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DOJ Proposes Rule Requiring Individuals With Final Removal Order To Surrender
by Cyrus D. Mehta

Background and Purpose

On September 4, 1998, the Department of Justice published a proposed rule in the Federal Register at 63 FR 472.05 outlining the procedures that must be followed by an alien subject to a final order of removal.

The purpose of these rules is to establish procedures for aliens who have received a final order of removal to surrender to the INS for removal from the United States.

Pursuant to § 241(a) of the Immigration and Nationality Act (“INA”), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”), an alien subject to a final order of removal may be detained for up to 90 days and removed from the United States. Many individuals, however, may not be in INS custody at the time that their removal orders become administratively final. The new rules impose an affirmative obligation upon such individuals to surrender for removal and provide an incentive for compliance by denying future discretionary relief for absconders who fail to comply.

Who Will Be Affected By the Rules When Finalized?

The rule will apply to those individuals who receive notice at any point in immigration proceedings of their duty to surrender following any final order of exclusion, deportation, or removal and of the consequences of failure to surrender. Aliens placed in removal proceedings after the effective date of the new regulation will be served written notice of the duty to surrender in the Notice to Appear.

Individuals already in proceedings will receive notice of the duty to surrender and the consequences of failure to surrender by one of several methods such as: (1) from the Immigration Judge (“IJ”), (2) from the Board of Immigration Appeals (“BIA”), (3) from the District Director prior to any release from custody, or (4) in any other manner whereby written notice may be effectuated.

How Will This Rule Affect Individuals With Final Removal Orders?

Individuals who receive the requisite notice under this rule, if not already in INS custody, must surrender to the INS within 30 days of issuance of an administratively final order of removal by either an IJ or the BIA.

An alien who has been granted voluntary departure is given an order of removal that automatically becomes administratively final if the alien does not depart under the grant of voluntary departure. Therefore, aliens granted voluntary departure who have failed to depart voluntarily must surrender for removal on the first business day following the date the alternate order of removal becomes effective.

Where Must the Alien Go To Surrender?

The rules would require the alien to surrender to the Detention and Removal Program of the INS district office with jurisdiction over the place where the IJ completed removal proceedings. The INS may also designate an alternate location upon providing notice.

What Are the Consequences for Those Who Fail To Surrender as Required?

The supplementary proposed rule provides that those who fail to surrender, as required, will be denied discretionary relief from removal by the Attorney General under INA §§ 208(a) (asylum), 212(h) (waiver of inadmissibility for criminal convictions), 212(i) (waiver of inadmissibility for fraud), 240A (cancellation of removal), 240B (voluntary departure), 245 (adjustment of status of a lawful permanent resident), 248 (change of nonimmigrant status) and 249 (registry). Discretionary relief under these sections will be denied at any time while the alien remains in the United States and for a period of ten years after he or she leaves the United States.

Can Denial of Discretionary Relief Be Waived?

The supplementary proposed rule provides the District Director with discretion to waive denial of discretionary relief if the alien demonstrates that the failure to surrender was due to exceptional circumstances and that he or she appeared as soon as possible thereafter as circumstances allowed.

Exceptional circumstances are defined as they are in INA § 240(e)(1), that is, “serious illness of the alien or serious illness or death of the spouse, child or parent of the alien, but not including less compelling circumstances beyond the control of the alien.” Ignorance of the law or reliance on advice of counsel or other individuals does not constitute “exceptional circumstances.”

What Effect Would he Failure to Surrender Have on Motions to Reopen or Reconsider?

The removal proceedings of an alien who failed to surrender for removal would not be opened unless the alien could demonstrate by clear and convincing evidence that the failure to surrender was due to exceptional circumstances as defined above, and that he or she actually surrendered for removal as soon as possible after the circumstances that prevented timely surrender had passed. All other time and numerical rules governing motions to reopen and reconsider before the IJ and the BIA apply pursuant to 8 C.F.R. §§ 3.23 and 3.2

Tolling of Surrender Period for Federal Court Review

It is important to note that the filing of a petition for review in federal court does NOT result in an automatic stay of the removal order. The alien must specifically request a stay of removal and must notify the INS that such stay is being sought. Should a stay be granted, the order cannot be executed and the duty to surrender is suspended. Likewise, if a stay is ordered pending a motion to reopen, the order cannot be executed and the duty to surrender is suspended. The alien’s duty to surrender to the INS within 30 days begins anew on the day the stay is lifted.

Conclusion

The new proposed supplementary rules have a number of harsh provisions such as retroactivity, the denial of discretionary forms of relief such as asylum, and the length of the surrender period. Another area of concern is how the new rule affects those who seek to reopen their deportation or removal proceedings within the period permitted by statute (90 days to reopen an order of removal/deportation before the IJ or BIA and 180 days to reopen to rescind an in absentia order of removal before the IJ). The duty to surrender within thirty days of a final order of removal conflicts with these statutory provisions that are meant to allow individuals a fair opportunity to reopen their case within either 90 days or 180 days (in the case of an in absentia order of removal). Furthermore, a motion to reopen proceedings in the case of an individual who did not receive notice of his or her hearing may be filed at any time. Likewise, motions to reopen proceedings to present evidence of changed country conditions that might alter the outcome of an asylum case are also exempt from the time and numeric limitations imposed on motions to reopen. Therefore, one would hope that the final version of these rules takes into account these statutory provisions.

Written comments regarding the new rules must be submitted on or before June 10, 2002 and must be sent to: Director, Regulations and Forms Services Division (HQRFS), Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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