected and admitted in thesame immigration status as the alienhad at the time of departure, and shallbe provided the remainder of thevoluntary departure period previouslygranted under the Family UnityProgram.

§ 236.17 Eligibility for Federal financialassistance programs.

An alien granted Family UnityProgram benefits based on a relationshipto a legalized alien as defined in§ 236.11 is ineligible for public welfareassistance in the same manner and forthe same period as the legalized alienwho is ineligible for such assistanceunder section 245A(h) or 210(f) of theAct, respectively.

§ 236. 18 Termination of Family UnityProgram benefits.

(a) Grounds for termination. TheService may terminate benefits underthe Family Unity Program whenever thenecessity for the termination comes tothe attention of the Service. Suchgrounds will exist in situationsincluding, but not limited to, those inwhich:

(1) A determination is made thatFamily Unity Program benefits wereacquired as the result of fraud or willfulmisrepresentation of a material fact;

(2) The beneficiary commits an act oracts which render him or herinadmissible as an immigrant or whoare ineligible for benefits under theFamily Unity Program;

(3) The legalized alien upon whosestatus benefits under the Family UnityProgram were based loses his or herlegalized status;

(4) The beneficiary is the subject of afinal order of exclusion, deportation, orremoval issued subsequent to the grantof Family Unity benefits unless suchfinal order is based on entry withoutinspection; violation of status; or failureto comply with section 265 of the Act;


or inadmissibility at the time of entryother than inadmissibility pursuant tosection 212(a)(2) or 212(a)(3) of the Act,regardless of whether the facts givingrise to such ground occurred before orafter the benefits were granted; or

(5) A qualifying relationship to alegalized alien no longer exists.

(b) Notice procedure. Notice of intentto terminate and of the grounds thereofshall be served pursuant to theprovisions of § 103.5a of this chapter.The alien shall be given 30 days torespond to the notice and may submitto the Service additional evidence inrebuttal. Any final decision oftermination shall also be servedpursuant to the provisions of § 103.5a ofthis chapter. Nothing in this sectionshall preclude the Service fromcommencing exclusion or deportationproceedings prior to termination ofFamily Unity Program benefits.

(c) Effect of termination. Terminationof benefits under the Family UnityProgram, other than as a result of a finalorder of removal, shall render the alienamenable to removal proceedings undersection 240 of the Act. If benefits areterminated, the period of voluntarydeparture under this section is alsoterminated.

PART 237—[REMOVED ANDRESERVED]

100. Part 237 is removed andreserved.

101. Part 238 is added to read asfollows:

PART 238—EXPEDITED REMOVAL OFAGGRAVATED FELONS

Sec.238.1 Proceedings under section 238(b) of

the Act.Authority: 8 U.S.C. 1228; 8 CFR part 2.

§ 238.1 Proceedings under section 238(b)of the Act.

(a) Definitions. As used in this part:Deciding Service officer means a

district director, chief patrol agent, oranother immigration officer designatedby a district director or chief patrolagent, who is not the same person as theissuing Service officer.

Issuing Service officer means anyService officer listed in § 239.1 of thischapter as authorized to issue notices toappear.

(b) Preliminary consideration andNotice of Intent to Issue a FinalAdministrative Deportation Order;commencement of proceedings.—(1)Basis of Service charge. An issuingService officer shall cause to be servedupon an alien a Form I–851, Notice ofIntent to Issue a Final Administrative

Deportation Order (Notice of Intent), ifthe officer is satisfied that there issufficient evidence, based uponquestioning of the alien by animmigration officer and upon any otherevidence obtained, to support a findingthat the individual:

(i) Is an alien;(ii) Has not been lawfully admitted for

permanent residence, or has conditionalpermanent resident status under section216 of the Act;

(iii) Has been convicted (as defined insection 101(a)(48) of the Act and asdemonstrated by any of the documentsor records listed in § 3.41 of thischapter) of an aggravated felony andsuch conviction has become final; and

(iv) Is deportable under section237(a)(2)(A)(iii) of the Act, including analien who has neither been admitted norparoled, but who is conclusivelypresumed deportable under section237(a)(2)(A)(iii) by operation of section238(c) of the Act (‘‘Presumption ofDeportability’’).

(2) Notice. (i) Removal proceedingsunder section 238(b) of the Act shallcommence upon personal service of theNotice of Intent upon the alien, asprescribed by §§ 103.5a(a)(2) and103.5a(c)(2) of this chapter. The Noticeof Intent shall set forth the preliminarydeterminations and inform the alien ofthe Service’s intention to issue a FormI–851A, Final Administrative RemovalOrder, without a hearing before animmigration judge. This Notice shallconstitute the charging document. TheNotice of Intent shall include allegationsof fact and conclusions of law. It shalladvise that the alien: has the privilegeof being represented, at no expense tothe Government, by counsel of thealien’s choosing, as long as counsel isauthorized to practice in deportationproceedings; may inspect the evidencesupporting the Notice of Intent; and mayrebut the charges within 10 calendardays after service of such Notice (or 13calendar days if service of the Noticewas by mail).

(ii) The Notice of Intent also shalladvise the alien that he or she maydesignate in writing, within the rebuttalperiod, the country to which he or shechooses to be deported in accordancewith section 241 of the Act, in the eventthat a Final Administrative RemovalOrder is issued, and that the Servicewill honor such designation only to theextent permitted under the terms,limitations, and conditions of section241 of the Act.

(iii) The Service must determine thatthe person served with the Notice ofIntent is the person named on thenotice.

(iv) The Service shall provide thealien with a list of available free legalservices programs qualified under 8 CFRpart 3 and organizations recognizedpursuant to 8 CFR part 292, locatedwithin the district or sector where theNotice of Intent is issued.

(v) The Service must either providethe alien with a written translation ofthe Notice of Intent or explain thecontents of the Notice of Intent to thealien in the alien’s native language or ina language that the alien understands.

(c) Alien’s response. (1) Time forresponse. The alien will have 10calendar days from service of the Noticeof Intent, or 13 calendar days if serviceis by mail, to file a response to theNotice of Intent. In the response, thealien may: designate his or her choice ofcountry for removal; submit a writtenresponse rebutting the allegationssupporting the charge and/or requestingthe opportunity to review theGovernment’s evidence; and/or requestin writing an extension of time forresponse, stating the specific reasonswhy such an extension is necessary.Alternatively, the alien may, in writing,choose to accept immediate issuance ofa Final Administrative Removal Order.The deciding Service officer may extendthe time for response for good causeshown. A request for extension of timefor response will not automaticallyextend the period for the response. Thealien will be permitted to file a responseoutside the prescribed period only if thedeciding Service officer permits it. Thealien must send the response to thedeciding Service officer at the addressprovided in the Notice of Intent.

(2) Nature of rebuttal or request toreview evidence. (i) If an alien choosesto rebut the allegations contained in theNotice of Intent, the alien’s writtenresponse must indicate which finding(s)are being challenged and should beaccompanied by affidavit(s),documentary information, or otherspecific evidence supporting thechallenge.

(ii) If an alien’s written responserequests the opportunity to review theGovernment’s evidence, the Serviceshall serve the alien with a copy of theevidence in the record of proceedingupon which the Service is relying tosupport the charge. The alien may,within 10 calendar days followingservice of the Government’s evidence(13 calendar days if service is by mail),furnish a final response in accordancewith paragraph (c)(1) of this section. Ifthe alien’s final response is a rebuttal ofthe allegations, such a final responseshould be accompanied by affidavit(s),documentary information, or other


specific evidence supporting thechallenge.

(d) Determination by deciding Serviceofficer. (1) No response submitted orconcession of deportability. If thedeciding Service officer does not receivea timely response and the evidence inthe record of proceeding establishesdeportability by clear, convincing, andunequivocal evidence, or if the alienconcedes deportability, then thedeciding Service officer shall issue andcause to be served upon the alien aFinal Administrative Removal Orderthat states the reasons for thedeportation decision. The alien may, inwriting, waive the 14-day waitingperiod before execution of the finalorder of removal provided in aparagraph (f) of this section.

(2) Response submitted. (i)Insufficient rebuttal; no genuine issue ofmaterial fact. If the alien timely submitsa rebuttal to the allegations, but thedeciding Service officer finds thatdeportability is established by clear,convincing, and unequivocal evidencein the record of proceeding, thedeciding Service officer shall issue andcause to be served upon the alien aFinal Administrative Removal Orderthat states the reasons for the decisionof deportability.

(ii) Additional evidence required. (A)If the deciding Service officer finds thatthe record of proceeding, including thealien’s timely rebuttal, raises a genuineissue of material fact regarding thepreliminary findings, the decidingService officer may either obtainadditional evidence from any source,including the alien, or cause to beissued a notice to appear to initiateremoval proceedings under section 240of the Act. The deciding Service officermay also obtain additional evidencefrom any source, including the alien, ifthe deciding Service officer deems thatsuch additional evidence may aid theofficer in the rendering of a decision.

(B) If the deciding Service officerconsiders additional evidence from asource other than the alien, thatevidence shall be made a part of therecord of proceeding, and shall beprovided to the alien. If the alien electsto submit a response to such additionalevidence, such response must be filedwith the Service within 10 calendardays of service of the additionalevidence (or 13 calendar days if serviceis by mail). If the deciding Serviceofficer finds, after considering alladditional evidence, that deportabilityis established by clear, convincing, andunequivocal evidence in the record ofproceeding, the deciding Service officershall issue and cause to be served uponthe alien a Final Administrative

Removal Order that states the reasonsfor the decision of deportability.

(iii) Conversion to proceedings undersection 240 of the Act. If the decidingService officer finds that the alien is notamenable to removal under section 238of the Act, the deciding Service officershall terminate the expeditedproceedings under section 238 of theAct and shall, where appropriate, causeto be issued a notice to appear for thepurpose of initiating removalproceedings before an immigrationjudge under section 240 of the Act.

(3) Termination of proceedings bydeciding Service officer. Only thedeciding Service officer may terminateproceedings under section 238 of theAct, in accordance with this section.

(e) Proceedings commenced undersection 240 of the Act. In anyproceeding commenced under section240 of the Act which is based ondeportability under section 237 of theAct, if it appears that the respondentalien is subject to removal pursuant tosection 238 of the Act, the immigrationjudge may, upon the Service’s request,terminate the case and, upon suchtermination, the Service may commenceadministrative proceedings undersection 238 of the Act. However, in theabsence of any such request, theimmigration judge shall complete theproceeding commenced under section240 of the Act.

(f) Executing final removal order ofdeciding Service officer. (1) Time ofexecution. Upon the issuance of a FinalAdministrative Removal Order, theService shall issue a Warrant ofRemoval in accordance with § 241.2 ofthis chapter; such warrant shall beexecuted no sooner than 14 calendardays after the date the FinalAdministrative Removal Order isissued, unless the alien knowingly,voluntarily, and in writing waives the14-day period.

(2) Country to which alien is to beremoved. The deciding Service officershall designate the country of removalin the manner prescribed by section 241of the Act.

(g) Arrest and detention. At the timeof issuance of a Notice of Intent or atany time thereafter and up to the timethe alien becomes the subject of aWarrant of Removal, the alien may bearrested and taken into custody underthe authority of a Warrant of Arrestissued by an officer listed in§ 287.5(e)(2) of this chapter. Thedecision of the Service concerningcustody or bond shall not beadministratively appealable duringproceedings initiated under section 238of the Act and this part.

(h) Record of proceeding. The Serviceshall maintain a record of proceedingfor judicial review of the FinalAdministrative Removal Order soughtby any petition for review. The recordof proceeding shall include, but notnecessarily be limited to: the chargingdocument (Notice of Intent); the FinalAdministrative Removal Order(including any supplementalmemorandum of decision); the alien’sresponse, if any; all evidence in supportof the charge; and any admissibleevidence, briefs, or documentssubmitted by either party respectingdeportability. The executed duplicate ofthe Notice of Intent in the record ofproceedings shall be retained asevidence that the individual uponwhom the notice for the proceeding wasserved was, in fact, the alien named inthe notice.

102. Part 239 is added to read asfollows:

PART 239—INITIATION OF REMOVALPROCEEDINGS

Sec.239.1 Notice to appear.239.2 Cancellation of notice to appear.239.3 Effect of filing notice to appear.


§ 239.1 Notice to appear.(a) Commencement. Every removal

proceeding conducted under section240 of the Act to determine thedeportability or inadmissibility of analien is commenced by the filing of anotice to appear with the ImmigrationCourt. Any immigration officerperforming an inspection of an arrivingalien at a port-of-entry may issue anotice to appear to such an alien. Inaddition, the following officers, orofficers acting in such capacity, mayissue a notice to appear:

(1) District directors (except foreign);(2) Deputy district directors (except

foreign);(3) Assistant district directors for

investigations;(4) Deputy assistant district directors

for investigations;(5) Assistant district directors for

deportation;(6) Deputy assistant district directors

for deportation;(7) Assistant district directors for

examinations;(8) Deputy assistant district directors

for examinations;(9) Officers in charge (except foreign);(10) Assistant officers in charge

(except foreign);(11) Chief patrol agents;(12) Deputy chief patrol agents;(13) Associate chief patrol agents;


(14) Assistant chief patrol agents;(15) Patrol agents in charge;(16) The Assistant Commissioner,

Investigations;(17) Service center directors;(18) Deputy center directors;(19) Assistant center directors for

examinations;(20) Supervisory asylum officers;(21) Institutional Hearing Program

directors; or(22) Deputy Institutional Hearing

Program directors.(b) Service of notice to appear.

Service of the notice to appear shall bein accordance with section 239 of theAct.

§ 239.2 Cancellation of notice to appear.(a) Any officer authorized by

§ 239.1(a) to issue a notice to appearmay cancel such notice prior tojurisdiction vesting with theimmigration judge pursuant to § 3.14 ofthis chapter provided the officer issatisfied that:

(1) The respondent is a national of theUnited States;

(2) The respondent is not deportableor inadmissible under immigrationlaws;

(3) The respondent is deceased;(4) The respondent is not in the

United States;(5) The notice was issued for the

respondent’s failure to file a timelypetition as required by section 216(c) ofthe Act, but his or her failure to file atimely petition was excused inaccordance with section 216(d)(2)(B) ofthe Act;

(6) The notice to appear wasimprovidently issued, or

(7) Circumstances of the case havechanged after the notice to appear wasissued to such an extent thatcontinuation is no longer in the bestinterest of the government.

(b) A notice to appear issued pursuantto section 235(b)(3) of the Act may becanceled under provisions inparagraphs (a)(2) and (a)(6) of thissection only by the issuing officer,unless it is impracticable for the issuingofficer to cancel the notice.

(c) Motion to dismiss. Aftercommencement of proceedings pursuantto § 3.14 of this chapter, Servicecounsel, or any officer enumerated inparagraph (a) of this section may movefor dismissal of the matter on thegrounds set out under paragraph (a) ofthis section. Dismissal of the mattershall be without prejudice to the alienor the Service.

(d) Motion for remand. Aftercommencement of the hearing, Servicecounsel, or any officer enumerated inparagraph (a) of this section may move

for remand of the matter to districtjurisdiction on the ground that theforeign relations of the United States areinvolved and require furtherconsideration. Remand of the mattershall be without prejudice to the alienor the Service.

(e) Warrant of arrest. When a noticeto appear is canceled or proceedings areterminated under this section anyoutstanding warrant of arrest iscanceled.

(f) Termination of removalproceedings by immigration judge. Animmigration judge may terminateremoval proceedings to permit the aliento proceed to a final hearing on apending application or petition fornaturalization when the alien hasestablished prima facie eligibility fornaturalization and the matter involvesexceptionally appealing orhumanitarian factors; in every othercase, the removal hearing shall becompleted as promptly as possiblenotwithstanding the pendency of anapplication for naturalization duringany state of the proceedings.

§ 239.3 Effect of filing notice to appear.The filing of a notice to appear shall

have no effect in determining periods ofunlawful presence as defined in section212(a)(9)(B) of the Act.

§§ 240.1–240.20 [Redesignated as§§ 244.3–244.22]

103. Sections 240.1 through 240.20are redesignated as §§ 244.3 through244.22.


PART 240—PROCEEDINGS TODETERMINE REMOVABILITY OFALIENS IN THE UNITED STATES

Subpart A—Removal ProceedingsSec.240.1 Immigration judges.240.2 Service counsel.240.3 Representation by counsel.240.4 Incompetent respondents.240.5 Interpreter.240.6 Postponement and adjournment of

hearing.240.7 Evidence in removal proceedings

under section 240 of the Act.240.8 Burdens of proof in removal

proceedings.240.9 Contents of record.240.10 Hearing.240.11 Ancillary matters, applications.240.12 Decision of the immigration judge.240.13 Notice of decision.240.14 Finality of order.240.15 Appeals.240.16 Application of new procedures or

termination of proceedings in oldproceedings pursuant to section 309(c) ofPublic Law 104–208.

240.17–240.19 [Reserved]

Subpart B—Cancellation of Removal

240.20 Cancellation of removal andadjustment of status under section 240Aof the Act.

240.21–240.24 [Reserved]

Subpart C—Voluntary Departure

240.25 Voluntary departure—authority ofthe Service.

240.26 Voluntary departure—authority ofthe Executive Office for ImmigrationReview.

240.27–240.29 [Reserved]

Subpart D—Exclusion of Aliens (forproceedings commenced prior to April 1,1997)

240.30 Proceedings prior to April 1, 1997.240.31 Authority of immigration judges.240.32 Hearing.240.33 Applications for asylum or

withholding of deportation.240.34 Renewal of application for

adjustment of status under section 245 ofthe Act.

240.35 Decision of the immigration judge;notice to the applicant.

240.36 Finality of order.240.37 Appeals.240.38 Fingerprinting of excluded aliens.240.39 [Reserved]

Subpart E—Proceedings to determinedeportability of aliens in the United States:Hearing and Appeal (for proceedingscommenced prior to April 1, 1997)240.40 Proceedings commenced prior to

April 1, 1997.240.41 Immigration judges.240.42 Representation by counsel.240.43 Incompetent respondents.240.44 Interpreter.240.45 Postponement and adjournment of

hearing.240.46 Evidence.240.47 Contents of record.240.48 Hearing.240.49 Ancillary matters, applications.240.50 Decision of the immigration judge.240.51 Notice of decision.240.52 Finality of order.240.53 Appeals.240.54 [Reserved]

Subpart F—Suspension of Deportation andVoluntary Departure (for proceedingscommenced prior to April 1, 1997)

240.55 Proceedings commenced prior toApril 1, 1997.

240.56 Application.240.57 Extension of time to depart.

Subpart G—Civil Penalties for Failure toDepart [Reserved]

Authority: 8 U.S.C. 1103; 1182, 1186a,1224, 1225, 1226, 1227, 1251, 1252 note,1252a, 1252b, 1362; 8 CFR part 2.

Subpart A—Removal Proceedings

§ 240.1 Immigration judges.(a) Authority. In any removal

proceeding pursuant to section 240 ofthe Act, the immigration judge shallhave the authority to: determineremovability pursuant to section


240(a)(1) of the Act; to make decisions,including orders of removal as providedby section 240(c)(1)(A) of the Act; todetermine applications under sections208, 212(a)(2)(F), 212(a)(6)(F)(ii),212(a)(9)(B)(v), 212(d)(11), 212(d)(12),212(g), 212(h), 212(i), 212(k),237(a)(1)(E)(iii), 237(a)(1)(H),237(a)(3)(C)(ii), 240A(a) and (b), 240B,245, and 249 of the Act; to orderwithholding of removal pursuant tosection 241(b)(3) of the Act; and to takeany other action consistent withapplicable law and regulations as maybe appropriate. In determining casesreferred for further inquiry, immigrationjudges shall have the powers andauthority conferred upon them by theAct and this chapter. Subject to anyspecific limitation prescribed by the Actand this chapter, immigration judgesshall also exercise the discretion andauthority conferred upon the AttorneyGeneral by the Act as is appropriate andnecessary for the disposition of suchcases. An immigration judge may certifyhis or her decision in any case undersection 240 of the Act to the Board ofImmigration Appeals when it involvesan unusually complex or novel questionof law or fact. Nothing contained in thispart shall be construed to diminish theauthority conferred on immigrationjudges under sections 101(b)(4) and 103of the Act.

(b) Withdrawal and substitution ofimmigration judges. The immigrationjudge assigned to conduct the hearingshall at any time withdraw if he or shedeems himself or herself disqualified. Ifan immigration judge becomesunavailable to complete his or herduties, another immigration judge maybe assigned to complete the case. Thenew immigration judge shall familiarizehimself or herself with the record in thecase and shall state for the record thathe or she has done so.

(c) Conduct of hearing. Theimmigration judge shall receive andconsider material and relevant evidence,rule upon objections, and otherwiseregulate the course of the hearing.

§ 240.2 Service counsel.(a) Authority. Service counsel shall

present on behalf of the governmentevidence material to the issues ofdeportability or inadmissibility and anyother issues that may requiredisposition by the immigration judge.The duties of the Service counselinclude, but are not limited to, thepresentation of evidence and theinterrogation, examination, and cross-examination of the respondent or otherwitnesses. Nothing contained in thissubpart diminishes the authority of animmigration judge to conduct

proceedings under this part. The Servicecounsel is authorized to appeal from adecision of the immigration judgepursuant to § 3.38 of this chapter and tomove for reopening or reconsiderationpursuant to § 3.23 of this chapter.

(b) Assignment. In a removalproceeding, the Service shall assign anattorney to each case within theprovisions of § 240.10(d), and to eachcase in which an unrepresentedrespondent is incompetent or is under18 years of age, and is not accompaniedby a guardian, relative, or friend. In acase in which the removal proceedingwould result in an order of removal, theService shall assign an attorney to eachcase in which a respondent’s nationalityis in issue. A Service attorney shall beassigned in every case in which theCommissioner approves the submissionof non-record information under§ 240.11(a)(3). In his or her discretion,whenever he or she deems suchassignment necessary or advantageous,the General Counsel may assign aService attorney to any other case at anystage of the proceeding.

§ 240.3 Representation by counsel.

The respondent may be represented atthe hearing by an attorney or otherrepresentative qualified under 8 CFRpart 292.

§ 240.4 Incompetent respondents.

When it is impracticable for therespondent to be present at the hearingbecause of mental incompetency, theattorney, legal representative, legalguardian, near relative, or friend whowas served with a copy of the notice toappear shall be permitted to appear onbehalf of the respondent. If such aperson cannot reasonably be found orfails or refuses to appear, the custodianof the respondent shall be requested toappear on behalf of the respondent.

§ 240.5 Interpreter.

Any person acting as an interpreter ina hearing before an immigration judgeunder this part shall be sworn tointerpret and translate accurately,unless the interpreter is an employee ofthe United States Government, in whichevent no such oath shall be required.

§ 240.6 Postponement and adjournment ofhearing.

After the commencement of thehearing, the immigration judge maygrant a reasonable adjournment either athis or her own instance or, for goodcause shown, upon application by therespondent or the Service.

§ 240.7 Evidence in removal proceedingsunder section 240 of the Act.

(a) Use of prior statements. Theimmigration judge may receive inevidence any oral or written statementthat is material and relevant to any issuein the case previously made by therespondent or any other person duringany investigation, examination, hearing,or trial.

(b) Testimony. Testimony of witnessesappearing at the hearing shall be underoath or affirmation administered by theimmigration judge.

(c) Depositions. The immigrationjudge may order the taking ofdepositions pursuant to § 3.35 of thischapter.

§ 240.8 Burdens of proof in removalproceedings.

(a) Deportable aliens. A respondentcharged with deportability shall befound to be removable if the Serviceproves by clear and convincingevidence that the respondent isdeportable as charged.

(b) Arriving aliens. In proceedingscommenced upon a respondent’s arrivalin the Untied States or after therevocation or expiration of parole, therespondent must prove that he or she isclearly and beyond a doubt entitled tobe admitted to the United States and isnot inadmissible as charged.

(c) Aliens present in the United Stateswithout being admitted or paroled. Inthe case of a respondent charged asbeing in the United States without beingadmitted or paroled, the Service mustfirst establish the alienage of therespondent. Once alienage has beenestablished, unless the respondentdemonstrates by clear and convincingevidence that he or she is lawfully inthe United States pursuant to a prioradmission, the respondent must provethat he or she is clearly and beyond adoubt entitled to be admitted to theUnited States and is not inadmissible ascharged.

(d) Relief from removal. Therespondent shall have the burden ofestablishing that he or she is eligible forany requested benefit or privilege andthat it should be granted in the exerciseof discretion. If the evidence indicatesthat one or more of the grounds formandatory denial of the application forrelief may apply, the alien shall havethe burden of proving by apreponderance of the evidence that suchgrounds do not apply.

§ 240.9 Contents of record.The hearing before the immigration

judge, including the testimony, exhibits,applications, proffers, and requests, theimmigration judge’s decision, and all


written orders, motions, appeals, briefs,and other papers filed in theproceedings shall constitute the recordin the case. The hearing shall berecorded verbatim except for statementsmade off the record with the permissionof the immigration judge. In his or herdiscretion, the immigration judge mayexclude from the record any argumentsmade in connection with motions,applications, requests, or objections, butin such event the person affected maysubmit a brief.

§ 240.10 Hearing.(a) Opening. In a removal proceeding,

the immigration judge shall:(1) Advise the respondent of his or

her right to representation, at noexpense to the government, by counselof his or her own choice authorized topractice in the proceedings and requirethe respondent to state then and therewhether he or she desiresrepresentation;

(2) Advise the respondent of theavailability of free legal servicesprovided by organizations and attorneysqualified under 8 CFR part 3 andorganizations recognized pursuant to§ 292.2 of this chapter, located in thedistrict where the removal hearing isbeing held;

(3) Ascertain that the respondent hasreceived a list of such programs, and acopy of appeal rights;

(4) Advise the respondent that he orshe will have a reasonable opportunityto examine and object to the evidenceagainst him or her, to present evidencein his or her own behalf and to cross-examine witnesses presented by thegovernment (but the respondent shallnot be entitled to examine such nationalsecurity information as the governmentmay proffer in opposition to therespondent’s admission to the UnitedStates or to an application by therespondent for discretionary relief);

(5) Place the respondent under oath;(6) Read the factual allegations and

the charges in the notice to appear to therespondent and explain them in non-technical language; and

(7) Enter the notice to appear as anexhibit in the Record of Proceeding.

(b) Public access to hearings. Removalhearings shall be open to the public,except that the immigration judge may,in his or her discretion, closeproceedings as provided in § 3.27 of thischapter.

(c) Pleading by respondent. Theimmigration judge shall require therespondent to plead to the notice toappear by stating whether he or sheadmits or denies the factual allegationsand his or her removability under thecharges contained therein. If the

respondent admits the factualallegations and admits his or herremovability under the charges and theimmigration judge is satisfied that noissues of law or fact remain, theimmigration judge may determine thatremovability as charged has beenestablished by the admissions of therespondent. The immigration judgeshall not accept an admission ofremovability from an unrepresentedrespondent who is incompetent orunder the age of 18 and is notaccompanied by an attorney or legalrepresentative, a near relative, legalguardian, or friend; nor from an officerof an institution in which a respondentis an inmate or patient. When, pursuantto this paragraph, the immigration judgedoes not accept an admission ofremovability, he or she shall direct ahearing on the issues.

(d) Issues of removability. Whenremovability is not determined underthe provisions of paragraph (c) of thissection, the immigration judge shallrequest the assignment of an Servicecounsel, and shall receive evidence as toany unresolved issues, except that nofurther evidence need be received as toany facts admitted during the pleading.The alien shall provide a court certifiedcopy of a Judicial RecommendationAgainst Deportation (JRAD) to theimmigration judge when suchrecommendation will be the basis ofdenying any charge(s) brought by theService in the proceedings against thealien. No JRAD is effective against acharge of deportability under formersection 241(a)(11) of the Act or if theJRAD was granted on or after November29, 1990.

(e) Additional charges in removalhearings. At any time during theproceeding, additional or substitutedcharges of inadmissibility and/ordeportability and/or factual allegationsmay be lodged by the Service in writing.The alien in removal proceedings shallbe served with a copy of theseadditional charges and allegations. Theimmigration judge shall read theadditional factual allegations andcharges to the alien and explain them tohim or her. The immigration judge shalladvise the alien, if he or she is notrepresented by counsel, that the alienmay be so represented, and that he orshe may be given a reasonablecontinuance to respond to theadditional factual allegations andcharges. Thereafter, the provision of§ 240.6(b) relating to pleading shallapply to the additional factualallegations and charges.

(f) Country of removal. Theimmigration judge shall notify the alienthat if he or she is finally ordered

removed, the country of removal will inthe first instance be directed pursuant tosection 241(b) of the Act to the countrydesignated by the alien, unless section241(b)(2)(C) of the Act applies, and shallafford him or her an opportunity thenand there to make such designation. Theimmigration judge shall then specifyand state for the record the country, orcountries in the alternative, to whichthe alien’s removal will be directedpursuant to section 241(b) of the Act ifthe country of his or her designationwill not accept him or her into itsterritory, or fails to furnish timely noticeof acceptance, or if the alien declines todesignate a country.

(g) In the event that the Service isunable to remove the alien to thespecified or alternative country orcountries, the Service may remove thealien to any other country as permittedby section 241(b) of the Act.

§ 240.11 Ancillary matters, applications.(a) Creation of the status of an alien

lawfully admitted for permanentresidence. (1) In a removal proceeding,an alien may apply to the immigrationjudge for cancellation of removal undersection 240A of the Act, adjustment ofstatus under section 245 of the Act,adjustment of status under section 1 ofthe Act of November 2, 1966 (asmodified by section 606 of Public Law104–132) or under section 101 or 104 ofthe Act of October 28, 1977, or for thecreation of a record of lawful admissionfor permanent residence under section249 of the Act. The application shall besubject to the requirements of § 240.20,and 8 CFR parts 245 and 249. Theapproval of any application made to theimmigration judge under section 245 ofthe Act by an alien spouse (as definedin section 216(g)(1) of the Act) or by analien entrepreneur (as defined in section216A(f)(1) of the Act) shall result in thealien’s obtaining the status of lawfulpermanent resident on a conditionalbasis in accordance with the provisionsof section 216 or 216A of the Act,whichever is applicable. However, thePetition to Remove the Conditions onResidence required by section 216(c) ofthe Act, or the Petition by Entrepreneurto Remove Conditions required bysection 216A(c) of the Act shall be madeto the director in accordance with 8 CFRpart 216.

(2) In conjunction with anyapplication for creation of status of analien lawfully admitted for permanentresidence made to an immigrationjudge, if the alien is inadmissible underany provision of section 212(a) of theAct, and believes that he or she meetsthe eligibility requirements for a waiverof the ground of inadmissibility, he or


she may apply to the immigration judgefor such waiver. The immigration judgeshall inform the alien of his or herapparent eligibility to apply for any ofthe benefits enumerated in this chapterand shall afford the alien an opportunityto make application during the hearing.

(3) In exercising discretionary powerwhen considering an application forstatus as a permanent resident underthis chapter, the immigration judge mayconsider and base the decision oninformation not contained in the recordand not made available for inspectionby the alien, provided theCommissioner has determined that suchinformation is relevant and is classifiedunder the applicable Executive Order asrequiring protection from unauthorizeddisclosure in the interest of nationalsecurity. Whenever the immigrationjudge believes that he or she can do sowhile safeguarding both the informationand its source, the immigration judgeshould inform the alien of the generalnature of the information in order thatthe alien may have an opportunity tooffer opposing evidence. A decisionbased in whole or in part on suchclassified information shall state thatthe information is material to thedecision.

(b) Voluntary departure. The alienmay apply to the immigration judge forvoluntary departure in lieu of removalpursuant to section 240B of the Act andsubpart C of this part.

(c) Applications for asylum andwithholding of removal. (1) If the alienexpresses fear of persecution or harmupon return to any of the countries towhich the alien might be removedpursuant to § 240.10(f), and the alienhas not previously filed an applicationfor asylum or withholding of removalthat has been referred to theimmigration judge by an asylum officerin accordance with § 208.14 of thischapter, the immigration judge shall:

(i) Advise the alien that he or she mayapply for asylum in the United States orwithholding of removal to thosecountries;

(ii) Make available the appropriateapplication forms; and

(iii) Advise the alien of the privilegeof being represented by counsel at noexpense to the government and of theconsequences, pursuant to section208(d)(6) of the Act, of knowingly filinga frivolous application for asylum. Theimmigration judge shall provide to thealien a list of persons who haveindicated their availability to representaliens in asylum proceedings on a probono basis.

(2) An application for asylum orwithholding of removal must be filedwith the Immigration Court, pursuant to

§ 208.4(c) of this chapter. Upon receiptof an application that has not beenreferred by an asylum officer, theImmigration Court shall forward a copyto the Department of State pursuant to§ 208.11 of this chapter and shallcalendar the case for a hearing. Thereply, if any, from the Department ofState, unless classified under theapplicable Executive Order, shall begiven to both the alien and to theService counsel representing thegovernment.

(3) Applications for asylum andwithholding of removal so filed will bedecided by the immigration judgepursuant to the requirements andstandards established in 8 CFR part 208of this chapter after an evidentiaryhearing to resolve factual issues indispute. An evidentiary hearingextending beyond issues related to thebasis for a mandatory denial of theapplication pursuant to § 208.14 or§ 208.16 of this chapter is not necessaryonce the immigration judge hasdetermined that such a denial isrequired.

(i) Evidentiary hearings onapplications for asylum or withholdingof removal will be open to the publicunless the alien expressly requests thatthe hearing be closed pursuant to § 3.27of this chapter. The immigration judgeshall inquire whether the alien requestssuch closure.

(ii) Nothing in this section is intendedto limit the authority of the immigrationjudge to properly control the scope ofany evidentiary hearing.

(iii) During the removal hearing, thealien shall be examined under oath onhis or her application and may presentevidence and witnesses in his or herown behalf. The alien has the burden ofestablishing that he or she is a refugeeas defined in section 101(a)(42) of theAct pursuant to the standards set forthin § 208.13 of this chapter.

(iv) Service counsel may callwitnesses and present evidence for therecord, including information classifiedunder the applicable Executive Order,provided the immigration judge or theBoard has determined that suchinformation is relevant to the hearing.When the immigration judge receivessuch classified information, he or sheshall inform the alien. The agency thatprovides the classified information tothe immigration judge may provide anunclassified summary of theinformation for release to the alien,whenever it determines it can do soconsistently with safeguarding both theclassified nature of the information andits sources. The summary should be asdetailed as possible, in order that thealien may have an opportunity to offer

opposing evidence. A decision based inwhole or in part on such classifiedinformation shall state whether suchinformation is material to the decision.

(4) The decision of an immigrationjudge to grant or deny asylum orwithholding of removal shall becommunicated to the alien and to theService counsel. An adverse decisionshall state why asylum or withholdingof removal was denied.

(d) Application for relief undersections 237(a)(1)(H) and237(a)(1)(E)(iii) of the Act. Therespondent may apply to theimmigration judge for relief fromremoval under sections 237(a)(1)(H) and237(a)(1)(E)(iii) of the Act.

(e) General. An application under thissection shall be made only during thehearing and shall not be held toconstitute a concession of alienage ordeportability in any case in which therespondent does not admit his or heralienage or deportability. However,nothing in this section shall prohibit theService from using information suppliedin an application for asylum orwithholding of deportation or removalsubmitted to the Service on or afterJanuary 4, 1995, as the basis for issuanceof a charging document or to establishalienage or deportability in a casereferred to an immigration judge under§ 208.14(b) of this chapter. The alienshall have the burden of establishingthat he or she is eligible for anyrequested benefit or privilege and that itshould be granted in the exercise ofdiscretion. Nothing contained in thissection is intended to foreclose therespondent from applying for anybenefit or privilege that he or shebelieves himself or herself eligible toreceive in proceedings under this part.Nothing in this section is intended tolimit the Attorney General’s authority toremove an alien to any countrypermitted by section 241(b) of the Act.

(f) Fees. The alien shall not berequired to pay a fee on more than oneapplication within paragraphs (a) and(c) of this section, provided that theminimum fee imposed when more thanone application is made shall bedetermined by the cost of theapplication with the highest fee.

§ 240.12 Decision of the immigrationjudge.

(a) Contents. The decision of theimmigration judge may be oral orwritten. The decision of the immigrationjudge shall include a finding as toinadmissibility or deportability. Theformal enumeration of findings is notrequired. The decision shall alsocontain reasons for granting or denyingthe request. The decision shall be


concluded with the order of theimmigration judge.

(b) Summary decision.Notwithstanding the provisions ofparagraph (a) of this section, in any casewhere inadmissibility or deportability isdetermined on the pleadings pursuantto § 240.10(b) and the respondent doesnot make an application under § 240.11,the alien is statutorily ineligible forrelief, or the respondent applies forvoluntary departure only and theimmigration judge grants theapplication, the immigration judge mayenter a summary decision or, ifvoluntary departure is granted, asummary decision with an alternateorder of removal.

(c) Order of the immigration judge.The order of the immigration judge shalldirect the respondent’s removal, or thetermination of the proceedings, or suchother disposition of the case as may beappropriate. When removal is ordered,the immigration judge shall specify thecountry, or countries in the alternate, towhich respondent’s removal shall bedirected. The immigration judge isauthorized to issue orders in thealternative or in combination as he orshe may deem necessary.

§ 240.13 Notice of decision.

(a) Written decision. A writtendecision shall be served upon therespondent and the Service counsel,together with the notice referred to in§ 3.3 of this chapter. Service by mail iscomplete upon mailing.

(b) Oral decision. An oral decisionshall be stated by the immigration judgein the presence of the respondent andthe Service counsel, if any, at theconclusion of the hearing. A copy of thesummary written order shall befurnished at the request of therespondent or the Service counsel.

(c) Summary decision. When theimmigration judge renders a summarydecision as provided in § 240.12(b), heor she shall serve a copy thereof uponthe respondent and the Service counselat the conclusion of the hearing.

(d) Decision to remove. If theimmigration judge decides that therespondent is removable and orders therespondent to be removed, theimmigration judge shall advise therespondent of such decision, and of theconsequences for failure to depart underthe order of removal, including civil andcriminal penalties described at sections274D and 243 of the Act. Unless appealfrom the decision is waived, therespondent shall be furnished withForm EOIR–26, Notice of Appeal, andadvised of the provisions of § 240.15.

§ 240.14 Finality of order.The order of the immigration judge

shall become final in accordance with§ 3.39 of this chapter.

§ 240.15 Appeals.Pursuant to 8 CFR part 3, an appeal

shall lie from a decision of animmigration judge to the Board ofImmigration Appeals, except that noappeal shall lie from an order ofremoval entered in absentia. Theprocedures regarding the filing of aForm EOIR 26, Notice of Appeal, fees,and briefs are set forth in §§ 3.3, 3.31,and 3.38 of this chapter. An appeal shallbe filed within 30 calendar days afterthe mailing of a written decision, thestating of an oral decision, or the serviceof a summary decision. The filing dateis defined as the date of receipt of theNotice of Appeal by the Board ofImmigration Appeals. The reasons forthe appeal shall be stated in the Noticeof Appeal in accordance with theprovisions of § 3.3(b) of this chapter.Failure to do so may constitute a groundfor dismissal of the appeal by the Boardpursuant to § 3.1(d)(1–a) of this chapter.

§ 240.16 Application of new procedures ortermination of proceedings in oldproceedings pursuant to section 309(c) ofPublic Law 104–208.

The Attorney General shall have thesole discretion to apply the provisionsof section 309(c) of Public Law 104–208,which provides for the application ofnew removal procedures to certain casesin exclusion or deportation proceedingsand for the termination of certain casesin exclusion or deportation proceedingsand initiation of new removalproceedings. The Attorney General’sapplication of the provisions of section309(c) shall become effective uponpublication of a notice in the FederalRegister. However, if the AttorneyGeneral determines, in the exercise ofhis or her discretion, that the delaycaused by publication would adverselyaffect the interests of the United Statesor the effective enforcement of theimmigration laws, the AttorneyGeneral’s application shall becomeeffective immediately upon issuance,and shall be published in the FederalRegister as soon as practicablethereafter.

§§ 240.17—240.19 [Reserved]

Subpart B—Cancellation of removal

§ 240.20 Cancellation of removal andadjustment of status under section 240A ofthe Act.

(a) Jurisdiction. An application for theexercise of discretion under section240A of the Act shall be submitted on

Form EOIR–42, Application forCancellation of Removal, to theImmigration Court havingadministrative control over the Recordof Proceeding of the underlying removalproceeding under section 240 of the Act.The application must be accompaniedby payment of the filing fee as set forthin § 103.7(b) of this chapter or a requestfor a fee waiver.

(b) Filing the application. Theapplication may be filed only with theImmigration Court after jurisdiction hasvested pursuant to § 3.14 of this chapter.

§§ 240.21—240.24 [Reserved]

Subpart C—Voluntary Departure

§ 240.25 Voluntary departure—authority ofthe Service.

(a) Authorized officers. The authoritycontained in section 240B(a) of the Actto permit aliens to depart voluntarilyfrom the United States may be exercisedin lieu of being subject to proceedingsunder section 240 of the Act by districtdirectors, assistant district directors forinvestigations, assistant districtdirectors for examinations, officers incharge, chief patrol agents, servicecenter directors, and assistant centerdirectors for examinations.

(b) Conditions. The Service mayattach to the granting of voluntarydeparture any conditions it deemsnecessary to ensure the alien’s timelydeparture from the United States,including the posting of a bond,continued detention pending departure,and removal under safeguards. Thealien shall be required to present to theService, for inspection andphotocopying, his or her passport orother travel documentation sufficient toassure lawful entry into the country towhich the alien is departing. TheService may hold the passport ordocumentation for sufficient time toinvestigate its authenticity. A voluntarydeparture order permitting an alien todepart voluntarily shall inform the alienof the penalties under section 240B(d) ofthe Act.

(c) Decision. The authorized officer, inhis or her discretion, shall specify theperiod of time permitted for voluntarydeparture, and may grant extensionsthereof, except that the total periodallowed, including any extensions, shallnot exceed 120 days. Every decisionregarding voluntary departure shall becommunicated in writing on Form I–210, Notice of Action—VoluntaryDeparture. Voluntary departure may notbe granted unless the alien requestssuch voluntary departure and agrees toits terms and conditions.

(d) Application. Any alien whobelieves himself or herself to be eligible


for voluntary departure under thissection may apply therefor at any officeof the Service. After the commencementof removal proceedings, the applicationmay be communicated through theService counsel. If the Service agrees tovoluntary departure after proceedingshave commenced, it may either:

(1) Join in a motion to terminate theproceedings, and if the proceedings areterminated, grant voluntary departure;or

(2) Join in a motion asking theimmigration judge to permit voluntarydeparture in accordance with § 240.26.

(e) Appeals. An appeal shall not liefrom a denial of an application forvoluntary departure under this section,but the denial shall be withoutprejudice to the alien’s right to apply tothe immigration judge for voluntarydeparture in accordance with § 240.26or for relief from removal under anyprovision of law.

(f) Revocation. If, subsequent to thegranting of an application for voluntarydeparture under this section, it isascertained that the application shouldnot have been granted, that grant may berevoked without advance notice by anyofficer authorized to grant voluntarydeparture under § 240.25(a). Suchrevocation shall be communicated inwriting, citing the statutory basis forrevocation. No appeal shall lie fromrevocation.

§ 240.26 Voluntary departure—authority ofthe Executive Office for ImmigrationReview.

(a) Eligibility: general. An alienpreviously granted voluntary departureunder section 240B of the Act, includingby the Service under § 240.25, and whofails to depart voluntarily within thetime specified, shall thereafter beineligible, for a period of ten years, forvoluntary departure or for relief undersections 240A, 245, 248, and 249 of theAct.

(b) Prior to completion of removalproceedings.—(1) Grant by theimmigration judge. (i) An alien may begranted voluntary departure by animmigration judge pursuant to section240B(a) of the Act only if the alien:

(A) Makes such request prior to or atthe master calendar hearing at whichthe case is initially calendared for amerits hearing;

(B) Makes no additional requests forrelief (or if such requests have beenmade, such requests are withdrawnprior to any grant of voluntary departurepursuant to this section);

(C) Concedes removability;(D) Waives appeal of all issues; and(E) Has not been convicted of a crime

described in section 101(a)(43) of the

Act and is not deportable under section237(a)(4).

(ii) The judge may not grant voluntarydeparture under section 240B(a) of theAct beyond 30 days after the mastercalendar hearing at which the case isinitially calendared for a merits hearing,except pursuant to a stipulation underparagraph (b)(2) of this section.

(2) Stipulation. At any time prior tothe completion of removal proceedings,the Service counsel may stipulate to agrant of voluntary departure undersection 240B(a) of the Act.

(3) Conditions. (i) The judge mayimpose such conditions as he or shedeems necessary to ensure the alien’stimely departure from the United States,including the posting of a voluntarydeparture bond to be canceled uponproof that the alien has departed theUnited States within the time specified.The alien shall be required to present tothe Service, for inspection andphotocopying, his or her passport orother travel documentation sufficient toassure lawful entry into the country towhich the alien is departing, unless:

(A) A travel document is notnecessary to return to his or her nativecountry or to which country the alien isdeparting; or

(B) The document is already in thepossession of the Service.

(ii) The Service may hold the passportor documentation for sufficient time toinvestigate its authenticity. If suchdocumentation is not immediatelyavailable to the alien, but theimmigration judge is satisfied that thealien is making diligent efforts to secureit, voluntary departure may be grantedfor a period not to exceed 120 days,subject to the condition that the alienwithin 60 days must secure suchdocumentation and present it to theService. The Service in its discretionmay extend the period within which thealien must provide such documentation.If the documentation is not presentedwithin the 60-day period or anyextension thereof, the voluntarydeparture order shall vacateautomatically and the alternate order ofremoval will take effect, as if in effecton the date of issuance of theimmigration judge order.

(c) At the conclusion of the removalproceedings.—(1) Required findings. Animmigration judge may grant voluntarydeparture at the conclusion of theremoval proceedings under section240B(b) of the Act, if he or she findsthat:

(i) The alien has been physicallypresent in the United States for periodof at least one year preceding the datethe Notice to Appear was served undersection 239(a) of the Act;

(ii) The alien is, and has been, aperson of good moral character for atleast five years immediately precedingthe application;

(iii) The alien has not been convictedof a crime described in section101(a)(43) of the Act and is notdeportable under section 237(a)(4); and

(iv) The alien has established by clearand convincing evidence that the alienhas the means to depart the UnitedStates and has the intention to do so.

(2) Travel documentation. Except asotherwise provided in paragraph (b)(3)of this section, the clear and convincingevidence of the means to depart shallinclude in all cases presentation by thealien of a passport or other traveldocumentation sufficient to assurelawful entry into the country to whichthe alien is departing. The Service shallhave full opportunity to inspect andphotocopy the documentation, and tochallenge its authenticity or sufficiencybefore voluntary departure is granted.

(3) Conditions. The judge may imposesuch conditions as he or she deemsnecessary to ensure the alien’s timelydeparture from the United States. In allcases under section 240B(b) of the Act,the alien shall be required to post avoluntary departure bond, in an amountnecessary to ensure that the aliendeparts within the time specified, but inno case less than $500. The voluntarydeparture bond shall be posted with thedistrict director within 5 business daysof the immigration judge’s ordergranting voluntary departure, and thedistrict director may, at his or herdiscretion, hold the alien in custodyuntil the bond is posted. If the bond isnot posted within 5 business days, thevoluntary departure order shall vacateautomatically and the alternate order ofremoval will take effect on the followingday. In order for the bond to becanceled, the alien must provide proofof departure to the district director.

(d) Alternate order of removal. Upongranting a request made for voluntarydeparture either prior to the completionof proceedings or at the conclusion ofproceedings, the immigration judgeshall also enter an alternate order orremoval.

(e) Periods of time. If voluntarydeparture is granted prior to thecompletion of removal proceedings, theimmigration judge may grant a periodnot to exceed 120 days. If voluntarydeparture is granted at the conclusion ofproceedings, the immigration judge maygrant a period not to exceed 60 days.

(f) Extension of time to depart.Authority to extend the time withinwhich to depart voluntarily specifiedinitially by an immigration judge or theBoard is within the sole jurisdiction of


the district director. An immigrationjudge or the Board may reinstatevoluntary departure in a removalproceeding that has been reopened for apurpose other than solely making anapplication for voluntary departure ifreopening was granted prior to theexpiration of the original period ofvoluntary departure. In no event can thetotal period of time, including anyextension, exceed 120 days or 60 daysas set forth in section 240B of the Act.

(g) Administrative Appeals. No appealshall lie regarding the length of a periodof voluntary departure (as distinguishedfrom issues of whether to grantvoluntary departure).

(h) Reinstatement of voluntarydeparture. An immigration judge or theBoard may reinstate voluntary departurein a removal proceeding that has beenreopened for a purpose other than solelymaking application for voluntarydeparture, if reopening was grantedprior to the expiration of the originalperiod of voluntary departure. In noevent can the total period of time,including any extension, exceed 120days or 60 days as set forth in section240B of the Act and paragraph (a) of thissection.

§§ 240.27–240.29 [Reserved]

Subpart D—Exclusion of Aliens (forproceedings commenced prior to April1, 1997)

§ 240.30 Proceedings prior to April 1, 1997.Subpart D of 8 CFR part 240 applies

to exclusion proceedings commencedprior to April 1, 1997, pursuant to theformer section 236 of the Act. Anexclusion proceeding is commenced bythe filing of Form I–122 with theImmigration Court, and an alien isconsidered to be in exclusionproceedings only upon such filing. Allreferences to the Act contained in thissubpart are references to the Act ineffect prior to April 1, 1997.

§ 240.31 Authority of immigration judges.In determining cases referred for

further inquiry as provided in section235 of the Act, immigration judges shallhave the powers and authority conferredupon them by the Act and this chapter.Subject to any specific limitationprescribed by the Act and this chapter,immigration judges shall also exercisethe discretion and authority conferredupon the Attorney General by the Act asis appropriate and necessary for thedisposition of such cases.

§ 240.32 Hearing.(a) Opening. Exclusion hearings shall

be closed to the public, unless the alienat his or her own instance requests that

the public, including the press, bepermitted to attend; in that event, thehearing shall be open, provided that thealien states for the record that he or sheis waiving the requirement in section236 of the Act that the inquiry shall bekept separate and apart from the public.When the hearing is to be open,depending upon physical facilities,reasonable limitation may be placedupon the number in attendance at anyone time, with priority being given tothe press over the general public. Theimmigration judge shall ascertainwhether the applicant for admission isthe person to whom Form I–122 waspreviously delivered by the examiningimmigration officer as provided in 8CFR part 235; enter a copy of such formin evidence as an exhibit in the case;inform the applicant of the nature andpurpose of the hearing; advise him orher of the privilege of being representedby an attorney of his or her own choiceat no expense to the Government, andof the availability of free legal servicesprograms qualified under 8 CFR part 3and organizations recognized pursuantto § 292.2 of this chapter located in thedistrict where his or her exclusionhearing is to be held; and shall ascertainthat the applicant has received a list ofsuch programs; and request him or herto ascertain then and there whether heor she desires representation; advisehim or her that he or she will have areasonable opportunity to presentevidence in his or her own behalf, toexamine and object to evidence againsthim or her, and to cross-examinewitnesses presented by the Government;and place the applicant under oath.

(b) Procedure. The immigration judgeshall receive and adduce material andrelevant evidence, rule upon objections,and otherwise regulate the course of thehearing.

(c) Attorney for the Service. TheService shall assign an attorney to eachcase in which an applicant’s nationalityis in issue and may assign an attorneyto any case in which such assignment isdeemed necessary or advantageous. Theduties of the Service counsel include,but are not limited to, the presentationof evidence and the interrogation,examination, and cross-examination ofthe applicant and other witnesses.Nothing contained in this sectiondiminishes the authority of animmigration judge to conductproceedings under this part.

(d) Depositions. The proceduresspecified in § 240.48(e) shall apply.

(e) Record. The hearing before theimmigration judge, including thetestimony, exhibits, applications,proffers, and requests, the immigrationjudge’s decision, and all written orders,

motions, appeals, and other papers filedin the proceeding shall constitute therecord in the case. The hearing shall berecorded verbatim except for statementsmade off the record with the permissionof the immigration judge.

§ 240.33 Applications for asylum orwithholding of deportation.

(a) If the alien expresses fear ofpersecution or harm upon return to hisor her country of origin or to a countryto which the alien may be deported aftera determination of excludability fromthe United States pursuant to thissubpart, and the alien has not beenreferred to the immigration judge by anasylum officer in accordance with§ 208.14(b) of this chapter, theimmigration judge shall:

(1) Advise the alien that he or shemay apply for asylum in the UnitedStates or withholding of deportation tothat other country; and

(2) Make available the appropriateapplication forms.

(b) An application for asylum orwithholding of deportation must befiled with the Immigration Court,pursuant to § 208.4(c) of this chapter.Upon receipt of an application that hasnot been referred by an asylum officer,the Immigration Court shall forward acopy to the Department of Statepursuant to § 208.11 of this chapter andshall calendar the case for a hearing.The reply, if any, from the Departmentof State, unless classified under theapplicable Executive Order, shall begiven to both the applicant and to theService counsel representing thegovernment.

(c) Applications for asylum orwithholding of deportation so filed willbe decided by the immigration judgepursuant to the requirements andstandards established in 8 CFR part 208after an evidentiary hearing that isnecessary to resolve material factualissues in dispute. An evidentiaryhearing extending beyond issues relatedto the basis for a mandatory denial ofthe application pursuant to § 208.13(c)of this chapter is not necessary once theimmigration judge has determined thatsuch denial is required.

(1) Evidentiary hearings onapplications for asylum or withholdingof deportation will be closed to thepublic unless the applicant expresslyrequests that it be open pursuant to§ 236.3 of this chapter.

(2) Nothing in this section is intendedto limit the authority of the immigrationjudge properly to control the scope ofany evidentiary hearing.

(3) During the exclusion hearing, theapplicant shall be examined under oathon his or her application and may


present evidence and witnesses on hisor her own behalf. The applicant has theburden of establishing that he or she isa refugee as defined in section101(a)(42) of the Act pursuant to thestandard set forth in § 208.13 of thischapter.

(4) The Service counsel for thegovernment may call witnesses andpresent evidence for the record,including information classified underthe applicable Executive Order,provided the immigration judge or theBoard has determined that suchinformation is relevant to the hearing.The applicant shall be informed whenthe immigration judge receives suchclassified information. The agency thatprovides the classified information tothe immigration judge may provide anunclassified summary of theinformation for release to the applicantwhenever it determines it can do soconsistently with safeguarding both theclassified nature of the information andits source. The summary should be asdetailed as possible, in order that theapplicant may have an opportunity tooffer opposing evidence. A decisionbased in whole or in part on suchclassified information shall state thatsuch information is material to thedecision.

(d) The decision of an immigrationjudge to grant or deny asylum orwithholding of deportation shall becommunicated to the applicant and tothe Service counsel for the government.An adverse decision will state whyasylum or withholding of deportationwas denied.

§ 240.34 Renewal of application foradjustment of status under section 245 ofthe Act.

An adjustment application by an alienparoled under section 212(d)(5) of theAct, which has been denied by thedistrict director, may be renewed inexclusion proceedings under section236 of the Act (as in effect prior to April1, 1997) before an immigration judgeunder the following two conditions:first, the denied application must havebeen properly filed subsequent to theapplicant’s earlier inspection andadmission to the United States; andsecond, the applicant’s later absencefrom and return to the United Statesmust have been under the terms of anadvance parole authorization on FormI–512 granted to permit the applicant’sabsence and return to pursue thepreviously filed adjustment application.

§ 240.35 Decision of the immigrationjudge; notice to the applicant.

(a) Decision. The immigration judgeshall inform the applicant of his or her

decision in accordance with § 3.37 ofthis chapter.

(b) Advice to alien ordered excluded.An alien ordered excluded shall befurnished with Form I–296, Notice toAlien Ordered Excluded by ImmigrationJudge, at the time of an oral decision bythe immigration judge or upon serviceof a written decision.

(c) Holders of refugee traveldocuments. Aliens who are the holdersof valid unexpired refugee traveldocuments may be ordered excludedonly if they are found to be inadmissibleunder section 212(a)(2), 212(a)(3), or212(a)(6)(E) of the Act, and it isdetermined that on the basis of the actsfor which they are inadmissible thereare compelling reasons of nationalsecurity or public order for theirexclusion. If the immigration judgefinds that the alien is inadmissible butdetermines that there are no compellingreasons of national security or publicorder for exclusion, the immigrationjudge shall remand the case to thedistrict director for parole.

§ 240.36 Finality of order.The decision of the immigration judge

shall become final in accordance with§ 3.37 of this chapter.

§ 240.37 Appeals.Except for temporary exclusions

under section 235(c) of the Act, anappeal from a decision of anImmigration Judge under this part maybe taken by either party pursuant to§ 3.38 of this chapter.

§ 240.38 Fingerprinting of excluded aliens.Every alien 14 years of age or older

who is excluded from admission to theUnited States by an immigration judgeshall be fingerprinted, unless during thepreceding year he or she has beenfingerprinted at an American consularoffice.

§ 240.39 [Reserved]

Subpart E—Proceedings to DetermineDeportability of Aliens in the UnitedStates: Hearing and Appeal (forproceedings commenced prior to April1, 1997)

§ 240.40 Proceedings commenced prior toApril 1, 1997.

Subpart E of 8 CFR part 240 appliesonly to deportation proceedingscommenced prior to April 1, 1997. Adeportation proceeding is commencedby the filing of Form I–221 (Order toShow Cause) with the ImmigrationCourt, and an alien is considered to bein deportation proceedings only uponsuch filing, except in the case of analien admitted to the United States

under the provisions of section 217 ofthe Act. All references to the Actcontained in this subpart pertain to theAct as in effect prior to April 1, 1997.

§ 240.41 Immigration judges.

(a) Authority. In any proceedingconducted under this part theimmigration judge shall have theauthority to determine deportability andto make decisions, including orders ofdeportation, as provided by section242(b) and 242B of the Act; to reinstateorders of deportation as provided bysection 242(f) of the Act; to determineapplications under sections 208, 212(k),241(a)(1)(E)(iii), 241(a)(1)(H), 244, 245and 249 of the Act; to determine thecountry to which an alien’s deportationwill be directed in accordance withsection 243(a) of the Act; to ordertemporary withholding of deportationpursuant to section 243(h) of the Act;and to take any other action consistentwith applicable law and regulations asmay be appropriate. An immigrationjudge may certify his or her decision inany case to the Board of ImmigrationAppeals when it involves an unusuallycomplex or novel question of law orfact. Nothing contained in this part shallbe construed to diminish the authorityconferred on immigration judges undersection 103 of the Act.

(b) Withdrawal and substitution ofimmigration judges. The immigrationjudge assigned to conduct the hearingshall at any time withdraw if he or shedeems himself or herself disqualified. Ifan immigration judge becomesunavailable to complete his or herduties within a reasonable time, or if atany time the respondent consents to asubstitution, another immigration judgemay be assigned to complete the case.The new immigration judge shallfamiliarize himself or herself with therecord in the case and shall state for therecord that he or she has done so.

§ 240.42 Representation by counsel.

The respondent may be represented atthe hearing by an attorney or otherrepresentative qualified under 8 CFRpart 292.

§ 240.43 Incompetent respondents.

When it is impracticable for therespondent to be present at the hearingbecause of mental incompetency, theguardian, near relative, or friend whowas served with a copy of the order toshow cause shall be permitted to appearon behalf of the respondent. If such aperson cannot reasonably be found orfails or refuses to appear, the custodianof the respondent shall be requested toappear on behalf of the respondent.


§ 240.44 Interpreter.

Any person acting as interpreter in ahearing before an immigration judgeunder this part shall be sworn tointerpret and translate accurately,unless the interpreter is an employee ofthe United States Government, in whichevent no such oath shall be required.

§ 240.45 Postponement and adjournmentof hearing.

After the commencement of thehearing, the immigration judge maygrant a reasonable adjournment either athis or her own instance or, for goodcause shown, upon application by therespondent or the Service.

§ 240.46 Evidence.

(a) Sufficiency. A determination ofdeportability shall not be valid unless itis found by clear, unequivocal, andconvincing evidence that the factsalleged as grounds for deportation aretrue.

(b) Use of prior statements. Theimmigration judge may receive inevidence any oral or written statementthat is material and relevant to any issuein the case previously made by therespondent or any other person duringany investigation, examination, hearing,or trial.

(c) Testimony. Testimony of witnessesappearing at the hearing shall be underoath or affirmation administered by theimmigration judge.

(d) Depositions. The immigrationjudge may order the taking ofdepositions pursuant to § 3.35 of thischapter.

§ 240.47 Contents of record.

The hearing before the immigrationjudge, including the testimony, exhibits,applications, proffers, and requests, theimmigration judge’s decision, and allwritten orders, motions, appeals, briefs,and other papers filed in theproceedings shall constitute the recordin the case. The hearing shall berecorded verbatim except for statementsmade off the record with the permissionof the immigration judge. In his or herdiscretion, the immigration judge mayexclude from the record any argumentsmade in connection with motions,applications, requests, or objections, butin such event the person affected maysubmit a brief.

§ 240.48 Hearing.

(a) Opening. The immigration judgeshall advise the respondent of his or herright to representation, at no expense tothe Government, by counsel of his orher own choice authorized to practice inthe proceedings and require him or herto state then and there whether he or

she desires representation; advise therespondent of the availability of freelegal services programs qualified under8 CFR part 3 and organizationsrecognized pursuant to § 292.2 of thischapter, located in the district where thedeportation hearing is being held;ascertain that the respondent hasreceived a list of such programs, and acopy of Form I–618, Written Notice ofAppeal Rights; advise the respondentthat he or she will have a reasonableopportunity to examine and object tothe evidence against him or her, topresent evidence in his or her ownbehalf and to cross-examine witnessespresented by the Government; place therespondent under oath; read the factualallegations and the charges in the orderto show cause to the respondent andexplain them in nontechnical language,and enter the order to show cause as anexhibit in the record. Deportationhearings shall be open to the public,except that the immigration judge may,in his or her discretion and for thepurpose of protecting witnesses,respondents, or the public interest,direct that the general public orparticular individuals shall be excludedfrom the hearing in any specific case.Depending upon physical facilities,reasonable limitation may be placedupon the number in attendance at anyone time, with priority being given tothe press over the general public.

(b) Pleading by respondent. Theimmigration judge shall require therespondent to plead to the order to showcause by stating whether he or sheadmits or denies the factual allegationsand his or her deportability under thecharges contained therein. If therespondent admits the factualallegations and admits his or herdeportability under the charges and theimmigration judge is satisfied that noissues of law or fact remain, theimmigration judge may determine thatdeportability as charged has beenestablished by the admissions of therespondent. The immigration judgeshall not accept an admission ofdeportability from an unrepresentedrespondent who is incompetent orunder age 16 and is not accompanied bya guardian, relative, or friend; nor froman officer of an institution in which arespondent is an inmate or patient.When, pursuant to this paragraph, theimmigration judge may not accept anadmission of deportability, he or sheshall direct a hearing on the issues.

(c) Issues of deportability. Whendeportability is not determined underthe provisions of paragraph (b) of thissection, the immigration judge shallrequest the assignment of a Servicecounsel, and shall receive evidence as to

any unresolved issues, except that nofurther evidence need be received as toany facts admitted during the pleading.The respondent shall provide a courtcertified copy of a JudicialRecommendation Against Deportation(JRAD) to the immigration judge whensuch recommendation will be the basisof denying any charge(s) brought by theService in the proceedings against therespondent. No JRAD is effective againsta charge of deportability under section241(a)(11) of the Act or if the JRAD wasgranted on or after November 29, 1990.

(d) Additional charges. The Servicemay at any time during a hearing lodgeadditional charges of deportability,including factual allegations, against therespondent. Copies of the additionalfactual allegations and charges shall besubmitted in writing for service on therespondent and entry as an exhibit inthe record. The immigration judge shallread the additional factual allegationsand charges to the respondent andexplain them to him or her. Theimmigration judge shall advise therespondent if he or she is notrepresented by counsel that he or shemay be so represented and also that heor she may have a reasonable timewithin which to meet the additionalfactual allegations and charges. Therespondent shall be required to statethen and there whether he or she desiresa continuance for either of thesereasons. Thereafter, the provisions ofparagraph (b) of this section shall applyto the additional factual allegations andlodged charges.

§ 240.49 Ancillary matters, applications.(a) Creation of the status of an alien

lawfully admitted for permanentresidence. The respondent may apply tothe immigration judge for suspension ofdeportation under section 244(a) of theAct; for adjustment of status undersection 245 of the Act, or under section1 of the Act of November 2, 1966, orunder section 101 or 104 of the Act ofOctober 28, 1977; or for the creation ofa record of lawful admission forpermanent residence under section 249of the Act. The application shall besubject to the requirements of 8 CFRparts 240, 245, and 249. The approval ofany application made to theimmigration judge under section 245 ofthe Act by an alien spouse (as definedin section 216(g)(1) of the Act) or by analien entrepreneur (as defined in section216A(f)(1) of the Act), shall result in thealien’s obtaining the status of lawfulpermanent resident on a conditionalbasis in accordance with the provisionsof section 216 or 216A of the Act,whichever is applicable. However, thePetition to Remove the Conditions on


Residence required by section 216(c) ofthe Act or the Petition by Entrepreneurto Remove Conditions required bysection 216A(c) of the Act shall be madeto the director in accordance with 8 CFRpart 216. In conjunction with anyapplication for creation of status of analien lawfully admitted for permanentresidence made to an immigrationjudge, if the respondent is inadmissibleunder any provision of section 212(a) ofthe Act and believes that he or shemeets the eligibility requirements for awaiver of the ground of inadmissibility,he or she may apply to the immigrationjudge for such waiver. The immigrationjudge shall inform the respondent of hisor her apparent eligibility to apply forany of the benefits enumerated in thisparagraph and shall afford therespondent an opportunity to makeapplication therefor during the hearing.In exercising discretionary power whenconsidering an application under thisparagraph, the immigration judge mayconsider and base the decision oninformation not contained in the recordand not made available for inspectionby the respondent, provided theCommissioner has determined that suchinformation is relevant and is classifiedunder the applicable Executive Order asrequiring protection from unauthorizeddisclosure in the interest of nationalsecurity. Whenever the immigrationjudge believes that he or she can do sowhile safeguarding both the informationand its source, the immigration judgeshould inform the respondent of thegeneral nature of the information inorder that the respondent may have anopportunity to offer opposing evidence.A decision based in whole or in part onsuch classified information shall statethat the information is material to thedecision.

(b) Voluntary departure. Therespondent may apply to theimmigration judge for voluntarydeparture in lieu of deportationpursuant to section 244(e) of the Actand § 240.56.

(c) Applications for asylum orwithholding of deportation. (1) Theimmigration judge shall notify therespondent that if he or she is finallyordered deported, his or her deportationwill in the first instance be directedpursuant to section 243(a) of the Act tothe country designated by therespondent and shall afford him or heran opportunity then and there to makesuch designation. The immigrationjudge shall then specify and state for therecord the country, or countries in thealternative, to which respondent’sdeportation will be directed pursuant tosection 243(a) of the Act if the countryof his or her designation will not accept

him or her into its territory, or fails tofurnish timely notice of acceptance, orif the respondent declines to designatea country.

(2) If the alien expresses fear ofpersecution or harm upon return to anyof the countries to which the alienmight be deported pursuant toparagraph (c)(1) of this section, and thealien has not previously filed anapplication for asylum or withholdingof deportation that has been referred tothe immigration judge by an asylumofficer in accordance with § 208.14(b) ofthis chapter, the immigration judgeshall:

(i) Advise the alien that he or she mayapply for asylum in the United States orwithholding of deportation to thosecountries; and

(ii) Make available the appropriateapplication forms.

(3) An application for asylum orwithholding of deportation must befiled with the Immigration Court,pursuant to § 208.4(b) of this chapter.Upon receipt of an application that hasnot been referred by an asylum officer,the Immigration Court shall forward acopy to the Department of Statepursuant to § 208.11 of this chapter andshall calendar the case for a hearing.The reply, if any, of the Department ofState, unless classified under theapplicable Executive Order, shall begiven to both the applicant and to theService counsel representing thegovernment.

(4) Applications for asylum orwithholding of deportation so filed willbe decided by the immigration judgepursuant to the requirements andstandards established in 8 CFR part 208after an evidentiary hearing that isnecessary to resolve factual issues indispute. An evidentiary hearingextending beyond issues related to thebasis for a mandatory denial of theapplication pursuant to § 208.13 or§ 208.16 of this chapter is not necessaryonce the immigration judge hasdetermined that such a denial isrequired.

(i) Evidentiary hearings onapplications for asylum or withholdingof deportation will be open to the publicunless the applicant expressly requeststhat it be closed.

(ii) Nothing in this section is intendedto limit the authority of the immigrationjudge properly to control the scope ofany evidentiary hearing.

(iii) During the deportation hearing,the applicant shall be examined underoath on his or her application and maypresent evidence and witnesses in his orher own behalf. The applicant has theburden of establishing that he or she isa refugee as defined in section

101(a)(42) of the Act pursuant to thestandard set forth in § 208.13 of thischapter.

(iv) The Service counsel for thegovernment may call witnesses andpresent evidence for the record,including information classified underthe applicable Executive Order,provided the immigration judge or theBoard has determined that suchinformation is relevant to the hearing.When the immigration judge receivessuch classified information he or sheshall inform the applicant. The agencythat provides the classified informationto the immigration judge may providean unclassified summary of theinformation for release to the applicant,whenever it determines it can do soconsistently with safeguarding both theclassified nature of the information andits source. The summary should be asdetailed as possible, in order that theapplicant may have an opportunity tooffer opposing evidence. A decisionbased in whole or in part on suchclassified information shall statewhether such information is material tothe decision.

(5) The decision of an immigrationjudge to grant or deny asylum orwithholding of deportation shall becommunicated to the applicant and tothe Service counsel for the government.An adverse decision will state whyasylum or withholding of deportationwas denied.

(d) Application for relief undersections 241(a)(1)(H) and241(a)(1)(E)(iii) of the Act. Therespondent may apply to theimmigration judge for relief fromdeportation under sections 241(a)(1)(H)and 241(a)(1)(E)(iii) of the Act.

(e) General. An application under thissection shall be made only during thehearing and shall not be held toconstitute a concession of alienage ordeportability in any case in which therespondent does not admit his alienageor deportability. However, nothing inthis section shall prohibit the Servicefrom using information supplied in anapplication for asylum or withholdingof deportation submitted to an asylumofficer pursuant to § 208.2 of thischapter on or after January 4, 1995, asthe basis for issuance of an order toshow cause or a notice to appear toestablish alienage or deportability in acase referred to an immigration judgeunder § 208.14(b) of this chapter. Therespondent shall have the burden ofestablishing that he or she is eligible forany requested benefit or privilege andthat it should be granted in the exerciseof discretion. The respondent shall notbe required to pay a fee on more thanone application within paragraphs (a)


and (c) of this section, provided that theminimum fee imposed when more thanone application is made shall bedetermined by the cost of theapplication with the highest fee.Nothing contained in this section isintended to foreclose the respondentfrom applying for any benefit orprivilege which he or she believeshimself or herself eligible to receive inproceedings under this part.

§ 240.50 Decision of the immigrationjudge.

(a) Contents. The decision of theimmigration judge may be oral orwritten. Except when deportability isdetermined on the pleadings pursuantto § 240.48(b), the decision of theimmigration judge shall include afinding as to deportability. The formalenumeration of findings is not required.The decision shall also contain thereasons for granting or denying therequest. The decision shall beconcluded with the order of theimmigration judge.

(b) Summary decision.Notwithstanding the provisions ofparagraph (a) of this section, in any casewhere deportability is determined onthe pleadings pursuant to § 240.48(b)and the respondent does not make anapplication under § 240.49, or therespondent applies for voluntarydeparture only and the immigrationjudge grants the application, theimmigration judge may enter a summarydecision on Form EOIR–7, SummaryOrder of Deportation, if deportation isordered, or on Form EOIR–6, SummaryOrder of Voluntary Departure, ifvoluntary departure is granted with analternate order of deportation.

(c) Order of the immigration judge.The order of the immigration judge shalldirect the respondent’s deportation, orthe termination of the proceedings, orsuch other disposition of the case asmay be appropriate. When deportationis ordered, the immigration judge shallspecify the country, or countries in thealternate, to which respondent’sdeportation shall be directed. Theimmigration judge is authorized to issueorders in the alternative or incombination as he or she may deemnecessary.

§ 240.51 Notice of decision.(a) Written decision. A written

decision shall be served upon therespondent and the Service counsel,together with the notice referred to in§ 3.3 of this chapter. Service by mail iscomplete upon mailing.

(b) Oral decision. An oral decisionshall be stated by the immigration judgein the presence of the respondent and

the trail attorney, if any, at theconclusion of the hearing. Unless appealfrom the decision is waived, therespondent shall be furnished withForm EOIR–26, Notice of Appeal, andadvised of the provisions of § 240.53. Aprinted copy of the oral decision shallbe furnished at the request of therespondent or the Service counsel.

(c) Summary decision. When theimmigration judge renders a summarydecision as provided in § 240.51(b), heor she shall serve a copy thereof uponthe respondent at the conclusion of thehearing. Unless appeal from thedecision is waived, the respondent shallbe furnished with Form EOIR–26,Notice of Appeal, and advised of theprovisions of § 240.54.

§ 240.52 Finality of order.

The decision of the immigration judgeshall become final in accordance with§ 3.39 of this chapter.

§ 240.53 Appeals.

(a) Pursuant to 8 CFR part 3, anappeal shall lie from a decision of animmigration judge to the Board, exceptthat no appeal shall lie from an order ofdeportation entered in absentia. Theprocedures regarding the filing of aForm EOIR–26, Notice of Appeal, fees,and briefs are set forth in §§ 3.3, 3.31,and 3.38 of this chapter. An appeal shallbe filed within 30 calendar days afterthe mailing of a written decision, thestating of an oral decision, or the serviceof a summary decision. The filing dateis defined as the date of receipt of theNotice of Appeal by the Board. Thereasons for the appeal shall be stated inthe Form EOIR–26, Notice of Appeal, inaccordance with the provisions of§ 3.3(b) of this chapter. Failure to do somay constitute a ground for dismissal ofthe appeal by the Board pursuant to§ 3.1(d)(1-a) of this chapter.

(b) Prohibited appeals; legalization orapplications. An alien respondentdefined in § 245a.2(c)(6) or (7) of thischapter who fails to file an applicationfor adjustment of status to that of atemporary resident within theprescribed period(s), and who isthereafter found to be deportable bydecision of an immigration judge, shallnot be permitted to appeal the findingof deportability based solely on refusalby the immigration judge to entertainsuch an application in deportationproceedings.

§ 240.54 [Reserved]

Subpart F—Suspension of Deportationand Voluntary Departure (forproceedings commenced prior to April1, 1997)


Subpart F of 8 CFR part 240 appliesto deportation proceedings commencedprior to April 1, 1997. A deportationproceeding is commenced by the filingof Form I–221 (Order to Show Cause)with the Immigration Court, and analien is considered to be in deportationproceedings only upon such filing,except in the case of an alien admittedto the United States under theprovisions of section 217 of the Act. Allreferences to the Act contained in thissubpart are references to the Act ineffect prior to April 1, 1997.

§ 240.56 Application.Notwithstanding any other provision

of this chapter, an alien who isdeportable because of a conviction on orafter November 18, 1988, for anaggravated felony as defined in section101(a)(43) of the Act, shall not beeligible for voluntary departure asprescribed in 8 CFR part 240 andsection 244 of the Act. Pursuant tosubpart F of this part and section 244 ofthe Act, an immigration judge mayauthorize the suspension of an alien’sdeportation; or, if the alien establishesthat he or she is willing and has theimmediate means with which to departpromptly from the United States, animmigration judge may authorize thealien to depart voluntarily from theUnited States in lieu of deportationwithin such time as may be specified bythe immigration judge when firstauthorizing voluntary departure, andunder such conditions as the districtdirector shall direct. An application forsuspension of deportation shall be madeon Form EOIR–40.

§ 240.57 Extension of time to depart.Authority to reinstate or extend the

time within which to depart voluntarilyspecified initially by an immigrationjudge or the Board is within the solejurisdiction of the district director,except that an immigration judge or theBoard may reinstate voluntary departurein a deportation proceeding that hasbeen reopened for a purpose other thansolely making an application forvoluntary departure. A request by analien for reinstatement or an extensionof time within which to departvoluntarily shall be filed with thedistrict director having jurisdiction overthe alien’s place of residence. Writtennotice of the district director’s decision


shall be served upon the alien and noappeal may be taken therefrom.

Subpart G—Civil Penalties for Failureto Depart [Reserved]


PART 241—APPREHENSION ANDDETENTION OF ALIENS ORDEREDREMOVED

Subpart A—Post-hearing Detention andRemoval

Sec.241.1 Final order of removal.241.2 Warrant of removal.241.3 Detention of aliens during removal

period.241.4 Continued detention beyond the

removal period.241.5 Conditions of release after removal

period.241.6 Administrative stay of removal.241.7 Self-removal.241.8 Reinstatement of removal orders.241.9 Notice to transportation line of alien’s

removal.241.10 Special care and attention of

removable aliens.241.11 Detention and removal of

stowaways.241.12 Nonapplication of costs of detention

and maintenance.241.13—241.19 [Reserved]

Subpart B—Deportation of Excluded Aliens(for hearings commenced prior to April 1,1997)


241.21 Stay of deportation of excludedalien.

241.22 Notice to surrender for deportation.241.23 Cost of maintenance not assessed.241.24 Notice to transportation line of

alien’s exclusion.241.25 Deportation.241.26—241.29 [Reserved]

Subpart C—Deportation of Aliens in theUnited States (for hearings commencedprior to April 1, 1997)


241.31 Final order of deportation.241.32 Warrant of deportation.241.33 Expulsion.

Authority: 8 U.S.C. 1103, 1223, 1227, 1251,1253, 1255, and 1330; 8 CFR part 2.

Subpart A—Post-hearing Detentionand Removal

§ 241.1 Final order of removal.

An order of removal made by theimmigration judge at the conclusion ofproceedings under section 240 of theAct shall become final:

(a) Upon dismissal of an appeal by theBoard of Immigration Appeals;

(b) Upon waiver of appeal by therespondent;

(c) Upon expiration of the timeallotted for an appeal if the respondentdoes not file an appeal within that time;

(d) If certified to the Board orAttorney General, upon the date of thesubsequent decision ordering removal;

(e) If an immigration judge orders analien removed in the alien’s absence,immediately upon entry of such order;or

(f) If an immigration judge issues analternate order of removal in connectionwith a grant of voluntary departure,upon overstay of the voluntarydeparture period except where therespondent has filed a timely appealwith the Board. In such a case, the ordershall become final upon an order ofremoval by the Board or the AttorneyGeneral, or upon overstay of anyvoluntary departure period granted orreinstated by the Board or the AttorneyGeneral.

§ 241.2 Warrant of removal.

(a) Issuance of a warrant of removal.A Form I–205, Warrant of Removal,based upon the final administrativeremoval order in the alien’s case shallbe issued by a district director. Thedistrict director shall exercise theauthority contained in section 241 of theAct to determine at whose expense thealien shall be removed and whether hisor her mental or physical conditionrequires personal care and attention enroute to his or her destination.

(b) Execution of the warrant ofremoval. Any officer authorized by§ 287.5(e) of this chapter to executeadministrative warrants of arrest mayexecute a warrant of removal.

§ 241.3 Detention of aliens during removalperiod.

(a) Assumption of custody. Once theremoval period defined in section241(a)(1) of the Act begins, an alien inthe United States will be taken intocustody pursuant to the warrant ofremoval.

(b) Cancellation of bond. Any bondpreviously posted will be canceledunless it has been breached or is subjectto being breached.

(c) Judicial stays. The filing of (orintention to file) a petition or action ina Federal court seeking review of theissuance or execution of an order ofremoval shall not delay execution of theWarrant of Removal except upon anaffirmative order of the court.

§ 241.4 Continued detention beyond theremoval period.

(a) Continuation of custody forinadmissible or criminal aliens. Thedistrict director may continue incustody any alien inadmissible under

section 212(a) of the Act or removableunder section 237(a)(1)(C), 237(a)(2), or237(a)(4) of the Act, or who presents asignificant risk of noncompliance withthe order of removal, beyond theremoval period, as necessary, untilremoval from the United States. If suchan alien demonstrates by clear andconvincing evidence that the releasewould not pose a danger to thecommunity or a significant flight risk,the district director may, in the exerciseof discretion, order the alien releasedfrom custody on such conditions as thedistrict director may prescribe,including bond in an amount sufficientto ensure the alien’s appearance forremoval. The district may consider, butis not limited to considering, thefollowing factors:

(1) The nature and seriousness of thealien’s criminal convictions;

(2) Other criminal history;(3) Sentence(s) imposed and time

actually served;(4) History of failures to appear for

court (defaults);(5) Probation history;(6) Disciplinary problems while

incarcerated;(7) Evidence of rehabilitative effort or

recidivism;(8) Equities in the United States; and(9) Prior immigration violations and

history.(b) Continuation of custody for other

aliens. Any alien removable under anysection of the Act other than section212(a), 237(a)(1)(C), 237(a)(2), or237(a)(4) may be detained beyond theremoval period, in the discretion of thedistrict director, unless the aliendemonstrates to the satisfaction of thedistrict director that he or she is likelyto comply with the removal order andis not a risk to the community.

§ 241.5 Conditions of release after removalperiod.

(a) Order of supervision. An alienreleased pursuant to § 241.4 shall bereleased pursuant to an order ofsupervision. A district director, actingdistrict director, deputy district director,assistant district director forinvestigations, assistant district directorfor detention and deportation, or officerin charge may issue an order ofsupervision on Form I–220B. The ordershall specify conditions of supervisionincluding, but not limited to, thefollowing:

(1) A requirement that the alien reportto a specified officer periodically andprovide relevant information under oathas directed;

(2) A requirement that the aliencontinue efforts to obtain a traveldocument and assist the Service inobtaining a travel document;


(3) A requirement that the alien reportas directed for a mental or physicalexamination or examinations as directedby the Service;

(4) A requirement that the alien obtainadvance approval of travel beyondpreviously specified times anddistances; and

(5) A requirement that the alienprovide the Service with written noticeof any change of address on Form AR–11 within ten days of the change.

(b) Posting of bond. An officerauthorized to issue an order ofsupervision may require the posting ofa bond in an amount determined by theofficer to be sufficient to ensurecompliance with the conditions of theorder, including surrender for removal.

(c) Employment authorization. Anofficer authorized to issue an order ofsupervision may, in his or herdiscretion, grant employmentauthorization to an alien released underan order of supervision if the officerspecifically finds that:

(1) The alien cannot be removedbecause no country will accept thealien; or

(2) The removal of the alien isimpracticable or contrary to publicinterest.

§ 241.6 Administrative stay of removal.Any request of an alien under a final

order of deportation or removal for astay of deportation or removal shall befiled on Form I–246, Stay of Removal,with the district director havingjurisdiction over the place where thealien is at the time of filing. The districtdirector, in his or her discretion and inconsideration of factors such as arelisted in § 212.5 of this chapter andsection 241(c) of the Act, may grant astay of removal or deportation for suchtime and under such conditions as he orshe may deem appropriate. Neither therequest nor the failure to receive noticeof disposition of the request shall delayremoval or relieve the alien from strictcompliance with any outstanding noticeto surrender for deportation or removal.Denial by the district director of arequest for a stay is not appealable, butsuch denial shall not preclude animmigration judge or the Board fromgranting a stay in connection with amotion to reopen or a motion toreconsider as provided in 8 CFR part 3.The Service shall take all reasonablesteps to comply with a stay granted byan immigration judge or the Board.However, such a stay shall cease to haveeffect if granted (or communicated) afterthe alien has been placed aboard anaircraft or other conveyance for removaland the normal boarding has beencompleted.

§ 241.7 Self-removal.A district director may permit an

alien ordered removed (including analien ordered excluded or deported inproceedings prior to April 1, 1997) todepart at his or her own expense to adestination of his or her own choice.Any alien who has departed from theUnited States while an order ofdeportation or removal is outstandingshall be considered to have beendeported, excluded and deported, orremoved, except that an alien whodeparted before the expiration of thevoluntary departure period granted inconnection with an alternate order ofdeportation or removal shall not beconsidered to have been so deported orremoved.

§ 241.8 Reinstatement of removal orders.(a) Applicability. An alien who

illegally reenters the United States afterhaving been removed, or havingdeparted voluntarily, while under anorder of exclusion, deportation, orremoval shall be removed from theUnited States by reinstating the priororder. The alien has no right to ahearing before an immigration judge insuch circumstances. In establishingwhether an alien is subject to thissection, the immigration officer shalldetermine the following:

(1) Whether the alien has been subjectto a prior order of removal. Theimmigration officer must obtain theprior order of exclusion, deportation, orremoval relating to the alien.

(2) The identity of the alien, i.e.,whether the alien is in fact an alien whowas previously removed, or whodeparted voluntarily while under anorder of exclusion, deportation, orremoval. In disputed cases, verificationof identity shall be accomplished by acomparison of fingerprints betweenthose of the previously excluded,deported, or removed alien contained inService records and those of the subjectalien. In the absence of fingerprints ina disputed case the alien shall not beremoved pursuant to this paragraph.

(3) Whether the alien unlawfullyreentered the United States. In makingthis determination, the officer shallconsider all relevant evidence,including statements made by the alienand any evidence in the alien’spossession. The immigration officershall attempt to verify an alien’s claim,if any, that he or she was lawfullyadmitted, which shall include a checkof Service data systems available to theofficer.

(b) Notice. If an officer determinesthat an alien is subject to removal underthis section, he or she shall provide thealien with written notice of his or her

determination. The officer shall advisethe alien that he or she may make awritten or oral statement contesting thedetermination. If the alien wishes tomake such a statement, the officer shallallow the alien to do so and shallconsider whether the alien’s statementwarrants reconsideration of thedetermination.

(c) Order. If the requirements ofparagraph (a) of this section are met, thealien shall be removed under theprevious order of exclusion,deportation, or removal in accordancewith section 241(a)(5) of the Act.

(d) Exception for withholding ofremoval. If an alien whose prior orderof removal has been reinstated underthis section expresses a fear of returningto the country designated in that order,the alien shall be immediately referredto an asylum officer to determinewhether the alien’s removal to thatcountry must be withheld under section241(b)(3) of the Act. The alien’s claimwill be granted or denied by an asylumofficer in accordance with § 208.16 ofthis chapter. If the alien has previouslyhad a claim to withholding ofdeportation or removal denied, then thatdecision shall prevail unless the aliencan establish the existence of changedcircumstances that materially affect thealien’s eligibility for withholding. Thealien’s case shall not be referred to animmigration judge, and there is noappeal from the decision of the asylumofficer. If the alien is found to meritwithholding of removal, the Serviceshall not enforce the reinstated order.

(e) Execution of reinstated order.Execution of the reinstated order ofremoval and detention of the alien shallbe administered in accordance with thispart.

§ 241.9 Notice to transportation line ofalien’s removal.

(a) An alien who has been orderedremoved shall, immediately or aspromptly as the circumstances permit,be offered for removal to the owner,agent, master, commanding officer,person in charge, purser, or consignee ofthe vessel or aircraft on which the alienis to be removed, as determined by thedistrict director, with a written noticespecifying the cause of inadmissibilityor deportability, the class of travel inwhich such alien arrived and is to beremoved, and with the return of anydocumentation that will assist ineffecting his or her removal. If specialcare and attention are required, theprovisions of § 241.10 shall apply.

(b) Failure of the carrier to accept forremoval an alien who has been orderedremoved shall result in the carrier beingassessed any costs incurred by the


Service for detention after the carrier’sfailure to accept the alien for removal,including the cost of any transportationas required under section 241(e) of theAct. The User Fee Account shall not beassessed for expenses incurred becauseof the carrier’s violation of theprovisions of section 241 of the Act andthis paragraph. The Service will, at thecarrier’s option, retain custody of thealien for an additional 7 days beyondthe date of the removal order. If, afterthe third day of this additional 7-dayperiod, the carrier has not made all thenecessary transportation arrangementsfor the alien to be returned to his or herpoint of embarkation by the end of theadditional 7-day period, the Service willmake the arrangements and bill thecarrier for its costs.

§ 241.10 Special care and attention ofremovable aliens.

When, in accordance with section241(c)(3) of the Act, a transportationline is responsible for the expenses of aninadmissible or deportable alien’sremoval, and the alien requires specialcare and attention, the alien shall bedelivered to the owner, agent, master,commanding officer, person in charge,purser, or consignee of the vessel oraircraft on which the alien will beremoved, who shall be given Forms I–287, I–287A, and I–287B. The reverse ofForm I–287A shall be signed by theofficer of the vessel or aircraft to whomthe alien has been delivered andimmediately returned to theimmigration officer effecting delivery.Form I–287B shall be retained by thereceiving officer and subsequently filledout by the agents or persons thereindesignated and returned by mail to thedistrict director named on the form. Thetransportation line shall at its ownexpense forward the alien from theforeign port of disembarkation to thefinal destination specified on Form I–287. The special care and attention shallbe continued to such final destination,except when the foreign public officersdecline to allow such attendant toproceed and they take charge of thealien, in which case this fact shall berecorded by the transportation line onthe reverse of Form I–287B. If thetransportation line fails, refuses, orneglects to provide the necessary specialcare and attention or comply with thedirections of Form I–287, the districtdirector shall thereafter and withoutnotice employ suitable persons, at theexpense of the transportation line, andeffect such removal.

§ 241.11 Detention and removal ofstowaways.

(a) Presentation of stowaways. Theowner, agent, master, commandingofficer, charterer, or consignee of avessel or aircraft (referred to in thissection as the carrier) bringing any alienstowaway to the United States isrequired to detain the stowaway onboard the vessel or aircraft, at theexpense of the owner of the vessel oraircraft, until completion of theinspection of the alien by animmigration officer. If detention onboard the vessel or aircraft pendinginspection is not possible, the carriershall advise the Service of this factwithout delay, and the Service mayauthorize that the carrier detain thestowaway at another designatedlocation, at the expense of the owner,until the immigration officer arrives. Nonotice to detain the alien shall berequired. Failure to detain an alienstowaway pending inspection shallresult in a civil penalty under section243(c)(1)(A) of the Act. The owner,agent, master, commanding officer,charterer, or consignee of a vessel oraircraft must present the stowaway forinspection, along with any documentsor evidence of identity or nationality inthe possession of the alien or obtainedby the carrier relating to the alienstowaway, and must provide anyavailable information concerning thealien’s boarding or apprehension.

(b) Removal of stowaways from vesselor aircraft for medical treatment. Thedistrict director may parole an alienstowaway into the United States formedical treatment, but the costs ofdetention and treatment of the alienstowaway shall be at the expense of theowner of the vessel or aircraft, and suchremoval of the stowaway from the vesselor aircraft does not relieve the carrier ofthe requirement to remove thestowaway from the United States oncesuch medical treatment has beencompleted.

(c) Repatriation of stowaways—(1)Requirements of carrier. Followinginspection, an immigration officer mayorder the owner, agent, master,commanding officer, charterer, orconsignee of a vessel or aircraft bringingany alien stowaway to the United Statesto remove the stowaway on the vessel oraircraft of arrival, unless it isimpracticable to do so or other factorsexist which would preclude removal onthe same vessel or aircraft. Such factorsmay include, but are not limited to,sanitation, health, and safety concernsfor the crew and/or stowaway, whetherthe stowaway is a female or a juvenile,loss of insurance coverage on account ofthe stowaway remaining aboard, need

for repairs to the vessel, and othersimilar circumstances. If the owner,agent, master, commanding officer,charterer, or consignee requests that heor she be allowed to remove thestowaway by other means, the Serviceshall favorably consider any suchrequest, provided the carrier hasobtained, or will obtain in a timelymanner, any necessary travel documentsand has made or will make alltransportation arrangements. Theowner, agent, master, commandingofficer, charterer, or consignee shalltransport the stowaway or arrange forsecure escort of the stowaway to thevessel or aircraft of departure to ensurethat the stowaway departs the UnitedStates. All expenses relating to removalshall be borne by the owner. Other thanrequiring compliance with the detentionand removal requirements contained insection 241(d)(2) of the Act, the Serviceshall not impose additional conditionson the carrier regarding securityarrangements. Failure to comply with anorder to remove an alien stowaway shallresult in a civil penalty under section243(c)(1)(A) of the Act.

(2) Detention of stowaways orderedremoved. If detention of the stowaway isrequired pending removal on other thanthe vessel or aircraft of arrival, or if thestowaway is to be removed on the vesselor aircraft of arrival but departure of thevessel or aircraft is not imminent andcircumstances preclude keeping thestowaway on board the vessel oraircraft, the Service shall take thestowaway into Service custody. Theowner is responsible for all costs ofmaintaining and detaining thestowaway pending removal, includingcosts for stowaways seeking asylum asdescribed in paragraph (d) of thissection. Such costs will be limited tothose normally incurred in thedetention of an alien by the Service,including, but not limited to, housing,food, transportation, medical expenses,and other reasonable costs incident tothe detention of the stowaway. TheService may require the posting of abond or other surety to ensure paymentof costs of detention.

(d) Stowaways claiming asylum—(1)Referral for credible fear determination.A stowaway who indicates an intentionto apply for asylum or a fear ofpersecution shall be removed from thevessel or aircraft of arrival in accordancewith § 208.5(b) of this chapter. Theimmigration officer shall refer the aliento an asylum officer for a determinationof credible fear in accordance withsection 235(b)(1)(B) of the Act and§ 208.30 of this chapter. The stowawayshall be detained in the custody of theService pending the credible fear


determination and any review thereof.Parole of such alien, in accordance withsection 212(d)(5) of the Act, may bepermitted only when the AttorneyGeneral determines, in the exercise ofdiscretion, that parole is required tomeet a medical emergency or isnecessary for a legitimate lawenforcement objective. A stowaway whohas established a credible fear ofpersecution in accordance with § 208.30of this chapter may be detained orparoled pursuant to § 212.5 of thischapter during any consideration of theasylum application. In determiningwhether to detain or parole the alien,the Service shall consider the likelihoodthat the alien will abscond or pose asecurity risk.

(2) Costs of detention of asylum-seeking stowaways. The owner of thevessel or aircraft that brought thestowaway to the United States shallreimburse the Service for the costs ofmaintaining and detaining thestowaway pending a determination ofcredible fear under section 235(b)(1)(B)of the Act, up to a maximum period of72 hours. The owner is also responsiblefor the costs of maintaining anddetaining the stowaway during theperiod in which the stowaway ispursuing his or her asylum application,for a maximum period of 15 workingdays, excluding Saturdays, Sundays,and holidays. The 15-day period shallbegin on the day following the day inwhich the alien is determined to havea credible fear of persecution by theasylum officer, or by the immigrationjudge if such review was requested bythe alien pursuant to section235(b)(1)(B)(iii)(III) of the Act, but notlater than 72 hours after the stowawaywas initially presented to the Service forinspection. Following the determinationof credible fear, if the stowaway’sapplication for asylum is notadjudicated within 15 working days, theService shall pay the costs of detentionbeyond this time period. If thestowaway is determined not to have acredible fear of persecution, or if thestowaway’s application for asylum isdenied, including any appeals, thecarrier shall be notified and shallarrange for repatriation of the stowawayat the expense of the owner of the vesselor aircraft on which the stowawayarrived.

§ 241.12 Nonapplication of costs ofdetention and maintenance.

The owner of a vessel or aircraftbringing an alien to the United Stateswho claims to be exempt from paymentof the costs of detention andmaintenance of the alien pursuant tosection 241(c)(3)(B) of the Act shall

establish to the satisfaction of thedistrict director in charge of the port ofarrival that such costs should not beapplied. The district director shallafford the owner a reasonable timewithin which to submit affidavits andbriefs to support the claim. There is noappeal from the decision of the districtdirector.

§§ 241.13—241.19 [Reserved]

Subpart B—Deportation of ExcludedAliens (for hearings commenced priorto April 1, 1997)


Subpart B of 8 CFR part 241 appliesto exclusion proceedings commencedprior to April 1, 1997. All references tothe Act contained in this subpart arereferences to the Act in effect prior toApril 1, 1997.

§ 241.21 Stay of deportation of excludedalien.

The district director in charge of theport of arrival may stay the immediatedeportation of an excluded alienpursuant to sections 237 (a) and (d) ofthe Act under such conditions as he orshe may prescribe.

§ 241.22 Notice to surrender fordeportation.

An alien who has been finallyexcluded pursuant to 8 CFR part 240,subpart D may at any time surrenderhimself or herself to the custody of theService and shall surrender to suchcustody upon notice in writing of thetime and place for his or her surrender.The Service may take the alien intocustody at any time. An alien taken intocustody either upon notice to surrenderor by arrest shall not be deported lessthan 72 hours thereafter without his orher consent thereto filed in writing withthe district director in charge of theplace of his or her detention. An alienin foreign contiguous territory shall beinformed that he or she may remainthere in lieu of surrendering to theService, but that he or she will bedeemed to have acknowledged theexecution of the order of exclusion anddeportation in his or her case upon hisor her failure to surrender at the timeand place prescribed.

§ 241.23 Cost of maintenance notassessed.

A claim pursuant to section 237(a)(1)of the Act shall be established to thesatisfaction of the district director incharge of the port of arrival, from whoseadverse decision no appeal shall lie.The district director shall afford the linea reasonable time within which to

submit affidavits and briefs to supportits claim.

§ 241.24 Notice to transportation line ofalien’s exclusion.

(a) An excluded alien shall,immediately or as promptly as thecircumstances permit, be offered fordeportation to the master, commandingofficer, purser, person in charge, agent,owner, or consignee of the vessel oraircraft on which the alien is to bedeported, as determined by the districtdirector, with a written noticespecifying the cause of exclusion, theclass of travel in which such alienarrived and is to be deported, and withthe return of any documentation thatwill assist in effecting his or herdeportation. If special care and attentionare required, the provisions of § 241.10shall apply.

(b) Failure of the carrier to accept forremoval an alien who has been orderedexcluded and deported shall result inthe carrier being assessed any costsincurred by the Service for detentionafter the carrier’s failure to accept thealien for removal including the cost ofany transportation. The User FeeAccount shall not be assessed forexpenses incurred because of thecarrier’s violation of the provisions ofsection 237 of the Act and thisparagraph. The Service will, at thecarrier’s option, retain custody of theexcluded alien for an additional 7 daysbeyond the date of the deportation/exclusion order. If, after the third day ofthis additional 7-day period, the carrierhas not made all the necessarytransportation arrangements for theexcluded alien to be returned to his orher point of embarkation by the end ofthe additional 7-day period, the Servicewill make the arrangements and bill thecarrier for its costs.

§ 241.25 Deportation.(a) Definitions of terms. For the

purposes of this section, the followingterms mean:

(1) Adjacent island—as defined insection 101(b)(5) of the Act.

(2) Foreign contiguous territory—anycountry sharing a common boundarywith the United States.

(3) Residence in foreign contiguousterritory or adjacent island—anyphysical presence, regardless of intent,in a foreign contiguous territory or anadjacent island if the government ofsuch territory or island agrees to acceptthe alien.

(4) Aircraft or vessel—any conveyanceand other mode of travel by whicharrival is effected.

(5) Next available flight—the carrier’snext regularly scheduled departure to


the excluded alien’s point ofembarkation regardless of seatavailability. If the carrier’s nextregularly scheduled departure to theexcluded aliens point of embarkation isfull, the carrier has the option ofarranging for return transportation onother carriers which service theexcluded aliens point of embarkation.

(b) Place to which deported. Any alien(other than an alien crewmember or analien who boarded an aircraft or vesselin foreign contiguous territory or anadjacent island) who is orderedexcluded shall be deported to thecountry where the alien boarded thevessel or aircraft on which the alienarrived in the United States. If thatcountry refuses to accept the alien, thealien shall be deported to:

(1) The country of which the alien isa subject, citizen, or national;

(2) The country where the alien wasborn;

(3) The country where the alien has aresidence; or

(4) Any country willing to accept thealien.

(c) Contiguous territory and adjacentislands. Any alien ordered excludedwho boarded an aircraft or vessel inforeign contiguous territory or in anyadjacent island shall be deported tosuch foreign contiguous territory oradjacent island if the alien is a native,citizen, subject, or national of suchforeign contiguous territory or adjacentisland, or if the alien has a residence insuch foreign contiguous territory oradjacent island. Otherwise, the alienshall be deported, in the first instance,to the country in which is located theport at which the alien embarked forsuch foreign contiguous territory oradjacent island.

(d) Land border pedestrian arrivals.Any alien ordered excluded who arrivedat a land border on foot shall bedeported in the same manner as if thealien had boarded a vessel or aircraft inforeign contiguous territory.

§§ 241.26–241.29 [Reserved]

Subpart C—Deportation of Aliens inthe United States (for hearingscommenced prior to April 1, 1997)


Subpart C of 8 CFR part 241 appliesto deportation proceedings commencedprior to April 1, 1997. All references tothe Act contained in this subpart arereferences to the Act in effect prior toApril 1, 1997.

§ 241.31 Final order of deportation.Except as otherwise required by

section 242(c) of the Act for the specific

purposes of that section, an order ofdeportation, including an alternateorder of deportation coupled with anorder of voluntary departure, made bythe immigration judge in proceedingsunder 8 CFR part 240 shall become finalupon dismissal of an appeal by theBoard of Immigration Appeals, uponwaiver of appeal, or upon expiration ofthe time allotted for an appeal when noappeal is taken; or, if such an order isissued by the Board or approved by theBoard upon certification, it shall be finalas of the date of the Board’s decision.

§ 241.32 Warrant of deportation.A Form I–205, Warrant of

Deportation, based upon the finaladministrative order of deportation inthe alien’s case shall be issued by adistrict director. The district directorshall exercise the authority contained insection 243 of the Act to determine atwhose expense the alien shall bedeported and whether his or her mentalor physical condition requires personalcare and attention en route to his or herdestination.

§ 241.33 Expulsion.(a) Execution of order. Except in the

exercise of discretion by the districtdirector, and for such reasons as are setforth in § 212.5(a) of this chapter, oncean order of deportation becomes final,an alien shall be taken into custody andthe order shall be executed. For thepurposes of this part, an order ofdeportation is final and subject toexecution upon the date when any ofthe following occurs:

(1) A grant of voluntary departureexpires;

(2) An immigration judge enters anorder of deportation without grantingvoluntary departure or other relief, andthe alien respondent waives his or herright to appeal;

(3) The Board of Immigration Appealsenters an order of deportation onappeal, without granting voluntarydeparture or other relief; or

(4) A Federal district or appellatecourt affirms an administrative order ofdeportation in a petition for review orhabeas corpus action.

(b) Service of decision. In the case ofan order entered by any of theauthorities enumerated above, the ordershall be executed no sooner than 72hours after service of the decision,regardless of whether the alien is inService custody, provided that suchperiod may be waived on the knowingand voluntary request of the alien.Nothing in this paragraph shall beconstrued, however, to precludeassumption of custody by the Service atthe time of issuance of the final order.





PART 244—TEMPORARY PROTECTEDSTATUS FOR NATIONALS OFDESIGNATED STATES

108. The heading for part 244 isrevised as set forth above.

109. The authority citation for part244 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note,8 CFR part 2.

§§ 244.1 and 244.2 [Removed]110. Sections 244.1 and 244.2 are

removed.

§§ 244.3 through 244.22 [Redesignated as§§ 244.1 through 244.20]

111. Newly designated §§ 244.3through 244.22 are further redesignatedas §§ 244.1 through 244.20, respectively.

PART 245—ADJUSTMENT OF STATUSTO THAT OF PERSON ADMITTED FORPERMANENT RESIDENCE



113. Section 245.1 is amended by:a. Removing the word ‘‘and’’ at the

end of the paragraph (c)(3);b. Removing the ‘‘.’’ at the end of

paragraphs (c)(4) through (c)(7), andreplacing it with a ‘‘;’’;

c. Redesignating paragraph (c)(8) asparagraph (c)(9);

d. Adding a new paragraph (c)(8);e. Revising newly redesignated

paragraph (c)(9) introductory text;f. Revising newly redesignated

paragraphs (c)(9)(i) through (c)(9)(iii);and by

g. Revising paragraph (f), to read asfollows:

§ 245.1 Eligibility.* * * * *

(c) * * *(8) Any arriving alien who is in

removal proceedings pursuant to section235(b)(1) or section 240 of the Act; and

(9) Any alien who seeks to adjuststatus based upon a marriage whichoccurred on or after November 10, 1986,and while the alien was in exclusion,deportation, or removal proceedings, orjudicial proceedings relating thereto.

(i) Commencement of proceedings.The period during which the alien is in


deportation, exclusion, or removalproceedings or judicial proceedingsrelating thereto, commences:

(A) With the issuance of the Form I–221, Order to Show Cause and Notice ofHearing prior to June 20, 1991;

(B) With the filing of a Form I–221,Order to Show Cause and Notice ofHearing, issued on or after June 20,1991, with the Immigration Court;

(C) With the issuance of Form I–122,Notice to Applicant for AdmissionDetained for Hearing BeforeImmigration Judge, prior to April 1,1997,

(D) With the filing of a Form I–862,Notice to Appear, with the ImmigrationCourt, or

(E) With the issuance and service ofForm I–860, Notice and Order ofExpedited Removal.

(ii) Termination of proceedings. Theperiod during which the alien is inexclusion, deportation, or removalproceedings, or judicial proceedingsrelating thereto, terminates:

(A) When the alien departs from theUnited States while an order ofexclusion, deportation, or removal isoutstanding or before the expiration ofthe voluntary departure time granted inconnection with an alternate order ofdeportation or removal;

(B) When the alien is found not to beinadmissible or deportable from theUnited States;

(C) When the Form I–122, I–221, I–860, or I–862 is canceled;

(D) When proceedings are terminatedby the immigration judge or the Boardof Immigration Appeals; or

(E) When a petition for review or anaction for habeas corpus is granted by aFederal court on judicial review.

(iii) Exemptions. This prohibitionshall no longer apply if:

(A) The alien is found not to beinadmissible or deportable from theUnited States;

(B) Form I–122, I–221, I–860, or I–862, is canceled;

(C) Proceedings are terminated by theimmigration judge or the Board ofImmigration Appeals;

(D) A petition for review or an actionfor habeas corpus is granted by aFederal court on judicial review;

(E) The alien has resided outside theUnited States for 2 or more yearsfollowing the marriage; or

(F) The alien establishes the marriageis bona fide by providing clear andconvincing evidence that the marriagewas entered into in good faith and inaccordance with the laws of the placewhere the marriage took place, was notentered into for the purpose ofprocuring the alien’s entry as animmigrant, and no fee or other

consideration was given (other than toan attorney for assistance in preparationof a lawful petition) for the filing of apetition.* * * * *

(f) Concurrent applications toovercome grounds of inadmissibility.Except as provided in 8 CFR parts 235and 249, an application under this partshall be the sole method of requestingthe exercise of discretion under sections212(g), (h), (i), and (k) of the Act, as theyrelate to the inadmissibility of an alienin the United States. No fee is requiredfor filing an application to overcome thegrounds of inadmissibility of the Act iffiled concurrently with an applicationfor adjustment of status under theprovisions of the Act of October 28,1977, and of this part.* * * * *

114. Section 245.2 is amended by:a. Revising paragraph (a)(1);b. Revising paragraph (a)(4)(ii);c. Revising paragraph (a)(5)(ii) and

(iii); and byd. Revising paragraph (c), to read as

follows:

§ 245.2 Application.

(a) * * * (1) Jurisdiction. An alienwho believes he or she meets theeligibility requirements of section 245 ofthe Act or section 1 of the Act ofNovember 2, 1966, and § 245.1 shallapply to the director having jurisdictionover his or her place of residence unlessotherwise instructed in 8 CFR part 245,or by the instruction on the applicationform. After an alien, other than anarriving alien, is in deportation orremoval proceedings, his or herapplication for adjustment of statusunder section 245 of the Act or section1 of the Act of November 2, 1966 shallbe made and considered only in thoseproceedings. An arriving alien, otherthan an alien in removal proceedings,who believes he or she meets theeligibility requirements of section 245 ofthe Act or section 1 of the Act ofNovember 2, 1966, and § 245.1 shallapply to the director having jurisdictionover his or her place of arrival. Anadjustment application by an alienparoled under section 212(d)(5) of theAct, which has been denied by thedirector, may be renewed in removalproceedings under 8 CFR part 240 onlyif:

(i) The denied application must havebeen properly filed subsequent to theapplicant’s earlier inspection andadmission to the United States; and

(ii) The applicant’s later absence fromand return to the United States wasunder the terms of an advance paroleauthorization on Form I–512 granted to

permit the applicant’s absence andreturn to pursue the previously filedadjustment application.* * * * *

(4) * * *(ii) Under section 245 of the Act. The

departure from the United States of anapplicant who is under exclusion,deportation, or removal proceedingsshall be deemed an abandonment of theapplication constituting grounds fortermination of the proceeding by reasonof the departure. The departure of anapplicant who is not under exclusion,deportation, or removal proceedingsshall be deemed an abandonment of hisor her application constituting groundsfor termination, unless the applicantwas previously granted advance paroleby the Service for such absence, andwas inspected upon returning to theUnited States. If the application of anindividual granted advance parole issubsequently denied, the applicant willbe treated as an applicant for admission,and subject to the provisions of sections212 and 235 of the Act.* * * * *

(5) * * *(ii) Under section 245 of the Act. If the

application is approved, the applicant’spermanent residence shall be recordedas of the date of the order approving theadjustment of status. An application foradjustment of status, as a preferencealien, shall not be approved until animmigrant visa number has beenallocated by the Department of State,except when the applicant hasestablished eligibility for the benefits ofPublic Law 101–238. No appeal liesfrom the denial of an application by thedirector, but the applicant, if not anarriving alien, retains the right to renewhis or her application in proceedingsunder 8 CFR part 240. Also, anapplicant who is a parolee and meetsthe two conditions described in§ 245.2(a)(1) may renew a deniedapplication in proceedings under 8 CFRpart 240 to determine admissibility. Atthe time of renewal of the application,an applicant does not need to meet thestatutory requirement of section 245(c)of the Act, or § 245.1(g), if, in fact, thoserequirements were met at the time therenewed application was initially filedwith the director. Nothing in thissection shall entitle an alien toproceedings under section 240 of theAct who is not otherwise so entitled.

(iii) Under the Act of November 2,1966. If the application is approved, theapplicant’s permanent residence shallbe recorded in accordance with theprovisions of section 1. No appeal liesfrom the denial of an application by thedirector, but the applicant, if not an


arriving alien, retains the right to renewhis or her application in proceedingsunder 8 CFR part 240. Also, anapplicant who is a parolee and meetsthe two conditions described in§ 245.2(a)(1) may renew a deniedapplication in proceedings under 8 CFRpart 240 to determine admissibility.* * * * *

(c) Application under section 214(d)of the Act. An application forpermanent resident status pursuant tosection 214(d) of the Act shall be filedon Form I–485 with the director havingjurisdiction over the applicant’s place ofresidence. A separate application shallbe filed by each applicant. If theapplication is approved, the directorshall record the lawful admission of theapplicant as of the date of approval. Theapplicant shall be notified of thedecision and, if the application isdenied, of the reasons therefor. Noappeal shall lie from the denial of anapplication by the director but suchdenial shall be without prejudice to thealien’s right to renew his or herapplication in proceedings under 8 CFRpart 240.

115. Section 245.5 is amended byrevising the first sentence to read asfollows:

§ 245.5 Medical examination.Pursuant to section 232(b) of the Act,

an applicant for adjustment of statusshall be required to have a medicalexamination by a designated civilsurgeon, whose report setting forth thefindings of the mental and physicalcondition of the applicant, includingcompliance with section 212(a)(1)(A)(ii)of the Act, shall be incorporated into therecord. * * *

116. Section 245.8 is amended byrevising paragraph (e), to read asfollows:

§ 245.8 Adjustment of status as a specialimmigrant under section 101(a)(27)(K) of theAct.

* * * * *(e) Removal provisions of section 237

of the Act. If the Service is made awareby notification from the appropriateexecutive department or by any othermeans that a section 101(a)(27)(K)special immigrant who has already beengranted permanent residence fails tocomplete his or her total active dutyservice obligation for reasons other thanan honorable discharge, the alien maybecome subject to the removalprovisions of section 237 of the Act,provided the alien is in one or more ofthe classes of deportable aliens specifiedin section 237 of the Act. The Serviceshall obtain a current Form DD–214,Certificate of Release or Discharge from

Active Duty, from the appropriateexecutive department for verification ofthe alien’s failure to maintain eligibility.* * * * *

117. Section 245.9 is amended byrevising paragraphs (d) and (m), to readas follows:

§ 245.9 Adjustment of Status of CertainNationals of the People’s Republic of Chinaunder Public Law 102–404.

* * * * *(d) Waivers of inadmissibility under

section 212(a) of the Act. An applicantfor the benefits of the adjustment ofstatus provisions of Pub. L. 102–404 isautomatically exempted fromcompliance with the requirements ofsections 212(a)(5) and 212(a)(7)(A) ofthe Act. A Pub. L. 102–404 applicantmay also apply for one or more waiversof inadmissibility under section 212(a)of the Act, except for inadmissibilityunder section 212(a)(2)(C), 212(a)(3)(A),212(a)(3)(B), 212(a)(3)(C) or 212(a)(3)(E)of the Act.* * * * *

(m) Effect of enactment on familymembers other than qualified familymembers. The adjustment of statusbenefits and waivers provided by Pub.L. 102–404 do not apply to a spouse orchild who is not a qualified familymember as defined in paragraph (c) ofthis section. However, a spouse or childwhose relationship to the principalalien was established prior to theapproval of the principal’s adjustmentof status application may be accordedthe derivative priority date andpreference category of the principalalien, in accordance with the provisionsof section 203(d) of the Act. The spouseor child may use the priority date andcategory when it becomes current, inaccordance with the limitations set forthin sections 201 and 202 of the Act.Persons who are unable to maintainlawful nonimmigrant status in theUnited States and are not immediatelyeligible to apply for adjustment of statusmay request voluntary departurepursuant to 8 CFR part 240.

118. Section 245.10 is amended by:a. Revising paragraphs (a) (3) and (6);

and byb. Revising introductory text in

paragraph (b), to read as follows:

§ 245.10 Adjustment of status uponpayment of additional sum under PublicLaw 103–317.

(a) * * *(3) Is not inadmissible from the

United States under any provision ofsection 212 of the Act, or all grounds forinadmissibility have been waived;* * * * *

(6) Remits the sum specified insection 245(i) of the Act, unlesspayment of the sum is waived undersection 245(i) of the Act; and* * * * *

(b) Payment of additional sum. Anapplicant filing under the provisions ofsection 245(i) of the Act must pay thestandard adjustment of status filing fee,as shown on Form I–485 and containedin § 103.7(b)(1) of this chapter. Theapplicant must also pay the additionalsum specified in section 245(i) of theAct, unless at the time the applicationfor adjustment of status is filed, thealien is:* * * * *

119. Section 245.11 is amended by:a. Revising paragraph (a)(4)(ii)(B);b. Revising paragraph (b)(1)(iii);c. Revising the introductory text in

paragraph (c); and byd. Revising paragraphs (h) and (i), to

read as follows:

§ 245.11 Adjustment of aliens in Snonimmigrant classification.

(a) * * *(4) * * *(ii) * * *(B) Be admissible to the United States

as an immigrant, unless the ground ofinadmissibility has been waived;* * * * *

(b) * * *(1) * * *(iii) The family member is not

inadmissible from the United States asa participant in Nazi persecution orgenocide as described in section212(a)(3)(E) of the Act;* * * * *

(c) Waivers of inadmissibility. Analien seeking to adjust status pursuantto the provisions of section 101(a)(15)(S)of the Act may not be denied adjustmentof status for conduct or a condition that:* * * * *

(h) Removal under section 237 of theAct. Nothing in this section shallprevent an alien adjusted pursuant tothe terms of these provisions from beingremoved for conviction of a crime ofmoral turpitude committed within 10years after being provided lawfulpermanent residence under this sectionor for any other ground under section237 of the Act.

(i) Denial of application. In the eventthe district director decides to deny anapplication on Form I–485 and anapproved Form I–854 to allow an Snonimmigrant to adjust status, theAssistant Attorney General, CriminalDivision, and the relevant LEA shall benotified in writing to that effect. TheAssistant Attorney General, CriminalDivision, shall concur in or object to


that decision. Unless the AssistantAttorney General, Criminal Division,objects within 7 days, he or she shall bedeemed to have concurred in thedecision. In the event of an objection bythe Assistant Attorney General,Criminal Division, the matter will beexpeditiously referred to the DeputyAttorney General for a final resolution.In no circumstances shall the alien orthe relevant LEA have a right of appealfrom any decision to deny. A denial ofan adjustment application under thisparagraph may not be renewed insubsequent removal proceedings.


PART 246—RESCISSION OFADJUSTMENT OF STATUS

Sec.246.1 Notice.246.2 Allegations admitted; no answer

filed; no hearing requested.246.3 Allegations contested or denied;

hearing requested.246.4 Immigration judge’s authority;

withdrawal and substitution.246.5 Hearing.246.6 Decision and order.246.7 Appeals.246.8 [Reserved]246.9 Surrender of Form I–551.

Authority: Authority: 8 U.S.C. 1103, 1254,1255, 1256, 1259; 8 CFR part 2.

§ 246.1 Notice.

If it appears to a district director thata person residing in his or her districtwas not in fact eligible for theadjustment of status made in his or hercase, a proceeding shall be commencedby the personal service upon suchperson of a notice of intent to rescindwhich shall inform him or her of theallegations upon which it is intended torescind the adjustment of his or herstatus. In such a proceeding the personshall be known as the respondent. Thenotice shall also inform the respondentthat he or she may submit, within thirtydays from the date of service of thenotice, an answer in writing under oathsetting forth reasons why suchrescission shall not be made, and that heor she may, within such period, requesta hearing before an immigration judge insupport of, or in lieu of, his or herwritten answer. The respondent shallfurther be informed that he or she mayhave the assistance of or be representedby counsel or representative of his orher choice qualified under part 292 ofthis chapter, at no expense to theGovernment, in the preparation of his orher answer or in connection with his orher hearing, and that he or she maypresent such evidence in his or her

behalf as may be relevant to therescission.

§ 246.2 Allegations admitted; no answerfiled; no hearing requested.

If the answer admits the allegations inthe notice, or if no answer is filedwithin the thirty-day period, or if nohearing is requested within such period,the district director shall rescind theadjustment of status previously granted,and no appeal shall lie from hisdecision.

§ 246.3 Allegations contested or denied;hearing requested.

If, within the prescribed timefollowing service of the notice pursuantto § 246.1, the respondent has filed ananswer which contests or denies anyallegation in the notice, or a hearing isrequested, a hearing pursuant to § 246.5shall be conducted by an immigrationjudge, and the requirements containedin §§ 240.3, 240.4, 240.5, 240.6, 240.7,and 240.9 of this chapter shall befollowed.

§ 246.4 Immigration judge’s authority;withdrawal and substitution.

In any proceeding conducted underthis part, the immigration judge shallhave authority to interrogate, examine,and cross-examine the respondent andother witnesses, to present and receiveevidence, to determine whetheradjustment of status shall be rescinded,to make decisions thereon, including anappropriate order, and to take any otheraction consistent with applicableprovisions of law and regulations asmay be appropriate to the disposition ofthe case. Nothing contained in this partshall be construed to diminish theauthority conferred on immigrationjudges by the Act. The immigrationjudge assigned to conduct a hearingshall, at any time, withdraw if he or shedeems himself or herself disqualified. Ifa hearing has begun but no evidence hasbeen adduced other than the notice andanswer, if any, pursuant to §§ 246.1 and246.2, or if an immigration judgebecomes unavailable to complete his orher duties within a reasonable time, orif at any time the respondent consentsto a substitution, another immigrationjudge may be assigned to complete thecase. The new immigration judge shallfamiliarize himself or herself with therecord in the case and shall state for therecord that he or she is familiar with therecord in the case.

§ 246.5 Hearing.(a) Service counsel. The Government

shall be represented at the hearing by aService counsel who shall haveauthority to present evidence, and tointerrogate, examine, and cross-examine

the respondent and other witnesses. TheService counsel is authorized to appealfrom a decision of the immigrationjudge pursuant to § 246.7 and to movefor reopening or reconsiderationpursuant to § 3.23 of this chapter.

(b) Opening. The immigration judgeshall advise the respondent of thenature of the proceeding and the legalauthority under which it is conducted;advise the respondent of his or her rightto representation, at no expense to theGovernment, by counsel orrepresentative of his or her own choicequalified under part 292 of this chapterand require him or her to state then andthere whether he or she desiresrepresentation; advise the respondentthat he or she will have a reasonableopportunity to examine and object tothe evidence against him or her, topresent evidence in his or her ownbehalf, and to cross-examine witnessespresented by the Government; place therespondent under oath; read theallegations in the notice to therespondent and explain them innontechnical language, and enter thenotice and respondent’s answer, if any,as exhibits in the record.

(c) Pleading by respondent. Theimmigration judge shall require therespondent to state for the recordwhether he or she admits or denies theallegations contained in the notice, orany of them, and whether he or sheconcedes that his or her adjustment ofstatus should be rescinded. If therespondent admits all of the allegationsand concedes that the adjustment ofstatus in his or her case should berescinded under the allegations set forthin the notice, and the immigration judgeis satisfied that no issues of law or factremain, he or she may determine thatrescission as alleged has beenestablished by the respondent’sadmissions. The allegations containedin the notice shall be taken as admittedwhen the respondent, withoutreasonable cause, fails or refuses toattend or remain in attendance at thehearing.

§ 246.6 Decision and order.

The decision of the immigration judgemay be oral or written. The formalenumeration of findings is not required.The order shall direct either that theproceeding be terminated or that theadjustment of status be rescinded.Service of the decision and finality ofthe order of the immigration judge shallbe in accordance with, and as stated in§§ 240.13 (a) and (b) and 240.14 of thischapter.


§ 246.7 Appeals.Pursuant to 8 CFR part 3, an appeal

shall lie from a decision of animmigration judge under this part to theBoard of Immigration Appeals. Anappeal shall be taken within 30 daysafter the mailing of a written decision orthe stating of an oral decision. Thereasons for the appeal shall bespecifically identified in the Notice ofAppeal (Form EOIR 26); failure to do somay constitute a ground for dismissal ofthe appeal by the Board.

§ 246.8 [Reserved]

§ 246.9 Surrender of Form I–551.A respondent whose status as a

permanent resident has been rescindedin accordance with section 246 of theAct and this part, shall, upon demand,promptly surrender to the districtdirector having administrativejurisdiction over the office in which theaction under this part was taken, theForm I–551 issued to him or her at thetime of the grant of permanent residentstatus.

PART 248—CHANGE OFNONIMMIGRANT CLASSIFICATION

121. The authority citation for part248 continues to read as follows:


122. Section 248.1 is amended byrevising paragraph (b)(4) to read asfollows:

§ 248.1 Eligibility.* * * * *

(b) * * *(4) The alien is not the subject of

removal proceedings under 8 CFR part240.* * * * *

PART 249—CREATION OF RECORDSOF LAWFUL ADMISSION FORPERMANENT RESIDENCE



124. Section 249.2 is amended byrevising the first sentence in paragraph(a) and by revising paragraph (b), to readas follows:

§ 249.2 Application.(a) Jurisdiction. An application by an

alien, other than an arriving alien, whohas been served with a notice to appearor warrant of arrest shall be consideredonly in proceedings under 8 CFR part240. * * *

(b) Decision. The applicant shall benotified of the decision and, if the

application is denied, of the reasonstherefor. If the application is granted, aForm I–551, showing that the applicanthas acquired the status of an alienlawfully admitted for permanentresidence, shall not be issued until theapplicant surrenders any otherdocument in his or her possessionevidencing compliance with the alienregistration requirements of former orexisting law. No appeal shall lie fromthe denial of an application by thedistrict director. However, an alien,other than an arriving alien, may renewthe denied application in proceedingsunder 8 CFR part 240.

PART 251—ARRIVAL MANIFESTS ANDLISTS: SUPPORTING DOCUMENTS


Authority: 8 U.S.C. 1103, 1182, 1221, 1281,1282, 8 CFR part 2.


§ 251.1 Arrival manifests and lists.(a) Vessels—(1) General. The master

or agent of every vessel arriving in theUnited States from a foreign place or anoutlying possession of the United Statesshall present to the immigration officerat the port where the immigrationinspection is performed a manifest of allcrewmen on board on Form I–418,Passenger List and Crew List, inaccordance with the instructionscontained thereon.

(2) Longshore work notations. Themaster or agent of the vessel shallindicate in writing immediately belowthe name of the last alien listed on theForm I–418 whether or not crewmenaboard the vessel will be used toperform longshore work at any UnitedStates port before the vessel departs theUnited States.

(i) If no longshore work will beperformed, no further notation regardinglongshore work is required.

(ii) If longshore work will beperformed, the master or agent shallnote which exception listed in section258 of the Act permits the work. Theexceptions are:

(A) The hazardous cargo exception;(B) The prevailing practice exception

in accordance with a port’s collectivebargaining agreements;

(C) The prevailing practice exceptionat a port where there is no collectivebargaining agreement, but for which thevessel files an attestation;

(D) The prevailing practice exceptionfor automated vessels; and

(E) The reciprocity exception.(iii) If longshore work will be

performed under the hazardous cargo

exception, the vessel must either be atanker or be transporting dry bulk cargothat qualifies as hazardous. All tankersqualify for the hazardous cargoexception, except for a tanker that hasbeen gas-freed to load non-hazardousdry bulk commodities.

(A) To invoke the exception fortankers, the master or agent shall noteon the manifest that the vessel is aqualifying tanker.

(B) If the vessel is transporting drybulk hazardous cargo, the master oragent shall note on the manifest that thevessel’s dry bulk cargo is hazardous andshall show the immigration officer thedangerous cargo manifest that is signedby the master or an authorizedrepresentative of the owner, and thatunder 46 CFR 148.02 must be kept in aconspicuous place near the bridgehouse.

(iv) If longshore work will beperformed under the prevailing practiceexception, the master or agent shall noteon the manifest each port at whichlongshore work will be performed underthis exception. Additionally, for eachport the master or agent shall note eitherthat:

(A) The practice of nonimmigrantcrewmen doing longshore work is inaccordance with all collectivebargaining agreements covering 30percent or more of the longshoreworkers in the port;

(B) The port has no collectivebargaining agreement covering 30percent or more of the longshoreworkers in the port and an attestationhas been filed with the Secretary ofLabor;

(C) An attestation that was previouslyfiled is still valid and the vesselcontinues to comply with the conditionsstated in that attestation; or

(D) The longshore work consists ofoperating an automated, self-unloadingconveyor belt or a vacuum-actuatedsystem.

(v) If longshore work will beperformed under the reciprocityexception, the master or agent shall noteon the manifest that the work will bedone under the reciprocity exception,and will note the nationality of thevessel’s registry and the nationality ornationalities of the holders of a majorityof the ownership interest in the vessel.

(3) Exception for certain Great Lakesvessels. (i) A manifest shall not berequired for a vessel of United States,Canadian, or British registry engagedsolely in traffic on the Great Lakes or theSt. Lawrence River and connectingwaterways, herein designated as a GreatLakes vessel, unless:


(A) The vessel employs nonimmigrantcrewmen who will do longshore work ata port in the United States; or

(B) The vessel employs crewmen ofother than United States, Canadian, orBritish citizenship.

(ii) In either situation, the master shallnote the manifest in the mannerprescribed in paragraph (a)(2) of thissection.

(iii) After submission of a manifest onthe first voyage of a calendar year, amanifest shall not be required onsubsequent arrivals unless anonimmigrant crewman of other thanCanadian or British citizenship isemployed on the vessel who was notaboard and listed on the last priormanifest, or a change has occurredregarding the performance of longshorework in the United States bynonimmigrant crewmen, or a change hasoccurred in the exception that themaster or agent of the vessel wishes toinvoke which was not noted on the lastprior manifest.

(4) The master or agent of a vessel thatonly bunkers at a United States port enroute to another United States port shallannotate Form I–418 presented at theonward port to indicate the time, date,and place of bunkering.

(5) If documentation is required tosupport an exception, as described in§ 258.2 of this chapter, it mustaccompany the manifest.

(b) Aircraft. The captain or agent ofevery aircraft arriving in the UnitedStates from a foreign place or from anoutlying possession of the United States,except an aircraft arriving in the UnitedStates directly from Canada on a flightoriginating in that country, shall presentto the immigration officer at the portwhere the inspection is performed amanifest on United States CustomsService Form 7507 or on theInternational Civil AviationOrganization’s General Declaration of allthe alien crewmembers on board,including alien crewmembers who arereturning to the United States aftertaking an aircraft of the same line fromthe United States to a foreign place oralien crewmembers who are entering theUnited States as passengers solely forthe purpose of taking an aircraft of thesame line from the United States to aforeign port. The captain or agent of anaircraft that only refuels at the UnitedStates en route to another United Statesport must annotate the manifestpresented at the onward port to indicatethe time, date, and place of refueling.The surname, given name, and middleinitial of each alien crewman listed alsoshall be shown on the manifest. Inaddition, the captain or agent of theaircraft shall indicate the total number

of United States citizen crewmembersand total number of alien crewmembers.

(c) Additional documents. Themaster, captain, or agent shall prepareas a part of the manifest, when one isrequired for presentation to animmigration officer, a completelyexecuted set of Forms I–95, ConditionalLanding Permit, for each nonimmigrantalien crewman on board, except:

(1) A Canadian or British citizencrewman serving on a vessel plyingsolely between Canada and the UnitedStates; or

(2) A nonimmigrant crewman who isin possession of an unmutilated Form I–184, Alien Crewman Landing Permitand Identification Card, or anunmutilated Form I–95 with space foradditional endorsements previouslyissued to him or her as a member of thecrew of the same vessel or an aircraft ofthe same line on his or her last priorarrival in the United States, followingwhich he or she departed from theUnited States as a member of the crewof the same vessel or an aircraft of thesame line.


§ 251.2 Notification of illegal landings.As soon as discovered, the master or

agent of any vessel from which an aliencrewman has illegally landed ordeserted in the United States shallinform the immigration officer in chargeof the port where the illegal landing ordesertion occurred, in writing, of thename, nationality, passport number and,if known, the personal description,circumstances and time of such illegallanding or desertion of such aliencrewman, and furnish any otherinformation and documents that mightaid in his or her apprehension,including any passport surrenderedpursuant to § 252.1(d) of this chapter.Failure to file notice of illegal landingor desertion and to furnish anysurrendered passport within 24 hours ofthe time of such landing or desertionbecomes known shall be regarded aslack of compliance with section 251(d)of the Act.


§ 251.3 Departure manifests and lists forvessels.

(a) Form I–418, Passenger List-CrewList. The master or agent of every vesseldeparting from the United States shallsubmit to the immigration officer at theport from which such vessel is to departdirectly to some foreign place oroutlying possession of the United States,except when a manifest is not requiredpursuant to § 251.1(a), a single Form I–

418 completed in accordance with theinstructions on the form. Submission ofa Form I–418 that lacks any requiredendorsement shall be regarded as lack ofcompliance with section 251(c) of theAct.

(b) Exception for certain Great Lakesvessels. The required list need not besubmitted for Canadian or Britishcrewmembers of Great Lakes vesselsdescribed in § 251.1(a)(3).


§ 251.4 Departure manifests and lists foraircraft.

(a) United States Customs ServiceForm 7507 or International CivilAviation Organization’s GeneralDeclaration. The captain or agent ofevery aircraft departing from the UnitedStates for a foreign place or an outlyingpossession of the United States, excepton a flight departing for and terminatingin Canada, shall submit to theimmigration officer at the port fromwhich such aircraft is to depart acompleted United States CustomsService Form 7507 or the InternationalCivil Aviation Organization’s GeneralDeclaration. The form shall contain alist of all alien crewmen on board,including alien crewmen who arrived inthe United States as crewmen on anaircraft of the same line and who aredeparting as passengers. The surname,given name, and middle initial of eachsuch alien crewman listed shall beshown. In addition, the captain or agentof the aircraft shall indicate the totalnumber of alien crewmembers and thetotal number of United States citizencrewmembers.

(b) Notification of changes inemployment for aircraft. The agent ofthe air transportation line shallimmediately notify in writing thenearest immigration office of thetermination of employment in theUnited States of each alien employee ofthe line furnishing the name, birth date,birthplace, nationality, passportnumber, and other available informationconcerning such alien. The procedure tofollow in obtaining permission to payoff or discharge an alien crewman in theUnited States after initial immigrationinspection, other than an alien lawfullyadmitted for permanent residence, is setforth in § 252.1(f) of this chapter.


§ 251.5 Exemptions for private vessels andaircraft.

The provisions of this part relating tosubmission of arrival and departuremanifests and lists shall not apply to aprivate vessel or a private aircraft not


engaged directly or indirectly in thecarriage of persons or cargo for hire.

PART 252—LANDING OF ALIENCREWMEN



132. Section 252.1 is amended byrevising paragraphs (a) through (c) toread as follows:

§ 252.1 Examination of crewmen.(a) Detention prior to examination.

All persons employed in any capacityon board any vessel or aircraft arrivingin the United States shall be detained onboard the vessel or at the airport ofarrival by the master or agent of suchvessel or aircraft until admitted orotherwise permitted to land by anofficer of the Service.

(b) Classes of aliens subject toexamination under this part. Theexamination of every nonimmigrantalien crewman arriving in the UnitedStates shall be in accordance with thispart except that the following classes ofpersons employed on vessels or aircraftshall be examined in accordance withthe provisions of 8 CFR parts 235 and240:

(1) Canadian or British citizencrewmen serving on vessels plyingsolely between Canada and the UnitedStates; or

(2) Canadian or British citizencrewmen of aircraft arriving in a Stateof the United States directly fromCanada on flights originating in thatcountry. The crew of a vessel arriving ata United States port that may notrequire inspection by or clearance fromthe United States Customs Service is,nevertheless, subject to examinationunder this part; however, the master ofsuch a vessel is not required to presentForm I–95 for any crewman who is notan applicant for a conditional landingpermit.

(c) Requirements for landing permits.Every alien crewman applying forlanding privileges in the United Statesmust make his or her application inperson before an immigration officer,present whatever documents arerequired, be photographed andfingerprinted as the district director mayrequire, and establish to the satisfactionof the immigration officer that he or sheis not inadmissible under any provisionof the law and is entitled clearly andbeyond doubt to landing privileges inthe United States.* * * * *


§ 252.2 Revocation of conditional landingpermits; removal.

(a) Revocation and removal whilevessel is in the United States. Acrewman whose landing permit issubject to revocation pursuant to section252(b) of the Act may be taken intocustody by any immigration officerwithout a warrant of arrest and betransferred to the vessel of arrival, if thevessel is in any port in the United Statesand has not departed foreign since thecrewman was issued his or herconditional landing permit. Detentionand removal of the crewman shall be atthe expense of the transportation line onwhich the crewman arrived. Removalmay be effected on the vessel of arrivalor, if the master of the vessel hasrequested in writing, by alternate meansif removal on the vessel of arrival isimpractical.

(b) Revocation and removal aftervessel has departed the United States. Acrewman who was granted landingprivileges prior to April 1, 1997, andwho has not departed foreign on thevessel of arrival, or on another vessel oraircraft if such permission was grantedpursuant to § 252.1(f), is subject toremoval proceedings under section 240of the Act as an alien deportablepursuant to section 237(a)(1)(C)(i) of theAct. A crewman who was grantedlanding privileges on or after April 1,1997, and who has not departed foreignon the vessel of arrival, or on anothervessel or aircraft if such permission wasgranted pursuant to § 252.1(f), shall beremoved from the United States withouta hearing, except as provided in§ 208.2(b)(1) of this chapter. In eithercase, if the alien is removed within 5years of the date of landing, removal ofthe crewman shall be at the expense ofthe owner of the vessel. In the case ofa crewman ordered removed more than5 years after the date of landing,removal shall be at the expense of theappropriation for the enforcement of theAct.


§ 252.3 Great Lakes vessels and tugboatsarriving in the United States from Canada;special procedures.

(a) United States vessels and tugboats.An immigration examination shall notbe required of any crewman aboard aGreat Lakes vessel of United Statesregistry or a tugboat of United Statesregistry arriving from Canada at a portof the United States who has beenexamined and admitted by animmigration officer as a member of thecrew of the same vessel or tugboat or ofany other vessel or tugboat of the same

company during the current calendaryear.

(b) Canadian or British vessels ortugboats. An alien crewman need not bepresented for inspection if the aliencrewman:

(1) Serves aboard a Great Lakes vesselof Canadian or British registry or aboarda tugboat of Canadian or British registryarriving at a United States port-of-entryfrom Canada;

(2) Seeks admission for a period ofless than 29 days;

(3) Has, during the current calendaryear, been inspected and admitted by animmigration officer as a member of thecrew of the same vessel or tugboat, orof any other vessel or tugboat of thesame company;

(4) Is either a British or Canadiancitizen or is in possession of a validForm I–95 previously issued to him orher as a member of the crew of the samevessel or tugboat, or of any other vesselor tugboat of the same company;

(5) Does not request or require landingprivileges in the United States beyondthe time the vessel or tugboat will be inport; and,

(6) Will depart to Canada with thevessel or tugboat.


§ 252.4 Permanent landing permit andidentification card.

A Form I–184 is valid until revoked.It shall be revoked when an immigrationofficer finds that the crewman is in theUnited States in willful violation of theterms and conditions of his or herpermission to land, or that he or she isinadmissible to the United States. Onrevocation, the Form I–184 shall besurrendered to an immigration officer.No appeal shall lie from the revocationof Form I–184.


§ 252.5 Special procedures for desertersfrom Spanish or Greek ships of war.

(a) General. Under E.O. 11267 ofJanuary 19, 1966 (31 FR 807) and 28CFR 0.109, and E.O. 11300 of August 17,1966, (31 FR 11009), and 28 CFR 0.110,the Commissioner and immigrationofficers (as defined in § 103.1(j) of thischapter) are designated as ‘‘competentnational authorities’’ on the part of theUnited States within the meaning ofArticle XXIV of the 1903 Treaty ofFriendship and General Relationsbetween the United States and Spain (33Stat. 2105, 2117), and ‘‘localauthorities’’ and ‘‘competent officers’’on the part of the United States withinthe meaning of Article XIII of theConvention between the United Statesand Greece (33 Stat. 2122, 2131).


(b) Application for restoration. Onapplication of a Consul General, Consul,Vice-Consul, or Consular-Agent of theSpanish or Greek Government, made inwriting pursuant to Article XXIV of thetreaty, or Article XIII of the Convention,respectively, stipulating for therestoration of crewmen deserting,stating that the person named thereinhas deserted from a ship of war of thatgovernment, while in any port of theUnited States, and on proof by theexhibition of the register, crew list, orofficial documents of the vessel, or acopy or extract therefrom, duly certified,that the person named belonged, at thetime of desertion, to the crew of suchvessel, such person shall be taken intocustody by any immigration officerwithout a warrant of arrest. Writtennotification of charges shall be servedon the alien when he or she is taken intocustody or as soon as practicalthereafter.

(c) Examination. Within a reasonableperiod of time after the arrest, the alienshall be accorded an examination by thedistrict director, acting district director,or the deputy district director havingjurisdiction over the place of arrest. Thealien shall be informed that he or shemay have the assistance of or berepresented by a counsel orrepresentative of his or her choicequalified under 8 CFR part 292 withoutexpense to the Government, and that heor she may present such evidence in hisor her behalf as may be relevant to thisproceeding. If, upon the completion ofsuch examination, it is determined that:

(1) The individual sought by theSpanish or Greek authorities haddeserted from a Spanish or Greek shipof war in a United States port;

(2) The individual actually arrestedand detained is the person sought;

(3) The individual is not a citizen ofthe United States; and

(4) The individual had not previouslybeen arrested for the same cause and setat liberty because he or she had beendetained for more than 3 months, ormore than 2 months in the case of adeserter from a Greek ship of war, fromthe day of his or her arrest without theSpanish or Greek authorities havingfound an opportunity to send him or herhome, the individual shall be servedwith a copy of the findings, from whichno appeal shall lie, and be surrenderedforthwith to the Spanish or Greekauthorities if they are prepared toremove him or her from the UnitedStates. On written request of theSpanish or Greek authorities, theindividual shall be detained, at theirexpense, for a period not exceeding 3months or 2 months, respectively, fromthe day of arrest to afford opportunity to

arrange for his or her departure from theUnited States.

(d) Timely departure not effected. Ifthe Spanish authorities delay in sendingthe individual home for more than 3months, or if the Greek authorities delayin sending the individual home for morethan 2 months, from the day of his orher arrest, the individual shall be dealtwith as any other alien unlawfully inthe United States under the removalprovisions of the Act, as amended.

(e) Commission of crime. If theindividual has committed any crime oroffense in the United States, he or sheshall not be placed at the disposal of theconsul until after the proper tribunalhaving jurisdiction in his or her caseshall have pronounced sentence, andsuch sentence shall have been executed.

PART 253—PAROLE OF ALIENCREWMEN



138. In § 253.1, paragraph (f) isrevised to read as follows:

§ 253.1 Parole.

* * * * *(f) Crewman, stowaway, or alien

removable under section 235(c) allegingpersecution. Any alien crewman,stowaway, or alien removable undersection 235(c) of the Act who allegesthat he or she cannot return to his or hercountry of nationality or last habitualresidence (if not a national of anycountry) because of fear of persecutionin that country on account of race,religion, nationality, membership in aparticular social group, or politicalopinion, is eligible to apply for asylumor withholding of removal under 8 CFRpart 208. Service officers shall takeparticular care to ensure that theprovisions of § 208.5(b) of this chapterregarding special duties toward aliensaboard certain vessels are closelyfollowed.* * * * *

PART 274a—CONTROL OFEMPLOYMENT OF ALIENS

139. The authority citation for part274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8CFR part 2.

140. Section 274a.12 is amended by:a. Revising paragraphs (a)(10) and

(12);b. Revising paragraphs (c)(8) and (10);c. Revising paragraph (c)(12); and byd. Revising paragraph (c)(18), to read

as follows:

§ 274a.12 Classes of aliens authorized toaccept employment.

(a) * * *(10) An alien granted withholding of

deportation or removal for the period oftime in that status, as evidenced by anemployment authorization documentissued by the Service;* * * * *

(12) An alien granted TemporaryProtected Status under section 244 ofthe Act for the period of time in thatstatus, as evidenced by an employmentauthorization document issued by theService; or* * * * *

(c) * * *(8) An alien who has filed a complete

application for asylum or withholdingof deportation or removal pursuant to 8CFR part 208, whose application:

(i) Has not been decided, and who iseligible to apply for employmentauthorization under § 208.7 of thischapter because the 150-day period setforth in that section has expired.Employment authorization may begranted according to the provisions of§ 208.7 of this chapter in increments tobe determined by the Commissioner andshall expire on a specified date; or

(ii) Has been recommended forapproval, but who has not yet receiveda grant of asylum or withholding ordeportation or removal;* * * * *

(10) An alien who has filed anapplication for suspension ofdeportation under section 244 of the Act(as it existed prior to April 1, 1997) orcancellation of removal pursuant tosection 240A of the Act. Employmentauthorization shall be granted inincrements not exceeding one yearduring the period the application ispending (including any period when anadministrative appeal or judicial reviewis pending) and shall expire on aspecified date;* * * * *

(12) An alien granted benefits underthe Family Unity provisions of section301 of IMMACT 90 and the provisionsof part 236, Subpart B of this chapter.* * * * *

(18) An alien against whom a finalorder of deportation or removal existsand who is released on an order ofsupervision under the authoritycontained in section 241(a)(3) of the Actmay be granted employmentauthorization in the discretion of thedistrict director only if the alien cannotbe removed due to the refusal of allcountries designated by the alien orunder section 241 of the Act to receivethe alien, or because the removal of thealien is otherwise impracticable or


contrary to the public interest.Additional factors which may beconsidered by the district director inadjudicating the application foremployment authorization include, butare not limited to, the following:

(i) The existence of economicnecessity to be employed;

(ii) The existence of a dependentspouse and/or children in the UnitedStates who rely on the alien for support;and

(iii) The anticipated length of timebefore the alien can be removed fromthe United States.* * * * *

PART 286—IMMIGRATION USER FEE



142. In § 286.9, paragraph (b)(3) isrevised to read as follows:

§ 286.9 Fee for processing applicationsand issuing documentation at land borderPorts-of-Entry.

* * * * *(b) * * *(3) A Mexican national in possession

of a valid nonresident alien bordercrossing card or nonimmigrant B–1/B–2visa who is required to be issued FormI–94, Arrival/Departure Record,pursuant to § 235.1(f) of this chapter,must remit the required fee for issuanceof Form I–94 upon determination ofadmissibility.* * * * *

PART 287—FIELD OFFICERS;POWERS AND DUTIES


Authority: 8 U.S.C. 1103, 1182, 1225, 1226,1251, 1252, 1357; 8 CFR part 2.


§ 287.3 Disposition of cases of aliensarrested without warrant.

(a) Examination. An alien arrestedwithout a warrant of arrest under theauthority contained in section 287(a)(2)of the Act will be examined by anofficer other than the arresting officer. Ifno other qualified officer is readilyavailable and the taking of the alienbefore another officer would entailunnecessary delay, the arresting officer,if the conduct of such examination is apart of the duties assigned to him or her,may examine the alien.

(b) Determination of proceedings. Ifthe examining officer is satisfied thatthere is prima facie evidence that the

arrested alien was entering, attemptingto enter, or is present in the UnitedStates in violation of the immigrationlaws, the examining officer will refer thecase to an immigration judge for furtherinquiry in accordance with 8 CFR parts235, 239, or 240, order the alienremoved as provided for in section235(b)(1) of the Act and § 235.3(b) ofthis chapter, or take whatever otheraction may be appropriate or requiredunder the laws or regulations applicableto the particular case.

(c) Notifications and information.Except in the case of an alien subject tothe expedited removal provisions ofsection 235(b)(1)(A) of the Act, an alienarrested without warrant and placed informal proceedings under section 238 or240 of the Act will be advised of thereasons for his or her arrest and the rightto be represented at no expense to theGovernment. The examining officer willprovide the alien with a list of theavailable free legal services provided byorganizations and attorneys qualifiedunder 8 CFR part 3 and organizationsrecognized under § 292.2 of this chapterthat are located in the district where thehearing will be held. The examiningofficer shall note on Form I–862 thatsuch a list was provided to the alien.The officer will also advise the alienthat any statement made may be usedagainst him or her in a subsequentproceeding.

(d) Custody procedures. Unlessvoluntary departure has been grantedpursuant to subpart C of 8 CFR part 240,a determination will be made within 24hours of the arrest whether the alienwill be continued in custody or releasedon bond or recognizance and whether anotice to appear and warrant of arrest asprescribed in 8 CFR parts 236 and 239will be issued.

145. In § 287.4, paragraph (d) isrevised to read as follows:

§ 287.4 Subpoena.

* * * * *(d) Invoking aid of court. If a witness

neglects or refuses to appear and testifyas directed by the subpoena servedupon him or her in accordance with theprovisions of this section, the officer orimmigration judge issuing the subpoenashall request the United States Attorneyfor the district in which the subpoenawas issued to report such neglect orrefusal to the United States DistrictCourt and to request such court to issuean order requiring the witness to appearand testify and to produce the books,papers, or documents designated in thesubpoena.

146. In § 287.5, paragraphs (b) through(f) are revised to read as follows:

§ 287.5 Exercise of power by immigrationofficers.

* * * * *(b) Power and authority to patrol the

border. The following immigrationofficers who have successfullycompleted basic immigration lawenforcement training are herebyauthorized and designated to exercisethe power to patrol the border conferredby section 287(a)(3) of the Act:

(1) Border patrol agents, includingaircraft pilots;

(2) Special agents;(3) Immigration inspectors (seaport

operations only);(4) Adjudications officers and

deportation officers when in theuniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections(seaport operations only);

(5) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(6) Immigration officers who need theauthority to patrol the border undersection 287(a)(3) of the Act in order toeffectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner.

(c) Power and authority to arrest—(1)Arrests of aliens under section 287(a)(2)of the Act for immigration violations.The following immigration officers whohave successfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the arrest power conferred bysection 287(a)(2) of the Act and inaccordance with § 287.8(c):

(i) Border patrol agents, includingaircraft pilots;

(ii) Special agents;(iii) Deportation officers;(iv) Immigration inspectors;(v) Adjudications officers;(vi) Supervisory and managerial

personnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(vii) Immigration officers who needthe authority to arrest aliens undersection 287(a)(2) of the Act in order toeffectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner.

(2) Arrests of persons under section287(a)(4) of the Act for feloniesregulating the admission or removal ofaliens. The following immigrationofficers who have successfullycompleted basic immigration lawenforcement training are herebyauthorized and designated to exercise


the arrest power conferred by section287(a)(4) of the Act and in accordancewith § 287.8(c):


(ii) Special agents;(iii) Deportation officers;(iv) Immigration inspectors;(v) Adjudications officers;(vi) Supervisory and managerial


(vii) Immigration officers who needthe authority to arrest persons undersection 287(a)(4) of the Act in order toeffectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner with the approval of theDeputy Attorney General.

(3) Arrests of persons under section287(a)(5)(A) of the Act for any offenseagainst the United States. The followingimmigration officers who havesuccessfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the arrest power conferred bysection 287(a)(5)(A) of the Act and inaccordance with § 287.8(c):


(ii) Special agents;(iii) Deportation officers;(iv) Immigration inspectors

(permanent full-time immigrationinspectors only);

(v) Adjudications officers when in theuniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections;

(vi) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(vii) Immigration officers who needthe authority to arrest persons undersection 287(a)(5)(A) of the Act in orderto effectively accomplish theirindividual missions and who aredesignated, individually or as a class, bythe Commissioner with the approval ofthe Deputy Attorney General.

(4) Arrests of persons under section287(a)(5)(B) of the Act for any felony. (i)Section 287(a)(5)(B) of the Actauthorizes designated immigrationofficers, as listed in paragraph (c)(4)(iii)of this section, to arrest persons,without warrant, for any felonycognizable under the laws of the UnitedStates if:

(A) The immigration officer hasreasonable grounds to believe that theperson to be arrested has committed oris committing such a felony;

(B) The immigration officer isperforming duties relating to the

enforcement of the immigration laws atthe time of the arrest;

(C) There is a likelihood of the personescaping before a warrant can beobtained for his or her arrest; and

(D) The immigration officer has beencertified as successfully completing atraining program that covers sucharrests and the standards with respect tothe enforcement activities of the Serviceas defined in § 287.8.

(ii) The following immigration officerswho have successfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the arrest power conferred bysection 287(a)(5)(B) of the Act and inaccordance with § 287.8(c):

(A) Border patrol agents, includingaircraft pilots;

(B) Special agents;(C) Deportation officers;(D) Immigration inspectors

(permanent full-time immigrationinspectors only);

(E) Adjudications officers when in theuniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections;

(F) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(G) Immigration officers who need theauthority to arrest persons under section287(a)(5)(B) of the Act in order toeffectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner with the approval of theDeputy Attorney General.

(iii) Notwithstanding theauthorization and designation set forthin paragraph (c)(4)(ii) of this section, noimmigration officer is authorized tomake an arrest for any felony under theauthority of section 287(a)(5)(B) of theAct until such time as he or she hasbeen certified by the Director ofTraining as successfully completing atraining course encompassing sucharrests and the standards forenforcement activities as defined in§ 287.8. Such certification shall be validfor the duration of the immigrationofficer’s continuous employment, unlessit is suspended or revoked by theCommissioner or the Commissioner’sdesignee for just cause.

(5) Arrests of persons under section274(a) of the Act who bring in,transport, or harbor certain aliens, orinduce them to enter. (i) Section 274(a)of the Act authorizes designatedimmigration officers, as listed inparagraph (c)(5)(ii) of this section, toarrest persons who bring in, transport,or harbor aliens, or induce them to enter

the United States in violation of law.When making an arrest, the designatedimmigration officer shall adhere to theprovisions of the enforcement standardgoverning the conduct of arrests in§ 287.8(c).

(ii) The following immigration officerswho have successfully completed basicimmigration law enforcement trainingare authorized and designated toexercise the arrest power conferred bysection 274(a) of the Act:

(A) Border patrol agents, includingaircraft pilots;

(B) Special agents;(C) Deportation officers;(D) Immigration inspectors;(E) Adjudications officers when in the

uniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections;

(F) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(G) Immigration officers who need theauthority to arrest persons under section274(a) of the Act in order to effectivelyaccomplish their individual missionsand who are designated, individually oras a class, by the Commissioner with theapproval of the Deputy AttorneyGeneral.

(6) Custody and transportation ofpreviously arrested persons. In additionto the authority to arrest pursuant to awarrant of arrest in paragraph (e)(3)(iv)of this section, detention enforcementofficers who have successfullycompleted basic immigration lawenforcement training are herebyauthorized and designated to take andmaintain custody of and transport anyperson who has been arrested by animmigration officer pursuant toparagraphs (c)(1) through (c)(5) of thissection.

(d) Power and authority to conductsearches. The following immigrationofficers who have successfullycompleted basic immigration lawenforcement training are herebyauthorized and designated to exercisethe power to conduct searches conferredby section 287(c) of the Act:


(2) Special agents;(3) Deportation officers;(4) Immigration inspectors;(5) Adjudications officers;(6) Supervisory and managerial


(7) Immigration officers who need theauthority to conduct searches undersection 287(c) of the Act in order to


effectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner.

(e) Power and authority to executewarrants—(1) Search warrants. Thefollowing immigration officers whohave successfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the power conferred by section287(a) of the Act to execute a searchwarrant:


(ii) Special agents;(iii) Supervisory and managerial

personnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph, and

(iv) Immigration officers who need theauthority to execute search warrantsunder section 287(a) of the Act in orderto effectively accomplish theirindividual missions and who aredesignated, individually or as a class, bythe Commissioner with the approval ofthe Deputy Attorney General.

(2) Issuance of arrest warrants forimmigration violations. A warrant ofarrest may be issued only by thefollowing immigration officers:

(i) District directors (except foreign);(ii) Deputy district directors (except

foreign);(iii) Assistant district directors for

investigations;(iv) Deputy assistant district directors

for investigations;(v) Assistant district directors for

deportation;(vi) Deputy assistant district directors

for deportation;(vii) Assistant district directors for

examinations;(viii) Deputy assistant district

directors for examinations;(ix) Officers in charge (except foreign);(x) Assistant officers in charge (except

foreign);(xi) Chief patrol agents;(xii) Deputy chief patrol agents;(xiii) Associate chief patrol agents;(xiv) Assistant chief patrol agents;(xv) Patrol agents in charge;(xvi) The Assistant Commissioner,

Investigations;(xvii) Institutional Hearing Program

directors;(xviii) Area port directors;(xix) Port directors; or(xx) Deputy port directors.(3) Service of warrant of arrests for

immigration violations. The followingimmigration officers who havesuccessfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the power pursuant to section

287(a) of the Act to execute warrants ofarrest for administrative immigrationviolations issued under section 236 ofthe Act or to execute warrants ofcriminal arrest issued under theauthority of the United States:


(ii) Special agents;(iii) Deportation officers;(iv) Detention enforcement officers

(warrants of arrest for administrativeimmigration violations only);

(v) Immigration inspectors;(vi) Adjudications officers when in

the uniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections;

(vii) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(viii) Immigration officers who needthe authority to execute arrest warrantsfor immigration violations under section287(a) of the Act in order to effectivelyaccomplish their individual missionsand who are designated, individually oras a class, by the Commissioner, forwarrants of arrest for administrativeimmigration violations, and with theapproval of the Deputy AttorneyGeneral, for warrants of criminal arrest.

(4) Service of warrant of arrests fornon-immigration violations. Thefollowing immigration officers whohave successfully completed basicimmigration law enforcement trainingare hereby authorized and designated toexercise the power to execute warrantsof criminal arrest for non-immigrationviolations issued under the authority ofthe United States:


(ii) Special agents;(iii) Deportation officers;(iv) Supervisory and managerial


(v) Immigration officers who need theauthority to execute warrants of arrestfor non-immigration violations undersection 287(a) of the Act in order toeffectively accomplish their individualmissions and who are designated,individually or as a class, by theCommissioner with the approval of theDeputy Attorney General.

(f) Power and authority to carryfirearms. The following immigrationofficers who have successfullycompleted basic immigrationenforcement training are herebyauthorized and designated to exercisethe power conferred by section 287(a) ofthe Act to carry firearms provided that

they are individually qualified bytraining and experience to handle andsafely operate the firearms they arepermitted to carry, maintain proficiencyin the use of such firearms, and adhereto the provisions of the enforcementstandard governing the use of force in§ 287.8(a):


(2) Special agents;(3) Deportation officers;(4) Detention enforcement officers;(5) Immigration inspectors;(6) Adjudications officers when in the

uniform of an immigration inspectorand performing inspections orsupervising other immigrationinspectors performing inspections;

(7) Supervisory and managerialpersonnel who are responsible forsupervising the activities of thoseofficers listed in this paragraph; and

(8) Immigration officers who need theauthority to carry firearms under section287(a) of the Act in order to effectivelyaccomplish their individual missionsand who are designated, individually oras a class, by the Commissioner with theapproval of the Deputy AttorneyGeneral.


§ 287.7 Detainer provisions under section287(d)(3) of the Act.

(a) Detainers in general. Detainers areissued pursuant to sections 236 and 287of the Act and this chapter. Anyauthorized Service official may at anytime issue a Form I–247, ImmigrationDetainer-Notice of Action, to any otherFederal, State, or local law enforcementagency. A detainer serves to adviseanother law enforcement agency that theService seeks custody of an alienpresently in the custody of that agency,for the purpose of arresting andremoving the alien. The detainer is arequest that such agency advise theService, prior to release of the alien, inorder for the Service to arrange toassume custody, in situations whengaining immediate physical custody iseither impracticable or impossible.

(b) Authority to issue detainers. Thefollowing officers are authorized toissue detainers:


(2) Special agents;(3) Deportation officers;(4) Immigration inspectors;(5) Adjudications officers;(6) Supervisory and managerial


(7) Immigration officers who need theauthority to issue detainers under


section 287(d)(3) of the Act in order toeffectively accomplish their individualmissions and who are designatedindividually or as a class, by theCommissioner.

(c) Availability of records. In order forthe Service to accurately determine thepropriety of issuing a detainer, servinga notice to appear, or taking custody ofan alien in accordance with this section,the criminal justice agency requestingsuch action or informing the Service ofa conviction or act that renders an alieninadmissible or removable under anyprovision of law shall provide theService with all documentary recordsand information available from theagency that reasonably relates to thealien’s status in the United States, orthat may have an impact on conditionsof release.

(d) Temporary detention at Servicerequest. Upon a determination by the

Service to issue a detainer for an aliennot otherwise detained by a criminaljustice agency, such agency shallmaintain custody of the alien for aperiod not to exceed 48 hours,excluding Saturdays, Sundays, andholidays in order to permit assumptionof custody by the Service.

(e) Financial responsibility fordetention. No detainer issued as a resultof a determination made under thischapter shall incur any fiscal obligationon the part of the Service, until actualassumption of custody by the Service,except as provided in paragraph (d) ofthis section.

PART 299—IMMIGRATION FORMS



149. Section 299.1 is amended by:a. Revising the entries for Forms ‘‘I–

147’’, ‘‘I–205’’, ‘‘I–246’’, ‘‘I–247’’, ‘‘I–259’’, ‘‘I–284’’, ‘‘I–286’’, ‘‘I–291’’, ‘‘I–296’’, ‘‘I–408’’, ‘‘I–541’’, ‘‘I–589’’, ‘‘I–775’’, ‘‘I–851’’, and ‘‘I–851A’’;

b. Removing the entries for Forms I–122’’, ‘‘I–221’’, ‘‘I–259C’’, ‘‘I–290A’’, and‘‘I–444’’, and by

c. Adding the entries for Forms ‘‘I–94T’’, ‘‘I–99’’, ‘‘I–148’’, ‘‘I–160’’, ‘‘I–210’’, ‘‘I–213’’, ‘‘I–217’’, ‘‘I–220A’’, ‘‘I–220B’’, ‘‘I–241’’, ‘‘I–261’’, ‘‘I–270’’, ‘‘I–275’’, ‘‘I–294’’, ‘‘I–407’’, ‘‘I–546’’, ‘‘I–701’’, ‘‘I–770’’, ‘‘I–771’’, ‘‘I–826’’, ‘‘I–827B’’, ‘‘I–860’’, ‘‘I–862’’, ‘‘I–863’’, ‘‘I–867AB’’, and ‘‘I–869’’ in propernumerical sequence, to the listing offorms, to read as follows:

§ 299.1 Prescribed forms.

* * * * *

Form No. Edition date Title

* * * * * * *

I–94T ................................. 09–22–87 ......................... Arrival-Departure Record (Transit without visa).

* * * * * * *

I–99 ................................... 04–01–97 ......................... Notice of Revocation and Penalty.

* * * * * * *

I–147 ................................. 04–01–97 ......................... Notice of Temporary Inadmissibility to U.S.I–148 ................................. 04–01–97 ......................... Notice of Permanent Inadmissibility.I–160 ................................. 04–01–97 ......................... Notice of Parole/Lookout Intercept.

* * * * * * *

I–205 ................................. 04–01–97 ......................... Warrant of Removal.I–210 ................................. 04–01–97 ......................... Notice of Action—Voluntary Departure.

* * * * * * *

I–213 ................................. 04–01–97 ......................... Record of Deportable/Inadmissible Alien.I–217 ................................. 04–01–97 ......................... Information for Travel Document or Passport.I–220A .............................. 04–01–97 ......................... Order of Release on Recognizance.I–220B .............................. 04–01–97 ......................... Order of Supervision.

* * * * * * *

I–241 ................................. 04–01–97 ......................... Request for Travel Document to Country Designated by Alien.

* * * * * * *

I–246 ................................. 04–01–97 ......................... Application for Stay of Removal.I–247 ................................. 04–01–97 ......................... Immigration Detainer—Notice of Action.I–259 ................................. 04–01–97 ......................... Notice to Detain, Deport, Remove, or Present Aliens.

* * * * * * *

I–261 ................................. 04–01–97 ......................... Additional Charges of Removability.I–270 ................................. 04–01–97 ......................... Request for Consent to Return Person to Canada.I–275 ................................. 04–01–97 ......................... Withdrawal of Application/Consular Notification.I–284 ................................. 04–01–97 ......................... Notice to Transportation Line Regarding Deportation and Detention Expenses of De-

tained Alien.I–286 ................................. 04–01–97 ......................... Notification to Alien of Conditions of Release or Detention.

* * * * * * *

I–291 ................................. 04–01–97 ......................... Decision on Application for Status as Permanent Resident.

* * * * * * *

I–294 ................................. 04–01–97 ......................... Notice of Country to Which Deportation has been Directed and Penalty for Reentrywithout Permission.

I–296 ................................. 04–01–97 ......................... Notice to Alien Ordered Removed.

* * * * * * *

I–407 ................................. 04–01–97 ......................... Abandonment by Alien of Status as Lawful Permanent Resident.I–408 ................................. 04–01–97 ......................... Application to Pay Off or Discharge Alien Crewman.


Form No. Edition date Title

* * * * * * *

I–541 ................................. 04–01–97 ......................... Order of Denial of Application for Extension of Stay or Student Employment or StudentTransfer.

* * * * * * *

I–546 ................................. 04–01–97 ......................... Order to Appear—Deferred Inspection.

* * * * * * *

I–589 ................................. 04–01–97 ......................... Application for Asylum and Withholding of Removal.

* * * * * * *

I–701 ................................. 04–01–97 ......................... Detainee Transfer Worksheet.

* * * * * * *

I–770 ................................. 04–01–97 ......................... Notice of Rights and Request for Disposition.I–771 ................................. 04–01–97 ......................... Bond Computation Worksheet.I–775 ................................. 04–01–97 ......................... Visa Waiver Pilot Program Agreement.

* * * * * * *

I–826 ................................. 04–01–97 ......................... Notice of Rights and Request for DispositionI–851 ................................. 04–01–97 ......................... Notice of Intent to Issue Final Administrative Removal Order.I–851A .............................. 04–01–97 ......................... Final Administrative Removal Order.

* * * * * * *

I–860 ................................. 04–01–97 ......................... Notice and Order of Expedited Removal.I–862 ................................. 04–01–97 ......................... Notice to Appear.I–863 ................................. 04–01–97 ......................... Notice of Referral to Immigration Judge.I–867AB ............................ 04–01–97 ......................... Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.I–869 ................................. 04–01–97 ......................... Record of Negative Credible Fear Finding and Request for Review by Immigration

Judge.

* * * * * * *

150. Section 299.5 is amended by:a. Removing the entry for Form ‘‘I–259C’’; and byb. Revising the entries for Forms ‘‘I–246’’ and ‘‘I–589’’, and to read as follows:

§ 299.5 Display of control numbers.

* * * * *

INS form no. INS form title

CurrentlyassignedOMB con-

trol no.

* * * * * * *

I–246 Application for Stay of Removal ............................................................................................................... 1115–0055* * * * * * *

I–589 Application for Asylum and Withholding of Removal ............................................................................... 1115–0086* * * * * * *

PART 316—GENERALREQUIREMENTS FORNATURALIZATION



152. Section 316.5 is amended byrevising paragraph (c)(3) to read asfollows:

§ 316.5 Residence in the United States.

* * * * *(c) * * *(3) Removal and return. Any

departure from the United States whileunder an order of removal (includingpreviously issued orders of exclusion ordeportation) terminates the applicant’s

status as a lawful permanent residentand, therefore, disrupts the continuity ofresidence for purposes of this part.* * * * *

PART 318—PENDING REMOVALPROCEEDINGS

153. The heading for part 318 isrevised as set forth above.




§ 318.1 Warrant of arrest.

For the purposes of section 318 of theAct, a notice to appear issued under 8

CFR part 239 (including a chargingdocument issued to commenceproceedings under sections 236 or 242of the Act prior to April 1, 1997) shallbe regarded as a warrant of arrest.

PART 329—SPECIAL CLASSES OFPERSONS WHO MAY BENATURALIZED: NATURALIZATIONBASED UPON ACTIVE DUTY SERVICEIN THE UNITED STATES ARMEDFORCES DURING SPECIFIEDPERIODS OF HOSTILITIES




159 Section 329.2 is amended byrevising paragraph (e)(3) to read asfollows:

§ 329.2 Eligibility.

* * * * *(e) * * *(3) The applicant may be naturalized

even if an outstanding notice to appearpursuant to 8 CFR part 239 (includinga charging document issued tocommence proceedings under sections236 or 242 of the Act prior to April 1,1997) exists.

Dated: February 26, 1997.Janet Reno,Attorney General.[FR Doc. 97–5250 Filed 2–28–97; 3:29 pm]BILLING CODE 4410–10–P

Documents

10312 Federal Register /Vol. 62, No. 44/Thursday, March 6 ... · 10312 Federal Register/Vol. 62, No. 44/Thursday, March 6, 1997/Rules and Regulations DEPARTMENT OF JUSTICE ... No