\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2003 \ FEDERAL REGISTER FINAL REGULATIONS - 2003 \ Powers and Authority of Officers and Employees; Revisions to the Internal Review Process for Alleged Violations of the Standards for Enforcement Activities [68 FR 35273] [FR 27-03] \ PART 239--INITIATION OF REMOVAL PROCEEDINGS
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PART 239--INITIATION OF REMOVAL PROCEEDINGS
7. The authority citation for part 239 continues to read as follows:
8 U.S.C. 1103, 1221, 1229; Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. 1,
.); 8 CFR part 2.
8. Section 239.1 is revised to read as follows:
§ 239.1 Notice to appear.
Issuance of notice to appear
. Any immigration officer, or supervisor thereof, performing an inspection of an arriving alien at a port-of-entry may issue a notice to appear to such alien. In addition, the following officers, or officers acting in such capacity, may issue a notice to appear:
(1) District directors (except foreign);
(2) Deputy district directors (except foreign);
(3) Chief patrol agents;
(4) Deputy chief patrol agents;
(5) Assistant chief patrol agents;
(6) Patrol agents in charge;
(7) Assistant patrol agents in charge;
(8) Field operations supervisors;
(9) Special operations supervisors;
(10) Supervisory border patrol agents;
(11) Service center directors;
(12) Deputy service center directors;
(13) Assistant service center directors for examinations;
(14) Supervisory district adjudications officers;
(15) Supervisory asylum officers;
(16) Officers in charge (except foreign);
(17) Assistant officers in charge (except foreign);
(18) Special agents in charge;
(19) Deputy special agents in charge;
(20) Associate special agents in charge;
(21) Assistant special agents in charge;
(22) Resident agents in charge;
(23) Supervisory special agents;
(24) Directors of investigations;
(25) District directors for interior enforcement;
(26) Deputy or assistant district directors for interior enforcement;
(27) Director of detention and removal;
(28) Field office directors;
(29) Deputy field office directors;
(30) Supervisory deportation officers;
(31) Supervisory detention and deportation officers;
(32) Directors or officers in charge of detention facilities;
(33) Directors of field operations;
(34) Deputy or assistant directors of field operations;
(35) District field officers;
(36) Port directors;
(37) Deputy port directors; or
(38) Other officers of employees of the Department or of the United States who are delegated the authority as provided by § 2.1 of this chapter to issue notices to appear.
Service of notice to appear
. Service of the notice to appear shall be in accordance with section 239 of the Act.
9. Section 239.2 is amended by:
Revising paragraphs (c) and (d); and by
Removing paragraph (f).
The revisions read as follows:
§ 239.2 Cancellation of notice to appear.
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Motion to dismiss
. After commencement of proceedings pursuant to 8 CFR 1003.14, ICE counsel, or any officer enumerated in paragraph (a) of this section, may move for dismissal of the matter on the grounds set out under paragraph (a) of this section.
Motion for remand
. After commencement of the hearing, ICE counsel, or any officer enumerated in paragraph (a) of this section may move for remand of the matter to district jurisdiction on the ground that the foreign relations of the United States are involved and require further consideration.
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PART 287--FIELD OFFICERS; POWERS AND DUTIES
10. The authority citation for part 287 is revised to read as follows:
8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; Homeland Security Act of 2002, Pub. L. 107-296 (6 U.S.C. 1,
.); 8 CFR part 2.
11. Section 287.1 is amended by:
a. Revising the words “district director” to read “chief patrol agent for CBP, or the special agent in charge for ICE” in paragraph (a)(2);
b. Revising paragraphs (b) and (g);
c. Removing the words “and § 242.2(a) of this part” in paragraph (e); and by
d. Adding paragraphs (h) and (i).
The revisions and additions read as follows:
§ 287.1 Definitions.
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Reasonable distance; fixing by chief patrol agents and special agents in charge
. In fixing distances not exceeding 100 air miles pursuant to paragraph (a) of this section, chief patrol agents and special agents in charge shall take into consideration topography, confluence of arteries of transportation leading from external boundaries, density of population, possible inconvenience to the traveling public, types of conveyances used, and reliable information as to movements of persons effecting illegal entry into the United States: Provided, That whenever in the opinion of a chief patro
l agent or special agent in charge a distance in his or her sector or district of more than 100 air miles from any external boundary of the United States would because of unusual circumstances be reasonable, such chief patrol agent or special agent in charge shall forward a complete report with respect to the matter to the Commissioner of CBP, or the Assistant Secretary for ICE, as appropriate, who may, if he determines that such action is justified, declare such distance to be reasonable.
* * * * *
Basic immigration law enforcement training
. The phrase basic immigration law enforcement training, as used in § § 287.5 and 287.8, means the successful completion of one of the following courses of training provided at the Immigration Officer Academy or Border Patrol Academy: Immigration Officer Basic Training Course after 1971; Border Patrol Basic Training Course after 1950; Immigration Detention Enforcement Officer Basic Training Course after 1977; and Immigration Customs Enforcement Special Agent Training, after 2002; or training substantially
equivalent thereto as determined by the Commissioner of CBP or the Assistant Secretary for ICE with respect to personnel in their respective bureaus. The phrase basic immigration law enforcement training also means the successful completion of the Other than Permanent Full-Time (OTP) Immigration Inspector Basic Training Course after 1991 in the case of individuals who are OTP immigration inspectors. Conversion by OTP immigration to any other status requires training applicable to that position.
(h) References to specific titles of officers mean all individuals holding such positions and any individual acting in such position.
(i) Nothing in this part limits the authority of any DHS officers to act pursuant to any authorities that they may otherwise possess.
§ 287.2 [Amended]
12. Section 287.2 is amended by:
a. Revising the words “district director” to read “special agent in charge, port director,”;
b. Adding the phrase “immigration and nationality” immediately before the phrase “laws administered or enforced”; and by
c. Revising the word “Service” to read “Department”.
§ 287.3 [Amended]
13. Section 287.3 is amended by:
a. Revising the words “8 CFR part 3” to read “8 CFR part 1003” in paragraph (c); and by
b. Adding the phrase “or 8 CFR 1292.2” immediately after the phrase “§ 292.2 of this chapter” in paragraph (c).
14. Section 287.4 is amended by:
a.Revising paragraph (a);
b. Adding the word “immigration” immediately before the word “officer” and by revising the word “Service” to read “Department” in paragraph (b)(1);
c. Revising the word “making” to read “taking”, adding the word “immigration” immediately before the word “officer” and by revising the word “Service” to read “Department” in paragraph (b)(2); and by
d. Revising paragraph (c).
The revisions read as follows:
§ 287.4 Subpoena.
Who may issue
Criminal or civil investigations
. All District Directors; Deputy District Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Assistant Chief Patrol Agents; Officers in Charge; Patrol Agents in Charge; Assistant Patrol Agents in Charge; Field Operations Supervisors; Special Operations Supervisors; Supervisory Border Patrol Agents; Assistant District Directors, Investigations; Supervisory Criminal Investigators, Anti-Smuggling; Regional Directors; Service Center Directors; Assistant District Directors, Examinations; Director, Deten
tion and Removal; Special Agents in Charge; all Special Agents in supervisory positions; Field Office Directors; Deputy Field Office Directors; and any other immigration officer who has been expressly delegated such authority as provided by 8 CFR 2.1 may issue a subpoena requiring the production of records and evidence for use in criminal or civil investigations.
Proceedings other than naturalization proceedings
Prior to commencement of proceedings
. All District Directors; Deputy District Directors; Chief Patrol Agents; Deputy Chief Patrol Agents; Officers in Charge; Director, Detention and Removal; Special Agents in Charge; Deputy Special Agents in Charge; Resident Agents in Charge; District Field Officers; Field Office Directors; Deputy Field Office Directors; and Port Directors may issue a subpoena requiring the attendance of witnesses or the production of documentary evidence, or both, for use in any proceeding under this chapter I, other than un
der 8 CFR part 335, or any application made ancillary to the proceeding.
Subsequent to commencement of any immigration court proceeding
. Procedures for the issuance of a subpoena after the commencement of proceedings, in cases other than those arising under part 335 of this chapter, are set forth at 8 CFR 1003.35(b) and 1287.4.
* * * * *
. A subpoena issued under this section may be served by any person, over 18 years of age not a party to the case, designated to make such service by the District Director; Deputy District Director; Chief Patrol Agent; Deputy Chief Patrol Agent; Assistant Chief Patrol Agent; Patrol Agent in Charge; Officer in Charge; Assistant District Director, Investigations; Supervisory Criminal Investigator, Anti-Smuggling; Regional Director; Special Agent in Charge; Deputy Special Agent in Charge; Resident Agent in Char
ge; District Field Officer; Field Office Director; Deputy Field Office Director; Supervisory Deportation Officer; Supervisory Detention and Deportation Officer; and Port Director having administrative jurisdiction over the office in which the subpoena is issued. The Director, Detention and Removal, shall also have the authority to make such designation. Service of the subpoena shall be made by delivering a copy thereof to the person named therein and by tendering to him/her the fee for one day's attendance
and the mileage allowed by law by the United States District Court for the district in which the testimony is to be taken. When the subpoena is issued on behalf of the Department, fee and mileage need not be tendered at the time of service. A record of such service shall be made and attached to the original copy of the subpoena.
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15. Section 287.5 is revised to read as follows: