8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, part 242 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    1. The authority citation for part 242 is revised to read as follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252a, 1252b, 1254, 1362; 8 CFR part 2.

    2. In part 242, a new section 242.25 is added to read as follows:

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

    (a) Definitions . As used in this section-- Deciding Service officer means a district director, chief patrol agent, or another immigration officer designated by a district director or chief patrol agent, who is not the same person as the issuing Service officer. Issuing Service officer means any Service officer listed in § 242.1(a) as authorized to issue orders to show cause. Prima facie claim means a claim that, on its face and consistent with the evidence in the record of proceeding, demonstrates an alien's present statutory eligibility for a specific form of relief from deportation under the Immigration and Nationality Act ("the Act").

    (b) Preliminary consideration and Notice of Intent to issue a Final Administrative Deportation Order; commencement of proceedings . (1) Basis of Service charge . An issuing Service officer shall cause to be served upon an alien a Notice of Intent to issue a Final Administrative Deportation Order (Notice of Intent, Form I-851), if the officer is satisfied that there is sufficient evidence, based upon questioning of the alien by an immigration officer and upon any other evidence obtained, to support a finding that the individual:

    (i) Is an alien;

    (ii) Has not been lawfully admitted for permanent residence;

    (iii) Has been convicted (as demonstrated by one or more of the sources listed in § 3.41 of this chapter) of an aggravated felony and such conviction has become final;

    (iv) Is deportable under section 241(a)(2)(A)(iii) of the Act; and

    (v) Does not appear statutorily eligible for any relief from deportation under the Act.

    (2) Notice . (i) Deportation proceedings under section 242A(b) of the Act shall commence upon personal service of the Notice of Intent upon the alien, as prescribed by Secs. 103.5a(a)(2) and 103.5a(c)(2) of this chapter. The Notice of Intent shall set for the preliminary determinations and inform the alien of the Service's intention to issue a Final Administrative Deportation Order (Final Administrative Deportation Order, Form I-851A) without a hearing before an Immigration Judge. This Notice shall constitute the c harging document. The Notice of Intent shall include allegations of fact and conclusions of law. It shall advise that the alien: has the privilege of being represented by counsel of the alien's choosing, at no expense to the Government, as long as counsel is authorized to practice in deportation proceedings; may inspect the evidence supporting the Notice of Intent; and may rebut the charges within ten (10) calendar days after service of such Notice (or thirteen (13) calendar days if service of the Notice was by mail).

    (ii) The Notice of Intent also shall advise the alien that he or she may designate in writing, within ten (10) calendar days of service of the Notice of Intent (or thirteen (13) calendar days if service is by mail), the country to which he or she chooses to be deported in accordance with section 243 of the Act, in the event that a Final Administrative Deportation Order is issued, and that the Service will honor such designation only to the extent permitted under the terms, limitations, and conditions of se ction 243 of the Act.

    (iii) The Service shall provide the alien with a list of available free legal services programs qualified under part 292a of this chapter and organizations recognized pursuant to part 292 of this chapter, located within the district or sector where the Notice of Intent is issued.

    (iv) The Service must either provide the alien with a written translation of the Notice of Intent or explain the contents of the Notice of Intent to the alien in the alien's native language or in a language that the alien understands.

    (c) Alien's response . (1) Time for response . The alien will have ten (10) calendar days from service of the Notice of Intent, or thirteen (13) calendar days if service is by mail, to file a response to the Notice. If the final date for filing such a response falls on a Saturday, Sunday, or legal holiday, the response shall be considered due on the next business day. In the response, the alien may: Designate his or her choice of country for deportation; submit a written response rebutting the allegations supporting the charge and/or requesting the opportunity to review the Government's evidence; and/or request in writing an extension of time for response, stating the specific reasons why such an extension is necessary. Alternatively, the alien may, in writing, choose to accept immediate issuance of a Final Administrative Deportation Order. The deciding Service officer may extend the time for response for good cause shown. A request for extension of time for response will not automatically extend the period for the response. The alien will be per mitted to file a response outside the prescribed period only if the deciding Service officer permits it. The alien must send the response to the deciding Service officer at the address provided in the Notice of Intent.

    (2) Nature of rebuttal or request to review evidence . (i) If an alien chooses to rebut the allegations contained in the Notice, the alien's written response must indicate which finding(s) are being challenged and should be accompanied by affidavit(s), documentary information, or other specific evidence supporting the challenge. If the alien asserts that he or she is entitled to statutory relief from deportation, the alien also should include with the response a completed and signed application designed for the relief sought.

    (ii) If an alien's written response requests the opportunity to review the Government's evidence, the Service shall serve the alien with a copy of the evidence in the record of proceeding upon which the Service is relying to support the charge. The alien may, within ten (10) calendar days following service of the Government's evidence (thirteen (13) calendar days if service is by mail), furnish a final response in accordance with paragraph (c)(1) of this section. If the alien's final response is a rebutt al of the allegations, such a final response should be accompanied by affidavit(s), documentary information, or other specific evidence supporting the challenge. If the alien asserts that he or she is entitled to statutory relief from deportation, the alien also should include with the final response a completed and signed application designed for the relief sought.

    (d) Determination by deciding Service officer . (1) No response submitted or concession of deportability . If the deciding Service officer does not receive a timely response and the evidence in the record of processing establishes deportability by clear, convincing, and unequivocal evidence, or if the alien concedes deportability, then the deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Deportation Order that states the reasons for the deportation decision. The alien may knowingly and voluntarily waive in writing the 30-day waiting period before execution of t he final order of deportation provided in paragraph (f) of this section.

    (2) Response submitted . (i) Insufficient rebuttal; no prima facie claim or genuine issue of material fact: If the alien timely submits a rebuttal to the allegations, but the deciding Service officer finds that deportability is established by clear, convincing, and unequivocal evidence in the record of proceeding, and that the alien has not demonstrated a prima facie claim of eligibility for relief from deportation under the Act, the deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Deportation Order that states the reasons for the deportation decision.

    (ii) Additional evidence required . (A) If the deciding Service officer finds that the record of proceeding, including the alien's timely rebuttal, raises a genuine issue of material fact regarding the preliminary findings, the deciding Service officer may either obtain additional evidence from any source, including the alien, or cause to be issued an order to show cause to initiate deportation proceedings under section 242(b) of the Act. The deciding Service officer also may obtain additional evidence from any source, including the alien, if the deciding Service officer deems that such additional evidence may aid the officer in the rendering of a decision.

    (B) If the deciding Service officer considers additional evidence from a source other than the alien, that evidence shall be made a part of the record of proceeding, and shall be provided to the alien. If the alien elects to submit a response to such additional evidence, such response must be filed with the Service within ten (10) calendar days of service of the additional evidence (or thirteen (13) calendar days if service is by mail). If the deciding Service officer finds, after considering all additio nal evidence, that deportability is established by clear, convincing, and unequivocal evidence in the record of proceeding, and that the alien does not have a prima facie claim of eligibility for relief from deportation under the Act, the deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Deportation Order that states the reasons for the deportation decision.

    (iii) Statutory eligibility for relief; conversion to proceedings under section 242(b) of the Act . If the deciding Service officer finds that the alien is not amenable to deportation under section 242A(b) of the Act or has presented a prima facie claim of statutory eligibility for a specific form of relief from deportation, the deciding Service officer shall terminate the expedited proceedings under section 242A(b) of the Act, and shall, where appropriate, cause to be issued an order to show cause for the purpose of initiating an Immigration Judge proceeding under section 242(b) of the Act.

    (3) Termination of proceedings by deciding Service officer . Only the deciding Service officer may terminate proceedings under section 242A(b) of the Act, in accordance with this section.

    (e) Proceedings commenced under section 242(b) of the act . In any proceeding commenced under section 242(b) of the Act, if it appears that the respondent alien is subject to deportation pursuant to section 242A(b) of the Act, the Immigration Judge may, upon the Service's request, terminate the case and, upon such termination, the Service may commence administrative proceedings under section 242A(b) of the Act. However, in the absence of any such request, the Immigration Judge shall complete the pending proceeding commenced under section 242(b) of the Act.

    (f) Executing final deportation order of deciding Service officer . (1) Time of execution . Upon the issuance of a Final Administrative Deportation Order, the Service shall issue a warrant of deportation in accordance with 8 CFR 243.2; such warrant shall be executed no sooner than 30 calendar days after the date the Final Administrative Deportation Order is issued, unless the alien knowingly, voluntarily and in writing waives the 30-day period. The 72-hour provisions of § 243.3(b) of this chapter shall not apply.

    (2) Country to which alien is to be deported . The deciding Service officer shall designate the country of deportation in the manner prescribed by section 243(a) of the Act.

    (g) Arrest and detention . At the time of issuance of a Notice of Intent or at any time thereafter and up to the time the alien becomes the subject of a warrant of deportation, the alien may be arrested and taken into custody under the authority of a warrant of arrest issued by an officer listed in § 242.2(c)(1) of this chapter. Pursuant to section 242(a)(2)(A) of the Act, the deciding Service officer shall not release an alien who has not been lawfully admitted. Pursuant to section 242(a)(2)(B) of the Act, the deciding Service o fficer may release an alien who has been lawfully admitted if, in accordance with § 242.2(h) of this chapter, the alien demonstrates that he or she is not a threat to the community and is likely to appear at any scheduled hearings. The decision of the deciding Service officer concerning custody or bond shall not be administratively appealable during proceedings initiated under section 242A(b) of the Act and this section.

    (h) Record of proceeding . The Service shall maintain a record of proceeding for judicial review of the Final Administrative Deportation Order sought by any petition for review. The record of proceeding shall include, but not necessarily be limited to: the charging document (Notice of Intent); the Final Administrative Deportation Order (including any supplemental memorandum of decision); the alien's response, if any; all evidence in support of the charge; and any admissible evidence, briefs, or documents submitted by either party respecting deportability or relief from deportation.

PART 299--IMMIGRATION FORMS

    3. The authority citation for part 299 continues to read as follows:

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

    4. Section 299.1 is amended by adding the entries for Forms "I-851" and "I-851A" to the listing of forms, in proper numerical sequence, to read as follows:

§ 299.1 Prescribed forms.

* * * * *

_______________________________________________________________

Form No.	Edition date	Title
I-851	04-06-95	Notice of Intent to Issue Final Administrative Deportation Order.
I-851A	04-06-95	Final Administrative Deportation Order.

_______________________________________________________________

August 17, 1995 _________________ Dated:

Signed _______________________________ Janet Reno, Attorney General