List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization and functions (Government agencies).

8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 240

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

Administrative practice and procedure, Aliens, Immigration.

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

Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1226, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002.

2. Section 3.2 is amended by adding new paragraph (c)(5) to read as follows:

§ 3.2 Reopening or Reconsideration before the Board of Immigration Appeals.

* * * * *

(c) * * *

(5) Failure to surrender for removal. A motion to reopen removal proceedings will not be granted in the case of an alien who failed to surrender for removal in accordance with § 241.13 of this chapter, unless:

(i) The district director waived the consequences for failing to surrender for removal in accordance with § 241.15(c) of this chapter; or

(ii) The alien presents documentary evidence that demonstrates, by clear and convincing evidence, that

(A) The failure to surrender for removal was due to exceptional circumstances as defined in section 240(e)(1) of the Act; and

(B) The alien surrendered for removal as soon as possible after the circumstances that prevented a timely surrender had passed.

(iii) Nothing in paragraph (c)(5)(ii) of this section may be construed as providing the right to reopen a proceeding solely to consider whether an alien complied with the duty to surrender for removal, or whether exceptional circumstances excuse the alien's

failure to do so.

* * * * *

3. Section 3.23 is amended by adding new paragraph (b)(5) to read as follows:

§ 3.23 Reopening for reconsideration before the Immigration Court.

* * * * *

(b) * * *

(5) Failure to surrender for removal . A motion to reopen removal proceedings will not be granted in the case of an alien who failed to surrender for removal in accordance with § 241.13 of this chapter, unless:

(i) The district director waived the consequences for failing to surrender for removal in accordance with § 241.15(c) of this chapter; or

(ii) The alien presents documentary evidence that demonstrates, by clear and convincing evidence, that

(A) The failure to surrender for removal was due to exceptional circumstances as defined in section 240(e)(1) of the Act; and

(B) The alien surrendered for removal as soon as possible after the circumstances that prevented a timely surrender had passed.

(iii) Nothing in paragraph (b)(5)(ii) of this section may be construed as providing the right to reopen a proceeding solely to consider whether an alien complied with the duty to surrender for removal, or whether exceptional circumstances excuse the alien's

failure to do so.

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

4. The authority citation for part 236 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8 CFR part 2.

5. Section 236.1 is amended by redesignating paragraphs (c) (1), (2), (3), (4), and (5) as (c) (1), (2), (3), (4), (5), and (6) respectively, and by adding, after the heading "Custody issues and release procedures", the following new paragraph (c)(1), to read as follows:

§ 236.1 Apprehension, custody, and detention.

* * * * *

(c) * * *

(1) No alien may be released from custody unless the alien agrees to surrender for removal in accordance with § 241.13 of this chapter should the alien become subject to a final order of removal.

* * * * *

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES

6. The authority citation for part 240 continues to read as

follows:

Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.

7. Section 240.26 is amended by adding a sentence at the end of paragraph (a), to read as follows:

§ 240.26 Voluntary departure-authority of the Executive Office

for Immigration Review.

(a) * * * In addition, no alien may be granted voluntary departure unless the alien agrees to surrender for removal in accordance with § 241.13(c) of this chapter.

* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

8. The authority citation for part 241 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and 1330; 8 CFR part 2.

9. In part 241, subpart A, a new § 241.13 is added to read as follows:

§ 241.13 Duty to surrender.

Aliens subject to a final order of removal shall be taken into custody by the Service and removed. If not in the custody of the Service, however, aliens subject to a final order of removal must surrender for removal as provided in this section. Such surrenders must be made during regular business hours to the Service district office with jurisdiction over the place where the immigration judge completed the removal proceeding. Nothing in this part shall be construed as limiting the Service's authority to enf orce a final order of removal at any time.

(a) Immigration Judge .--(1) Aliens waiving appeal and aliens ordered removed in absentia . Aliens served with an order of removal issued by an immigration judge who waive appeal of the order, and aliens who are ordered removed in absentia, must surrender for removal within 10 calendar days of date of the order.

(2) Aliens reserving appeal . Aliens who reserve appeal and are served with an order of removal issued by an immigration judge that becomes final due to expiration of the time to file an appeal must surrender for removal within 10 calendar days of the date that the appeal period expires. Aliens who reserve appeal and are served with an order of removal issued by an immigration judge that becomes final due to a subsequent waiver or withdrawal of appeal must surrender for removal within 10 calendar days of the date that the order becom es final.

(b) Board of Immigration Appeals . Aliens who are served with an order of removal, or an order dismissing an appeal from an order of removal, issued by the Board of Immigration Appeals must surrender for removal within 10 calendar days of the date of the order.

(c) Voluntary departure . Notwithstanding paragraphs (a) and (b) of this section, an alien granted voluntary departure who subsequently becomes subject to an alternate order of removal due to failure to depart as directed, failure to pay a bond in connection with voluntary departure, or failure to comply with any other required condition or term in connection with voluntary departure, must surrender for removal on the next business day thereafter.

(d) Aliens in custody . (1) An alien who becomes subject to a final order of removal while in Service custody is thereby relieved of the duty to surrender for removal under this section.

(2) An alien who becomes subject to a final order of removal while incarcerated in a local, State, or Federal facility must surrender for removal within 10 calendar days of the alien's release from that facility, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense, unless the alien is detained by the Service at the time he or she is released. If the alien is detained by t he Service at the time of release from a local, State, or Federal facility, the alien is thereby relieved of the duty to surrender for removal pursuant to paragraph (d)(1) of this section.

(e) Other orders of removal . Subject to paragraph (d) of this section, aliens who are ordered removed, other than by an immigration judge or the Board of Immigration Appeals, must surrender for removal to the Service district office with jurisdiction over the place where the alien was ordered removed within 10 calendar days of the date that the order becomes final.

(f) Requests for relief subsequent to final order of removal . An application for discretionary or other relief, including a motion to reopen, submitted by an alien to the Service, an immigration judge, or the Board of Immigration Appeals will have no effect on an alien's duty to surrender unless the alien has been served, prior to the expiration of the period to surrender, with a response granting the requested relief. A request for modification of the surrender terms submitted by an alien to the Service will have no effect on an alien's duty to surrender unless the alien has been served, prior to the expiration of the period to surrender, with a response granting the requested relief. The filing of a petition for review or writ of habeas corpus will likewise have no effect on an alien's duty to surrender for removal.

(g) Weekends and holidays . If the last permissible day to surrender for removal falls on a Saturday, Sunday, Federal holiday, or other day when the Service office designated for surrender is closed, the alien must surrender for removal on the first business day thereafter.

(h) Alternative surrender terms . Nothing in this part may be construed as limiting the Service's authority, in its sole and unreviewable discretion, to impose surrender requirements in addition to or varying from those generally applicable under this section. Changes to the surrender requirements may be made by mutual consent of the parties or, if without the alien's consent, the Service shall notify the alien in person or by regular mail at the last address given to the Service by the alien. This notice requirement shall not affect the Service's ability to arrest and remove an alien described in section 241(a) of the Immigrati on and Nationality Act at any time.

10. In part 241, subpart A, a new § 241.14 is added to read as follows:

§ 241.14 Notice of duty to surrender.

(a) Notice to Appear . The Notice to Appear, Form I-862, will contain written notice of the duty to surrender.

(b) Immigration judge . (1) The immigration judge will inform the alien orally and in writing that if the alien fails to appear for a hearing, and thereby becomes subject to a final order of removal, the alien will be required to surrender for removal.

(2) In any case in which an immigration judge renders a decision, whether or not adverse to the alien, the immigration judge will inform the alien orally and in writing of the duty to surrender for removal and the location to which the alien must surrender in the event that the alien becomes subject to a final order of removal.

(c) Board of Immigration Appeals . Orders of removal, and orders dismissing an appeal from an order of removal, issued by the Board of Immigration Appeals will contain written notice of the duty to surrender for removal.

(d) Upon release from custody . As a condition of release from custody, whether under terms directed by the Service or subsequent to redetermination by an immigration judge or the Board of Immigration Appeals, the alien released must agree to surrender for removal if the alien becomes subject to a final order of removal. No alien will be released from custody without agreeing to surrender for removal as required by this part.

(e) Upon grant of voluntary departure . No alien may be granted voluntary departure, whether by an immigration judge or the Board of Immigration Appeals, unless the alien agrees to surrender for removal as provided under § 241.13(c) should the alien become subject to an alternate order of removal due to failure to depart as directed, failure to pay a bond in connection with voluntary departure, or failure to comply with any other required condition or term in connection with voluntary departure.

(f) Duty to surrender not contingent upon notice . The duty to surrender for removal attaches upon service of a Notice to Appear pursuant to the terms of section 239(a)(1) of the Act, and is not contingent upon receipt of any of the notices enumerated in this section. If the address of the Service district office to which the alien is required to surrender changes subsequent to issuance of the notice in § 241.14(b)(2), it is the alien's duty to determine the new address and surrender to that location.

11. In part 241, subpart A, a new § 241.15 is added to read as follows:

§ 241.15 Consequences of failure to surrender for removal; exception; waiver.

(a) Consequences . (1) An alien who fails to surrender for removal as required by this part, and who remains in the United States in violation of law, is:

(i) Subject to criminal prosecution under section 243 of the Act;

(ii) Subject to civil penalties under section 274D of the Act; and

(iii) Ineligible for discretionary relief under sections 208, 212(h), 212(i), 240A, 240B, 245, 248 and 249 of the Act.

(2) An alien who departs or is removed by the Service after failing to surrender for removal as required by this part is ineligible for the relief specified in paragraph (a)(1)(iii) of this section for 10 years after the alien's departure or removal.

(b) Exception . An alien who fails to surrender for removal as required by this part is not ineligible for the relief specified in paragraph (a)(1)(iii) of this section if the underlying proceeding was reopened by the Board of Immigration Appeals in accordance with § 3.2(c)(5) of this chapter or an immigration judge in accordance with § 3.23(b)(5) of this chapter, provided that the alien does not again fail to surrender for removal subsequent to reopening of the underlying proceeding.

(c) Waiver . The consequences of failing to surrender for removal may be waived, in the sole and unreviewable discretion of the district director, if:

(1)(i) The failure to surrender was due to exceptional circumstances as defined in section 240(e)(1) of the Act; and

(ii) The alien surrenders for removal as soon as possible thereafter, and at that time presents documentary evidence that demonstrates, by clear and convincing evidence, the existence of exceptional circumstances.

12. In part 241, subpart A, a new § 241.16 is added to read as follows:

§ 241.16 Construction.

(a) Order of removal . For purposes of § 241.13, § 241.14, and § 241.15, the term order of removal shall apply to orders issued pursuant to the Act as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208.

(b) Detainers . Nothing in this part may be construed to relieve local, State, or Federal authorities from complying with the terms of a lawfully issued Service detainer.

(c) Service . For purposes of § 241.13, § 241.14, and § 241.15, in the case of an alien who is not personally served with an order of removal, service is sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with section 239(a)(1)(F) of the Act.

(d) Effect on bonds . Failure to surrender as required by this part shall not constitute breach of any outstanding immigration bond. Such bond shall remain in full force and effect, however, and the Service may issue a demand on the obligor to produce the alien for removal.

August 27, 1998 _________________ Dated:

Signed _______________________________ Janet Reno, Attorney General