Delegation of Authorities for Various Detention and Removal Authorities and the Parole, Detention, Care and Custody of Alien Juveniles [67 FR 39255] [FR 27-02]

DOCUMENT NUMBER: FR 27-02

FEDERAL REGISTER CITE: 67 FR 39255

DATE OF PUBLICATION: June 7, 2002

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 212, 236, 238, 239, 240, 241, and 287

[INS No. 2206-02]

RIN 1115-AG69

Delegation of Authorities for Various Detention and Removal

Authorities and the Parole, Detention, Care and Custody of

Alien Juveniles

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: As part of the ongoing restructuring of the Immigration and Naturalization Service (Service or INS), the chain of command for many functions related to the detention and removal of aliens, including the detention, care and custody of juveniles, will be centralized. Currently, these functions are overseen by Service districts and regions which report to the Executive Associate Commissioner for Field Operations. Under the reorganization, the daily oversight of overall detention and removal functions will tra nsfer to the Deputy Executive Associate Commissioner for Detention and Removal who will still report to the Executive Associate Commissioner for Field Operations. The daily oversight of functions relating to alien juveniles in the custody and care of the Service is transferred to the Director of the Office of Juvenile Affairs who reports to the Commissioner of the INS. This rule ensures that the appropriate immigration officials will have the necessary authority to carry out the daily oversight of the deten tion and removal of aliens consistent with the changes in responsibility.

DATES: This rule is effective June 7, 2002.

FOR FURTHER INFORMATION CONTACT: For overall detention and removal issues contact: Rachel Canty, Special Assistant, Office of Detention and Removal, Immigration and Naturalization Service, 801 I Street, NW Room 900, Washington, DC 20536, telephone number 202-305-1518. For issues specifically related to the detention, care and custody of juveniles, contact: John J. Pogash, National Juvenile Coordinator, Immigration and Naturalization Service, 801 I Street, NW., Room 800, Washington, DC 20536, telephone number 202-305-1518.

SUPPLEMENTARY INFORMATION: The Immigration and Nationality Act (Act) conveys authority to perform various functions on the Attorney General, and that authority, with some limitations, is delegated to the INS Commissioner pursuant to Department of Justice regulations at 28 CFR 0.105 and 8 CFR 2.1. The latter provision further authorizes the INS Commissioner to issue regulations and redelegate authority to any officer or employee of the Service. This final rule delegates authority to grant parole, make decisions on the expedited remov al of aggravated felons, issue and cancel notices to appear, issue warrants of removal, continue detention of inadmissible criminals or other aliens beyond the removal period, issue administrative stays of removal, grant extensions of time to depart, issue subpoenas, and issue warrants of arrest to the Deputy Executive Associate Commissioner for Detention and Removal, the Directors of the Detention and Removal Field Offices (who report to the Deputy Executive Associate Commissioner for Detention and Removal ), and the Director of the Office of Juvenile Affairs, as appropriate. This rule does not change any substantive rules relating to the implementation of these authorities, and therefore individuals who might be affected by any of the listed actions will not be disadvantaged by this change.

As part of the ongoing restructuring of the Service, the chain of command for many functions related to the detention and removal of aliens, including the detention, care and custody of juveniles, will be centralized. Currently, these functions are overseen by Service districts and regions which report to the Executive Associate Commissioner for Field Operations. Under the reorganization, the daily oversight of the overall detention and removal functions will transfer to the Deputy Executive Associate Commi ssioner for Detention and Removal who will report to the Executive Associate Commissioner for Field Operations. In turn, field level oversight of detention and removal functions in a given geographical area will be overseen by Directors of Detention and Removal Field Offices. The daily oversight of certain functions as related to juveniles in the custody and care of the Service is transferred to the Director of the Office of Juvenile Affairs who reports to the Commissioner of the INS. This rule ensures that the appropriate immigration officials will have the necessary authority to carry out the daily oversight of the detention and removal of aliens, consistent with the changes in responsibility. This is accomplished by amending the listing of officials authorized to grant parole, make decisions on the expedited removal of aggravated felons, issue and cancel notices to appear, issue warrants of removal, continue detention of inadmissible criminals or other aliens beyond the removal period, issue administrative stays of removal, issue subpoenas, grant extensions of time to depart and issue warrants of arrest.

The provisions of 8 CFR 212.5(a), (c), (d) and (e), 236.3(b)(4), (e) and (f), 238.1(a), 239.1(a), 240.25(a), 240.26(f), 241.2(a), 241.4, 241.6(a) and (b), 241.7, 287.4(a) and (c), and 287.5(e)(2), are being amended to add the Deputy Executive Associate Commissioner for Detention and Removal, the Director of the Detention and Removal Field Office, and the Director of the Office of Juvenile Affairs, as appropriate to the list of officials authorized to engage in such functions. This amendment does not otherwi se alter who is authorized to exercise these authorities except that district directors and chief patrol agents have been removed from 8 CFR 212.5(b)(3) and 8 CFR 236.3 relating to parole and release of juveniles. This authority is being transferred to the Director of the Office of Juvenile Affairs. In particular, under this rule, the Deputy Executive Associate Commissioner for Detention and Removal, and the Director of the Office of Juvenile Affairs may grant parole (8 CFR 212.5), make decisions on the exp edited removal of aggravated felons (8 CFR 238.1(a)), issue and cancel notices to appear (8 CFR 239.1(a)), grant voluntary departure (8 CFR 240.25), grant extensions of time to depart (8 CFR 240.26(f)), issue warrants of removal (8 CFR 241.2), issue administrative stays of removal (8 CFR 241.6), grant self removal (8 CFR 241.7), issue subpoenas (8 CFR 287.4), and issue warrants of arrest (8 CFR 287.5). The Director of the Office of Juvenile Affairs is also specifically given the sole authority to determine parole for juveniles (8 CFR 212.5(a)(3)) and issues concerning the detention and release of juveniles (8 CFR 236.3). District directors and chief patrol agents will no longer have this authority. Directors of the Detention and Removal Field Offices are delegated the authority to continue detention of inadmissible criminals or other aliens beyond the removal period (8 CFR 241.4).

This rule also adds a new paragraph in 8 CFR 103.1(g) to delegate authority to the Deputy Executive Associate Commissioner for Detention and Removal within the Office of Field Operations for the Service. This position, created in calendar year 2000, working under the direction and supervision of the Executive Associate Commissioner for Field Operations, has responsibility for planning, directing, managing and coordinating all Service operational functions relating to the detention and removal of aliens from the United States. See Meissner, Commissioner, Establishment of Headquarters Office of Detention and Removal, INS Mem. HQOPS 50/10 (Oct. 25, 2000).

Additionally, this rule adds a new paragraph in 8 CFR 103.1(k) to delegate authority to the Director for the Office of Juvenile Affairs. This position, created in April 2002, working under the direction and supervision of the Commissioner, has responsibility for planning, directing, managing and coordinating all Service operational, adjudicative, and policy functions relating to alien juveniles in the custody and care of the Service. See Ziglar, Commissioner, Initial Restructuring Measures, INS Mem. HQOU 90 /20 (April 17, 2002).

Congressional Review Act

This action pertains to agency organization, practice, and procedure and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Good Cause Exception

The Service’s implementation of this rule as a final rule is based on the “good cause” exception found at 5 U.S.C. 553(a)(2). The amendments contained herein relate to agency management and are necessary to ensure that the appropriate immigration officials will have the necessary authority to carry out the daily oversight of the detention and removal of aliens. Accordingly, it would be contrary to the public interest to issue this rule as a proposed rule because doing so would delay its implementation.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that since this rule pertains to internal agency management, it will not have a significant economic impact on a substantial number of small entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 12866

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12988 Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, all departments are required to submit to OMB, for review and approval, any reporting requirements inherent in a final rule. This rule does not impose any new reporting and recordkeeping requirements under the Paperwork Reduction Act.