DOCUMENT NUMBER: FR 1-05

FEDERAL REGISTER CITE: 70 FR 661

DATE OF PUBLICATION: January 5, 2005

BILLING CODE: 4410-10

DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 241

[ICE No. 2317-04]

RIN 1653-AA41

DEPARTMENT OF JUSTICE

8 CFR Parts 1240 and 1241

[EOIR No. 146F; AG Order No. 2746-2004]

RIN 1125-AA50

Execution of Removal Orders; Countries to Which Aliens May Be Removed

AGENCY: United States Immigration and Customs Enforcement, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.

ACTION: Final rules.

SUMMARY: The Secretary of Homeland Security and the Attorney General publish these final rules to amend their respective agencies' regulations pertaining to removal of aliens.

    With the Department of Homeland Security final rule, the Secretary of Homeland Security adopts as final, without substantial change, the proposed regulations published at 69 FR 42910 (July 19, 2004). The Department of Homeland Security amends its regulations to clarify that acceptance by a country is not required under specific provisions of section 241(b) of the Immigration and Nationality Act in order to remove an alien to that country, and that a “country” for the purpose of removal is not premised on th e existence or functionality of a government in that country. This rule further clarifies the countries to which an alien may be removed and the situations in which the Secretary of Homeland Security will remove an alien to an alternative or additional country. Additionally, this rule provides technical changes as a result of amendments to the Immigration and Nationality Act by the Homeland Security Act of 2002.

    With the Department of Justice final rule, the Attorney General adopts as final, without substantial change, the proposed regulations at 69 FR 42911 (July 19, 2004). The Department of Justice clarifies the procedure for an alien to designate the country to which he or she would prefer to be removed, provides that the immigration judge shall inform any alien making such a designation that he or she may be removed to another country under section 241(b) of the Immigration and Nationality Act in the discretion of the Secretary of Homeland Security in effecting the foreign policy of the United States, and clarifies the effect of an identification of a country for removal in an immigration judge's order of removal from the United States. This rule clarifies that acceptance by a country is not a factor to be considered by the immigration judge in identifying a country or countries of removal in the administrative order of removal. The Department of Justice also makes technical changes to eliminate unnecessary provi sions and update references to reflect the enactment of the Homeland Security Act of 2002.

DATES: These final rules are effective February 4, 2005.

FOR FURTHER INFORMATION CONTACT: If you have questions regarding the Department of Homeland Security's final rule, call: Mark Lenox, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 801 I Street, NW., Suite 800, Washington, DC 20536, telephone (202) 616-9166 (not a toll-free call).

    If you have questions regarding the Department of Justice's final rule, call: Mary Beth Keller, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

A. The Purpose of the Final Rules

B. Discussion of Comments

    1. Promulgation of the Rules

    2. Definition of the Term “Country”

    3. Acceptance under Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2)

    4. Acceptance, Judicial Precedent, and Ratification by Congress

    5. Lack of Acceptance Requirement and Effect on Other Provisions of the Act

    6. Office of Legal Counsel Opinion

    7. Agency Operating Instructions

    8. Removal of Aliens to Countries without Functioning Governments

    9. Foreign Policy Considerations

    10. Identifying Country of Removal at Removal Hearing for Protection Requests

    11. Modification of Certain Regulations

    12. Miscellaneous CommentsC. Joint and Independent Notice of Rulemaking

Department of Homeland Security

PART 241--Apprehension and Detention of Aliens Ordered Removed.

Department of Justice

PART 1240--Proceedings to Determine Removability of Aliens in the United States.

PART 1241--Apprehension and Detention of Aliens Ordered Removed.

    On July 19, 2004, the Department of Homeland Security (DHS) and the Department of Justice (Justice) jointly published proposed rules with request for comments entitled “Execution of Removal Orders; Countries to Which Aliens May Be Removed” (69 FR 42901). In response to the proposed rulemaking, DHS received a total of 18 separate timely submissions and Justice received a total of 23 separate timely submissions. The commenters included various nongovernmental organizations (NGOs), private attorneys, and other interested individuals. Many of the submissions were duplicates sent to both DHS and Justice that either used or otherwise substantially adopted one set of comments submitted collectively by a group of NGOs. The majority of these comments did not differentiate between the authority of DHS or Justice. Accordingly, to the extent that these rules address two independent sources of authority in this area, the comments are addressed by the appropriate agency with authority over the area raised by the commenter. Additionally, because many of the comments submitted to both DHS and Justice are similar and endorse the submissions of other commenters, the Secretary and the Attorney General address the responses by topic rather than by referencing each specific commenter and comment.

    DHS and Justice hereby incorporate the Supplementary Information contained in the Notice of Proposed Rulemaking, 69 FR 42901, 42902-09, and reiterate that the Secretary and the Attorney General have undertaken to publish these changes in their respective regulations in a single document as a convenience to the public. The Secretary and the Attorney General are each acting independently and within their respective statutory delegations of authority in separately amending the rules of their respective Departm ents as set forth in these final rules. The rules of DHS and Justice will continue to separately implement the provisions of the Immigration and Nationality Act (Act) within their respective jurisdictions.

A. The Purpose of the Final Rule

    Section 241(b)(1) and (2) of the Act, 8 U.S.C. 1231(b)(1) and (2), provides the process for determining the countries to which an alien 1/ may be removed after a hearing before an immigration judge, the issuance of a final order finding that the alien is removable from the United States and not eligible for relief from removal, and disposition of any administrative and judicial appeals

    Section 241(b)(1) of the Act, 8 U.S.C. 1231(b)(1), relates to arriving aliens 1/ whom DHS has placed in removal proceedings, a relatively small category because most arriving aliens are subject to expedited removal under section 235 of the Act, 8 U.S.C. 1225. It should be noted that the authority to initiate expedited removal proceedings in certain circumstances has recently been expanded. See Notice Designating Aliens for Expedited Removal, 69 FR 48877 (August 11, 2004) (authorizing expedited removal proceedings for aliens present in the United States without having been admitted or p aroled, who are encountered within 100 miles of the border, and who cannot establish that they have been physically present in the United States continuously for the preceding fourteen days); Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 (November 13, 2002) (authorizing expedited removal proceedings for certain aliens who arrive in the United States by sea, who are not admitted or paroled, and who have not been cont inuously

physically present in the United States for the preceding two years). Section 241(b)(1) of the Act provides a two-step process to determine the country of removal for an arriving alien: (1) The country from which the alien boarded a conveyance to the United States; or (2) an alternative country, such as the country of citizenship or birth.

    Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), applies in the far more common circumstance of the removal of other (i.e., non-arriving) aliens. Section 241(b)(2) of the Act provides a three-step process to determine the country of removal for these aliens: (1) The country designated by the alien; (2) an alternative country of which the alien is a subject, national, or citizen, with certain conditions; and (3) an additional country, such as the country from which the alien boarded a conveyance to the Uni ted States or the country of the alien's residence or birth.

    Sections 241(b)(1) and (2) of the Act use the terms “country” and “accept” without any statutory definition. Some subparagraphs within section 241(b)(2) of the Act state that the alien is to be removed to a “country” that will “accept” the alien, while other provisions do not state that a “country” must “accept” the alien. The United States courts of appeals have differed on the meaning and effect of these terms. Compare Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 S.Ct. 1407 (2004) (No. 03 -674), with Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), petition for reh'g pending (No. 03-35096, 9th Cir.). These rules implement the provisions of the Act and amend the regulations of DHS and Justice in response to this intercircuit conflict.

B. Discussion of Comments

    The following paragraphs will address each substantive issue raised in comments received by DHS and Justice. This discussion will not describe in detail the provisions outlined in the rules, but rather will address only those provisions relevant to the comments. Commenters frequently addressed identical issues in their comments, and these issues have been consolidated for the response. This discussion has been organized into sections based upon the themes of comments for the convenience of the reader.

1. Promulgation of the Rules

    Many commenters questioned the authority of the Secretary and the Attorney General to promulgate these final rules. Commenters questioned whether the rules had separation of power implications and whether the rules were ultra vires in light of the litigation pending around the country regarding the interpretation of section 241 of the Act, 8 U.S.C. 1231, and the language of the statute. Compare Jama, 329 F.3d 630 (8th Cir. 2003), with Ali, 346 F.3d 873 (9th Cir. 2003). In these comments, the commenters invo ke the oft-quoted statement of Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), that it is “emphatically the province and duty of the judicial department to say what the law is.”

    These comments fail to appreciate the nature of rulemaking within the structure of the federal law. Accordingly, the Attorney General and the Secretary must reiterate basic principles of separation of powers and administrative law that govern rulemakings. The three Branches of government operate within defined spheres, but those spheres sometimes overlap. Congress enacts statutes, and delegates to the Executive Branch the authority to make rules that interpret and fill in the administrative details of those statutes. The interpretation of the statutes in these rules are given due deference by the courts when cases present questions of statutory interpretation. INS v. Aguirre-Aguirre, 526 U.S. 415, 423-25 (1999); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1983). The invocation of the judicial power, however, does not stay the processes of government; Congress may amend the statute at any time. Similarly, the Executive Branch may amend the regulations under the statute at any time. Not infrequently, these amendments result in different disposition of the cases pending before the courts. See, e.g., Bell v. Wolfish, 441 U.S. 520, 549-52 (1979) (amendment of Bureau of Prisons regulations while constitutional challenge to prior regulations pending in Supreme Court); see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996) (amendment to the regulations interpreting “interest” as used in the National Bank Act while issue of what constituted interest was in litigation); cf . Sanks v. Georgia, 401 U.S. 144 (1971) (amendment to state statute while constitutional challenge to prior statute pending in Supreme Court). In fact, in Smiley, the Court specifically stated: “That it was litigation that disclosed the need for the regulation is irrelevant.” Smiley, 517 U.S. at 741. As these and a number of other cases make clear, exercise of authority granted to make rules pending litigation is both an acceptable and a long-standing practice.

    The commenters suggest that the Executive's amendment is an interference with the authority of the courts. However, as the District of Columbia Circuit has pointed out,intent is irrelevant: no authority supports the proposition that a rule is arbitrary and capricious merely because it abrogates a circuit court decision. Quite to the contrary, “regulations promulgated to clarify disputed interpretations of a regulation are to be encouraged. Tidying-up a conflict in the circuits with a clarifying regulation p ermits a nationally uniform rule without the need for the Supreme Court to essay the meaning of every debatable regulation.” Pope v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993) (citation and internal quotation marks omitted).

National Mining Association v. Department of Labor, 292 F.3d 849 (D.C. Cir. 2002). With this in mind, the Attorney General and the Secretary of Homeland Security have undertaken to resolve the conflict through regulation.

    Additionally, as noted in the proposed rules, the statute does not define the terms “country” and “acceptance.” Given the exclusive province of the Executive in that vast external realm of determining when a “country” has “accepted” its proffer of an alien, the Attorney General and the Secretary, as the respective delegates of the President, are providing the interpretation that conforms with the foreign policy of the United States. These regulations are, thus, wholly within their authority to promulgate.

    One commenter stated that it “makes little sense for the government to expend significant staff time and expense to promulgate regulations that could need retraction or extensive overhauling in a matter of months, depending upon the Supreme Court's determination.” The Secretary and the Attorney General appreciate the commenters' suggestion but have determined that promulgation of these rules is necessary at this time.

    Accordingly, the Secretary and the Attorney General promulgate the regulations as proposed, with minor changes as noted below.

2. Definition of the Term “Country”

    Some commenters questioned the interpretation of the Secretary and the Attorney General of section 241(b) of the Act, 8 U.S.C. 1231(b), and articulated their position that the term “country” as used in that section is premised on the existence or functionality of a government in that country based on “longstanding judicial interpretations.” In support of their argument, the commenters rely on three cases that are far from dispositive of the issue. Further, the difference in terminology used within section 2 41(b)(2) of the Act and Supreme Court precedent support the interpretation of the Secretary and Attorney General.

    First, the commenters cite three cases in support of their contention that “longstanding judicial interpretations” of “country” require the existence or functionality of a government. In all three cases cited by the commenters, the courts found that the United States could deport the aliens to the proposed country of removal, but whether “country” requires the existence or functionality of a government was not specifically at issue in any of the cases. In Chuen v. Esperdy, 285 F.2d 353 (2d Cir. 1960), the S econd Circuit addressed whether “Hong Kong, a colony of the United Kingdom,” was a country for purposes of the removal statute. In a per curiam opinion of two paragraphs finding in favor of the government, the court concluded “we think that any place possessing a government with authority to accept an alien deported from the United States can qualify as a “country” under the statute.” Id. That issue is not in dispute; a place possessing a government with authority to accept an alien deported from the United States “can” qualify as a country. However, the converse does not flow from this conclusion, i.e., that a place not possessing a government with authority to accept an alien deported from the United States cannot qualify as a country for purposes of section 241(b) of the Act. One conclusion simply does not flow from the other as a matter of logic. In fact, the court in Chuen was not faced with, nor did it address, the latter question. Accordingly, Chuen does not support the commenters' position.

    Similarly, Delany v. Moraitis, 136 F.2d 129 (4th Cir. 1943), finding in favor of the government that an alien (a Greek citizen) could be deported to the custody of the Greek government in exile in England, does not support the proposition that “country” under section 241(b) of the Act requires the existence or functionality of a government. In Delany, it was not possible to deport the alien to Greece because it was under German control at the time. Id. at 130. The court framed the issue in Delany as follows : “The question presented by the appeal, therefore, is whether, under the statute, the [alien] must be allowed to remain in this country, where he has no right to remain under our laws, or whether the statute will be complied with if he be returned to the political dominion and control of the country from which he came. We think the latter is the case.” Id. Commenters, in citing Delany, focus on the following statement in support of their proposition--”a man's `country' is more than the territory in which i ts people live. The term is used generally to indicate the state, the organization of social life which exercises sovereign power in behalf of the people.” Id. at 130. The fact that a country is “more than” the territory in which its people live--especially considering the unique factual circumstance of the case involving a government in exile recognized by the United States--does not exclude that a country is “at least” the territory in which its people live. As such, Delany does not support the propositio n that “country” under 241(b) of the Act requires the existence or functionality of a government; in fact, as with Chuen, Delany simply did not address the specific issue of whether the term “country” in the removal provision requires the existence or functionality of a government. Accordingly, Delany does not support the commenters' position. It should be noted that the predecessor to section 241(b)(2)(F) of the Act was enacted post-Delany to allow for removal to governments in exile and that the Board of Immigration Appeals (Board) in Matter of Linnas, 19 I&N Dec. 302, 305 (BIA 1985), found that Delany was no longer effective law for the proposition that “country” can be construed to encompass a government in exile.

    Finally, contrary to the commenters' suggestion, Rogers v. Sheng, 280 F.2d 663, 664-65 (D.C. Cir. 1960), finding in favor of the government that Formosa was a country for purposes of removal because it had a government that had “undisputed control of the island,” is also not dispositive of the current issue. Formosa had been ceded by China to Japan in 1895. Id. at 664. The alien argued that Formosa was neither a country nor part of any country. Id. at 663. The court described the status of Formosa as follow s: “Following World War II, Japan surrendered all claims of sovereignty over Formosa. But in the view of our State Department, no agreement has “purported to transfer the sovereignty of Formosa to (the Republic of) China.” At the present time, we accept the exercise of Chinese authority over Formosa, and recognize the Government of the Republic of China * * * as the legal Government of China.” Id. With this background in mind, the commenters' reliance on the fact that the court found that Formosa was a coun try because there was “a government on Formosa which has undisputed control of the island,” id., and therefore that the existence or functionality of a government is a requirement under section 241(b) of the Act, is misplaced. As with Chuen and Delany, the court in Rogers did not address the precise question of whether the term “country” under the predecessor to section 241(b) of the Act required the existence or functionality of a government. The court simply addressed the question of whether, as espoused by the government, Formosa was a country under the predecessor to section 241(b) of the Act based on the facts of the case, and the court ruled in favor of the government. Accordingly, the commenters' assertion that these three cases are “longstanding judicial interpretations” demonstrating that the term “country” requires the existence or functionality of a government is incorrect. While the cases were decided decades ago (one in 1943, and two in 1960) and they are “longstanding” in that sense, the remaind er of the commenters” proposition, i.e., that these cases demonstrate that the term “country” requires the existence or functionality of a government, does not follow from these cases. In fact, the cases did not directly address the issue of whether the term “country” as used in section 241(b) of the Act requires existence or functionality of a government. As such, the commenters' statement that the regulations are ultra vires because they contravene established precedent is simply incorrect.

    Second, the specific language chosen by Congress within section 241(b) of the Act demonstrates that “country” does not require the existence or functionality of a government. It is settled that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardozo-Fonseca, 480 U.S. 421, 432 (1987) (quoting Russello v. United Sta tes, 464 U.S. 16, 23 (1983)). A review of section 241(b) of the Act demonstrates that Congress included and excluded particular language, not only within the same statute, but within the same subsection. Specifically, section 241(b)(2) of the Act contains references to both “country” and to the “government of the country,” the latter term being used in the provisions discussing acceptance. Accordingly, the text of section 241(b)(2) of the Act itself supports the fact that “country” refers to a geographic re gion, without regard to the existence of functionality of a government. If Congress had intended the term “country” to also encompass an existing or functioning government, it would have been unnecessary for Congress to have also used “government of the country” within the same subsection as “country.” The fact that Congress deliberately chose both specific terms within such close proximity demonstrates that each term has a separate and distinct meaning, i.e., the term “country” does not depend on the exist ence or functionality of a government, but the term “government of the country,” used in the provision addressing acceptance, does encompass a “government.” Furthermore, the position of the Secretary and Attorney General is supported by the Supreme Court's decision in Smith v. United States, 507 U.S. 197 (1993). While construing the Federal Tort Claims Act (FTCA) in Smith, the Court noted that the “commonsense meaning” of the term “country” is “`[a] region or tract of land.”' Id. at 201. Indeed, the Court h eld in that case that Antarctica is a “country” within the meaning of the FTCA “even though it has no recognized government.” Id. The Court in Smith did acknowledge “that this is not the only possible interpretation of the term, and it is therefore appropriate to examine other parts of the statute before making a final determination.” Id. As stated above, examining the other parts of section 241(b) of the Act mandates the conclusion that “country” does not depend on the existence or functionality of a gover nment; if it did, other provisions within the same subsection would be rendered meaningless, a result to be avoided in statutory construction. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2002) (“`a statute must, if possible, be construed in such fashion that every word has some operative effect”') (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992)); TRW, Inc. v. Andrews, 534 U.S. 19, 30 (2001) (“[w]e are “reluctant to treat statutory terms as surplusage in any setting”') ( quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

    For these reasons, the Secretary and Attorney General reject the commenters' suggestion that the term “country” in section 241(b)(2) of the Act requires the existence or functionality of a government. Accordingly, the regulations in this area are being promulgated as proposed.