[Federal Register Volume 67, Number 110 (Friday, June 7, 2002)]
[Rules and Regulations]
[Pages 39255-39260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14348]
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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.
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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 transfer 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 detention
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 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, 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 Commissioner 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 otherwise 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
[[Page 39256]]
Removal, and the Director of the Office of Juvenile Affairs may grant
parole (8 CFR 212.5), make decisions on the expedited 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.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and record keeping requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Reporting and record keeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 238
Air Carriers, Aliens, Government contracts, Maritime carriers.
8 CFR Part 239
Air carriers, Aircraft, Airports, Aliens.
8 CFR Part 240
Administrative practice and procedure, Immigration.
8 CFR Part 241
Aliens.
[[Page 39257]]
8 CFR Part 287
Immigration, Law enforcement officers.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982
Comp., p. 166; 8 CFR part 2.
2. Section 103.1 is amended by adding paragraphs (g)(4) and (k) to
read as follows:
Sec. 103.1 Delegation of authority.
* * * * *
(g) * * *
(4) Deputy Executive Associate Commissioner for Detention and
Removal. Under the direction and supervision of the Executive Associate
Commissioner for Field Operations, the Deputy Executive Associate
Commissioner for Detention and Removal is delegated authority to plan,
direct, manage and coordinate all Service operational functions
relating to the detention and removal of aliens from the United States
and for liaison with Departmental and interagency partners on these
issues.
* * * * *
(k) Director of the Office of Juvenile Affairs. Under the direction
and supervision of the Commissioner, the Director of the Office of
Juvenile Affairs is delegated authority to plan, direct, manage and
coordinate all Service operational, adjudicative and policy functions
relating to alien juveniles in the custody and care of the Service and
to conduct liaison with the Departmental and interagency partners on
these issues.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSABLE ALIENS; PAROLE
3.The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227; 8 CFR part 2.
4. Section 212.5 is amended by:
a. Revising paragraph (a);
b. Revising paragraph (b)(3) introductory text and paragraph
(b)(5);
c. Revising paragraph (c);
d. Revising paragraph (d) introductory text;
e. Revising paragraph (d)(1); and by
f. Revising paragraph (e)(2)(i).
The revision reads as follows:
Sec. 212.5 Parole of aliens into the United States.
(a) The authority of the Commissioner to continue an alien in
custody or grant parole under section 212(d)(5)(A) of the Act shall be
exercised by the Deputy Executive Associate Commissioner for Detention
and Removal, the Director of the Office of Juvenile Affairs, the
district director, or the chief patrol agent, subject to the parole and
detention authority of the Commissioner or his designees. The
Commissioner or his designees, which include the Deputy Commissioner,
the Executive Associate Commissioner for Field Operations, and the
regional director, may invoke, in the exercise of discretion, the
authority under section 212(d)(5)(A) of the Act.
* * * * *
(b) * * *
(3) Aliens who are defined as juveniles in Sec. 236.3(a) of this
chapter. The Director of the Office of Juvenile Affairs shall follow
the guidelines set forth in Sec. 236.3(a) of this chapter and
paragraphs (b)(3)(i) through (b)(3)(iii) of this section, in
determining under what conditions a juvenile shall be paroled from
detention:
* * * * *
(5) Aliens whose continued detention is not in the public interest
as determined by the district director, chief patrol agent, the Deputy
Executive Associate Commissioner for Detention and Removal, or the
Director of the Office of Juvenile Affairs.
(c) In the case of all other arriving aliens, except those detained
under Sec. 235.3(b) or (c) of this chapter and paragraph (b) of this
section, the district director, chief patrol agent, the Deputy
Executive Associate Commissioner for Detention and Removal, or the
Director of the Office of Juvenile Affairs may, after review of the
individual case, parole into the United States temporarily in
accordance with section 212(d)(5)(A) of the Act, any alien applicant
for admission, under such terms and conditions, including those set
forth in paragraph (d) of this section, as he or she may deem
appropriate. An alien who arrives at a port-of-entry and applies for
parole into the United States for the sole purpose of seeking
adjustment of status under section 245A of the Act, without benefit of
advance authorization as described in paragraph (f) of this section
shall be denied parole and detained for removal in accordance with the
provisions of Sec. 235.3(b) or (c) of this chapter. An alien seeking to
enter the United States for sole purpose of applying for adjustment of
status under section 210 of the Act shall be denied parole and detained
for removal under Sec. 235.3(b) or (c) of this chapter, unless the
alien has been recommended for approval of such application for
adjustment by a consular officer at an Overseas Processing Office.
(d) Conditions. In any case where an alien is paroled under
paragraph (b) or (c) of this section, the district director, chief
patrol agent, the Deputy Executive Associate Commissioner for Detention
and Removal, or the Director of the Office of Juvenile Affairs may
require reasonable assurances that the alien will appear at all
hearings and/or depart the United States when required to do so. Not
all factors listed need be present for parole to be exercised. The
district director, chief patrol agent, the Deputy Executive Associate
Commissioner for Detention and Removal, or the Director of the Office
of Juvenile Affairs should apply reasonable discretion. The
consideration of all relevant factors includes:
(1) The giving of an undertaking by the applicant, counsel, or a
sponsor to ensure appearances or departure, and a bond may be required
on Form I-352 in such amount as the district director, chief patrol
agent, the Deputy Executive Associate Commissioner for Detention and
Removal, or the Director of the Office of Juvenile Affairs may deem
appropriate;
* * * * *
(e) * * *
(2)(i) On notice. In cases not covered by paragraph (e)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of the district director or chief
patrol agent in charge of the area in which the alien is located, the
Deputy Executive Associate Commissioner for Detention and Removal, or
the Director of the Office of Juvenile Affairs, neither humanitarian
reasons nor public benefit warrants the continued presence of the alien
in the United States, parole shall be terminated upon written notice to
the alien and he or she shall be restored to the status that he or she
had at the time of parole. When a charging document is served on the
alien, the charging document will constitute written notice of
termination of parole, unless otherwise specified. Any further
inspection or hearing shall be conducted under section 235 or 240 of
the Act and this chapter, or any order of exclusion, deportation, or
removal previously entered shall be executed. If the exclusion,
deportation, or removal order cannot be executed within a reasonable
time, the alien shall again be
[[Page 39258]]
released on parole unless in the opinion of the district director,
chief patrol agent, the Deputy Executive Associate Commissioner for
Detention and Removal, or the Director of the Office of Juvenile
Affairs the public interest requires that the alien be continued in
custody.
* * * * *
PART 236--APPREHENSION AND DETENTION OF INADMISSABLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
5. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362;
sec. 303(b) of Div. C of Pub. L. No. 104-208; 8 CFR part 2.
6. Section 236.3 is amended by revising paragraphs (b)(4), (e) and
(f) to read as follows:
Sec. 236.3 Detention and release of juveniles.
* * * * *
(b) * * *
(4) In unusual and compelling circumstances and in the discretion
of the Director of the Office of Juvenile Affairs, a juvenile may be
released to an adult, other than those identified in paragraphs
(b)(1)(i) through (b)(1)(iii) of this section, who executes an
agreement to care for the juvenile's well-being and to ensure the
juvenile's presence at all future proceedings before the Service or an
immigration judge.
* * * * *
(e) Refusal of release. If a parent of a juvenile detained by the
Service can be located, and is otherwise suitable to receive custody of
the juvenile, and the juvenile indicates a refusal to be released to
his or her parent, the parent(s) shall be notified of the juvenile's
refusal to be released to the parent(s), and they shall be afforded the
opportunity to present their views to the district director, chief
patrol agent, Director of the Office of Juvenile Affairs or immigration
judge before a custody determination is made.
(f) Notice to parent of application for relief. If a juvenile seeks
release from detention, voluntary departure, parole, or any form of
relief from removal, where it appears that the grant of such relief may
effectively terminate some interest inherent in the parent-child
relationship and/or the juvenile's rights and interests are adverse
with those of the parent, and the parent is presently residing in the
United States, the parent shall be given notice of the juvenile's
application for relief, and shall be afforded an opportunity to present
his or her views and assert his or her interest to the district
director, Director of the Office of Juvenile Affairs or immigration
judge before a determination is made as to the merits of the request
for relief.
* * * * *
PART 238--EXPEDITED REMOVAL OF AGGRAVATED FELONS
7. The authority citation for part 238 continues to read as
follows:
Authority: 8 U.S.C. 1228; 8 CFR part 2.
8. Section 238.1(a) is revised to read as follows:
Sec. 238.1 Proceedings under section 238(b) of the Act.
(a) Definitions. As used in this part the term:
Deciding Service officer means a district director, chief patrol
agent, or another immigration officer designated by a district
director, chief patrol agent, the Deputy Executive Associate
Commissioner for Detention and Removal, or the Director of the Office
of Juvenile Affairs, so long as that person is not the same person as
the Issuing Service Officer.
Issuing Service officer means any Service officer listed in
Sec. 239.1 of this chapter as authorized to issue notices to appear.
* * * * *
PART 239--INITIATION OF REMOVAL PROCEEDINGS
9. The authority citation for part 239 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.
10. Section 239.1 is amended by:
a. Removing the word ``or'' from the end of paragraph (a)(21);
b. Removing the period from the end of paragraph (a)(22) and adding
a ``;'' in its place; and by
c. Adding paragraphs (a)(23) and (a)(24).
The additions read as follows:
Sec. 239.1 Notice to appear.
(a) * * *
(23) The Director of the Office of Juvenile Affairs; or
(24) The Deputy Executive Associate Commissioner for Detention and
Removal.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
11. 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; sec. 202, Pub. L. 105-100 (111
Stat. 2160, 2193); 8 CFR part 2.
12. Section 240.25(a) is revised to read as follows:
Sec. 240.25 Voluntary departure--authority of the Service.
(a) Authorized officers. The authority contained in section 240B(a)
of the Act to permit aliens to depart voluntarily from the United
States may be exercised in lieu of being subject to proceedings under
section 240 of the Act by district directors, assistant district
directors for investigations, assistant district directors for
examinations, officers in charge, chief patrol agents, the Deputy
Executive Associate Commissioner for Detention and Removal, the
Director of the Office of Juvenile Affairs, service center directors,
and assistant service center directors for examinations.
* * * * *
13. Section 240.26(f) is revised to read as follows:
Sec. 240.26 Voluntary departure-- authority of the Executive Office
for Immigration Review.
* * * * *
(f) Extension of time to depart. Authority to extend the time
within which to depart voluntarily specified initially by an
immigration judge or the Board is only within the jurisdiction of the
district director, the Deputy Executive Associate Commissioner for
Detention and Removal, or the Director of the Office of Juvenile
Affairs. An immigration judge or the Board may reinstate voluntary
departure in a removal proceeding that has been reopened for a purpose
other than solely making an application for voluntarily departure if
reopening was granted prior to the expiration of the original period of
voluntary departure. In no event can the total period of time,
including any extension, exceed 120 days or 60 days as set forth in
section 240B of the Act.
* * * * *
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
14. The authority citation for part 241 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1231, 1253, 1255, and
1330; 8 CFR part 2.
15. Section 241.2(a) is revised to read as follows:
Sec. 241.2 Warrant of removal.
(a) Issuance of a warrant of removal. A Form I-205, Warrant of
Removal, based upon the final administrative removal order in the
alien's case shall
[[Page 39259]]
be issued by a district director, the Deputy Executive Associate
Commissioner for Detention and Removal, or the Director of the Office
of Juvenile Affairs. The district director, the Deputy Executive
Associate Commissioner for Detention and Removal, or the Director of
the Office of Juvenile Affairs, shall exercise the authority contained
in section 241 of the Act to determine at whose expense the alien shall
be removed and whether his or her mental or physical condition requires
personal care and attention en route to his or her destination.
* * * * *
16. Section 241.4 is amended by:
a. Revising paragraph (a) introductory text;
b. Revising paragraph (c)(1);
c. Revising paragraph (c)(4);
d. Revising paragraph (h)(5); and by
e. Revising paragraph (j)(3).
The revision reads as follows:
Sec. 241.4 Continued detention of inadmissible, criminal, and other
aliens beyond the removal period.
(a) Scope. The authority to continue an alien in custody or grant
release or parole under sections 241(a)(6) and 212(d)(5)(A) of the Act
shall be exercised by the Commissioner or Deputy Commissioner, as
follows: Except as otherwise directed by the Commissioner or his or her
designee, the Executive Associate Commissioner for Field Operations
(Executive Associate Commissioner), the Deputy Executive Associate
Commissioner for Detention and Removal, the Director of the Detention
and Removal Field Office or the district director may continue an alien
in custody beyond the removal period described in section 241(a)(1) of
the Act pursuant to the procedures described in this section. Except as
provided for in paragraph (b)(2) of this section, the provisions of
this section apply to the custody determinations for the following
group of aliens:
* * * * *
(c) * * *
(1) District Directors and Directors of Detention and Removal Field
Offices. The initial custody determination described in paragraph (h)
of this section and any further custody determination concluded in the
3 month period immediately following the expiration of the 90-day
removal period, subject to the provisions of paragraph (c)(2) of this
section, will be made by the district director or the Director of the
Detention and Removal Field Office having jurisdiction over the alien.
The district director or the Director of the Detention and Removal
Field Office shall maintain appropriate files respecting each detained
alien reviewed for possible release, and shall have authority to
determine the order in which the cases shall be reviewed, and to
coordinate activities associated with these reviews in his or her
respective jurisdictional area.
* * * * *
(4) Additional delegation of authority. All references to the
Executive Associate Commissioner, the Director of the Detention and
Removal Field Office, and the district director in this section shall
be deemed to include any person or persons (including a committee)
designated in writing by the Executive Associate Commissioner, the
Director of the Detention and Removal Field Office, or the district
director to exercise powers under this section.
* * * * *
(h) * * *
(5) District office or Detention and Removal Field office staff.
The district director or the Director of the Detention and Removal
Field Office may delegate the authority to conduct the custody review,
develop recommendations, or render the custody or release decisions to
those persons directly responsible for detention within his or her
geographical areas of responsibility. This includes the deputy district
director, the assistant director for detention and deportation, the
officer-in-charge of a detention center, the assistant director of the
detention and removal field office, the director of the detention and
removal resident office, the assistant director of the detention and
removal resident office, officers in charge of service processing
centers, or such other persons as the district director or the Director
of the Detention and Removal Field Office may designate from the
professional staff of the Service.
* * * * *
(j) * * *
(3) Employment authorization. The district director, Director of
the Detention and Removal Field Office, and the Executive Associate
Commissioner, may, in the exercise of discretion, grant employment
authorization under the same conditions set forth in Sec. 241.5(c) for
aliens released under an order of supervision.
* * * * *
Sec. 241.4 [Amended]
17. Section 241.4 is further amended by revising the term
``district director or Executive Associate Commissioner'' to read
``district director, Director of the Detention and Removal Field
Office, or Executive Associate Commissioner'' whenever that term
appears in the following places:
a. Paragraph (d) introductory text;
b. Paragraph (d)(2);
c. Paragraph (j)(1);
d. Paragraph (j)(2);
e. Paragraph (j)(4); and
18. Section 241.4 is further amended by revising the term
``district director or the Executive Associate Commissioner'' to read
``district director, Director of the Detention and Removal Field
Office, or Executive Associate Commissioner'' whenever that term
appears in the following places:
a. Paragraph (d)(1); and
b. Paragraph (l)(3).
19. Section 241.4 is further amended by revising the term
``district director's'' to read ``district director's or Director of
the Detention and Removal Field Office's'' whenever that term appears
in the following places:
a. Paragraph (h) paragraph heading;
b. Paragraph (h) introductory text;
c. Paragraph (h)(3);
d. Paragraph (h)(4) paragraph heading.
20. Section 241.4 is further amended by revising the term
``district director'' to read ``district director or Director of the
Detention and Removal Field Office'' whenever that term appears in the
following places:
a. Paragraph (h)(1);
b. Paragraph (h)(2);
c. Paragraph (h)(4);
d. Paragraph (j)(2).
e. Paragraph (k)(1) heading;
f. Paragraph (k)(1)(i);
g. Paragraph (k)(1)(ii);
h. Paragraph (k)(2)(i) heading;
i. Paragraph (k)(2)(i);
j. Paragraph (k)(2)(ii) heading; and
k. Paragraph (k)(2)(ii).
21. Section 241.6 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 241.6 Administrative stay of removal.
(a) Any request of an alien under a final order of deportation or
removal for a stay of deportation or removal shall be filed on Form I-
246, Stay of Removal, with the district director having jurisdiction
over the place where the alien is at the time of filing. The
Commissioner, Deputy Commissioner, Executive Associate Commissioner for
Field Operations, Deputy Executive Associate Commissioner for Detention
and Removal, the Director of the Office of Juvenile Affairs, regional
directors, or district director, in his or her discretion and in
consideration of factors listed in 8 CFR 212.5 and section 241(c) of
the Act, may grant a stay of removal or deportation for such time and
under
[[Page 39260]]
such conditions as he or she may deem appropriate. Neither the request
nor failure to receive notice of disposition of the request shall delay
removal or relieve the alien from strict compliance with any
outstanding notice to surrender for deportation or removal.
(b) Denial by the Commissioner, Deputy Commissioner, Executive
Associate Commissioner for Field Operations, Deputy Executive Associate
Commissioner for Detention and Removal, Director of the Office of
Juvenile Affairs, regional director, or district director of a request
for a stay is not appealable, but such denial shall not preclude an
immigration judge or the Board from granting a stay in connection with
a previously filed motion to reopen or a motion to reconsider as
provided in 8 CFR part 3.
* * * * *
22. Section 241.7 is revised to read as follows:
Sec. 241.7 Self-removal.
A district director, the Deputy Executive Associate Commissioner
for Detention and Removal, or the Director of the Office of Juvenile
Affairs may permit an alien ordered removed (including an alien ordered
excluded or deported in proceedings prior to April 1, 1997) to depart
at his or her own expense to a destination of his or her own choice.
Any alien who has departed from the United States while an order of
deportation or removal is outstanding shall be considered to have been
deported, excluded and deported, or removed, except that an alien who
departed before the expiration of the voluntary departure period
granted in connection with an alternate order of deportation or removal
shall not be considered to be so deported or removed.
PART 287--FIELD OFFICERS; POWERS AND DUTIES
23. The authority citation for part 287 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8
CFR part 2.
24. Section 287.4 is amended by revising paragraphs (a)(1),
(a)(2)(i) and (c) to read as follows:
Sec. 287.4 Subpoena.
(a) * * *
(1) 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 District Directors, Investigations,
Supervisory Criminal Investigators (Anti-Smuggling), Regional
Directors, Office of Professional Responsibility, Service Center
Directors, Assistant District Directors for Examinations, the Deputy
Executive Associate Commissioner for Detention and Removal, and the
Director of the Office of Juvenile Affairs, may issue a subpoena
requiring the production of records and evidence for use in criminal or
civil investigations.
(2) * * *
(i) Prior to commencement of proceedings. All District Directors,
Deputy District Directors, Chief Patrol Agents, Deputy Chief Patrol
Agents, Officers-in-Charge, the Deputy Executive Associate Commissioner
for Detention and Removal, and the Director of the Office of Juvenile
Affairs, 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, other than under 8 CFR part 355, or any
application made ancillary to the proceeding.
* * * * *
(c) Service. 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 and the Office of Professional
Responsibility, having administrative jurisdiction over the office in
which the subpoena is issued. The Deputy Executive Associate
Commissioner for Detention and Removal and the Director of the Office
of Juvenile Affairs 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 Service, fee and
mileage need not to be tendered at the time of service. A record of
such service shall be made and attached to the original copy of the
subpoena.
* * * * *
25. Section 287.5 is amended by:
a. Removing the word ``or'' from the end of paragraph (e)(2)(xix);
b. Removing the period from the end of paragraph (e)(2)(xx) and
adding a ``;'' in its place; and by
c. Adding paragraphs (e)(2)(xxi) and (e)(2)(xxii).
The additions read as follows:
Sec. 287.5 Exercise of power by immigration officers.
* * * * *
(e) * * *
(2) * * *
(xxi) the Director of the Office of Juvenile Affairs; or
(xxii) the Deputy Executive Associate Commissioner for Detention
and Removal.
* * * * *
Dated: June 3, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-14348 Filed 6-4-02; 2:52 pm]
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