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[Federal Register: June 7, 2002 (Volume 67, Number 110)]
[Rules and Regulations]               
[Page 39255-39260]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn02-4]                         

=======================================================================
-----------------------------------------------------------------------

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 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]
BILLING CODE 4410-10-P



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