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[Federal Register: July 19, 2004 (Volume 69, Number 137)]
[Proposed Rules]               
[Page 42901-42912]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy04-23]                         

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

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 236 and 241

[ICE No. 2317-04]
RIN 1653-AA41

DEPARTMENT OF JUSTICE

8 CFR Parts 1236, 1240 and 1241

[EOIR No. 146P; AG Order No. 2726-2004]
RIN 1125-AA50

 
Execution of Removal Orders; Countries to Which Aliens May Be 
Removed

AGENCY: United States Immigration and Customs Enforcement, Department 
of Homeland Security; Executive Office for Immigration Review, 
Department of Justice.

ACTION: Joint notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Secretary of Homeland Security and the Attorney General 
publish this joint notice of proposed rulemaking to amend their 
respective agencies' regulations pertaining to removal of aliens.
    The Department of Homeland Security proposes to amend its rules to 
establish that acceptance by a country is not required under specific 
provisions of section 241(b) of the Immigration and Nationality Act 
(Act) in order to remove an alien to that country, and that a 
``country'' for the purpose of removal is not premised on the existence 
or functionality of a government in that country. This rule clarifies 
the countries to which an alien may be removed and the situations in 
which the Secretary of Homeland Security will remove an alien to an 
alternative or additional country. The Department of Homeland Security 
proposed rule also makes technical changes as a result of amendments to 
the Act by the Homeland Security Act of 2002 (HSA).
    The Department of Justice proposed rule clarifies the procedure for 
an alien to designate the country to which he would prefer to be 
removed, provides that the immigration judge shall inform any alien 
making such a designation that the alien may be removed to another 
country under section 241(b) of the Act in the discretion of the 
Secretary of Homeland Security in effecting the foreign policy of the 
United States, and clarifies the effect of an identification of a 
country for removal in an immigration judge's order of removal from the 
United States. The rule clarifies that acceptance by a country is not a 
factor to be considered by the immigration judge in identifying a 
country or countries of removal in the administrative order of removal. 
The Department of Justice proposed rule also makes technical changes to 
eliminate unnecessary provisions and update references to reflect the 
enactment of the HSA.

DATES: Written comments must be submitted to the appropriate agency on 
or before August 18, 2004.

ADDRESSES: Please submit written comments pertaining to the Department 
of Homeland Security proposed rule to Director, Regulations and Forms 
Services Division, Department of Homeland Security, 425 I Street, NW., 
Room 4034, Washington, DC 20536. To ensure proper handling, please 
reference ICE No. 2317-04 on your correspondence. Comments may also be 
submitted electronically to the Department of Homeland Security at 
rfs.regs@dhs.gov. Comments submitted electronically must include the 

ICE No. 2317-04 in the subject heading to ensure that the comments can 
be transmitted electronically to the appropriate program office. 
Comments are available for public inspection at the above address by 
calling (202) 514-3048 (not a toll-free call) to arrange for an 
appointment.
    Please submit written comments pertaining to the Department of 
Justice proposed rule to Kevin Chapman, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041. To ensure proper handling, please 
reference RIN No. 1125-AA50 on your correspondence. You may view an 
electronic version of this proposed rule at http://www.regulations.gov. You 

may also comment via the Internet to the Executive Office for 
Immigration Review (EOIR) at eoir.regs@usdoj.gov or by using the 
http://www.regulations.gov comment form for this regulation. When submitting 

comments electronically, you must include RIN No. 1125-AA50 in the 
subject box.

FOR FURTHER INFORMATION CONTACT: Regarding the Department of Homeland 
Security proposed rule: Mark Lenox, U.S. Immigration and Customs 
Enforcement, Department of Homeland Security, 801 I Street, NW., Suite 
800, Washington, DC 20536, telephone (202) 616-9166 (not a toll-free 
call).
    Regarding the Department of Justice proposed rule: Kevin Chapman, 
Acting General Counsel, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2600, Falls Church, Virginia

[[Page 42902]]

22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

A. The Purpose of the Proposed Regulations
B. The Statutory Requirements for Removing Aliens to a Country
C. Effectuation of Orders and Warrants of Removal
D. The Act and Legislative Policy concerning ``Acceptance''
E. Removal to a Country and the Foreign Relations of the United 
States
F. Administrative and Judicial Interpretations
G. Clarifying the Immigration Judge's Order of Removal from the 
United States
H. Joint and Independent Notice of Proposed Rulemaking
I. Conforming Revisions

Department of Homeland Security

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

Department of Justice

PART 1236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES
PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

A. The Purpose of the Proposed Regulations

    Section 241(b)(1) and (2) of the Immigration and Nationality Act 
(Act) (8 U.S.C. 1231(b)(1) and (2)) provide the process for determining 
the countries to which an alien \1\ may be removed after a hearing 
before an immigration judge, the issuance of a final order finding that 
the alien is removable from the United States and not eligible for 
relief from removal, and disposition of any administrative and judicial 
appeals.
---------------------------------------------------------------------------

    \1\ The proposed regulations and this Supplementary Information 
use two distinct terms: the term ``alien'' is broader than the term 
``respondent,'' which includes only aliens while they are in removal 
proceedings. Accordingly, the Department of Homeland Security rule 
uses the term ``alien,'' the Department of Justice rule uses the 
term ``respondent,'' and the Supplementary Information uses the term 
that is applicable in the specific context. The Immigration and 
Nationality Act generally uses the term alien and is not as discrete 
as the regulations.
---------------------------------------------------------------------------

    Section 241(b)(1) of the Act relates to arriving aliens whom the 
Department of Homeland Security (DHS) has placed in removal 
proceedings, a relatively small category because most arriving aliens 
are subject to expedited removal under section 235 of the Act (8 U.S.C. 
1225). Section 241(b)(1) provides a two-step process to determine the 
country of removal for an arriving alien: (1) to the country from which 
the alien boarded a conveyance to the United States; or (2) to an 
alternative country, such as the country of citizenship or birth.
    Section 241(b)(2) of the Act applies in the far more common 
circumstance of the removal of other (i.e., non-arriving) aliens. 
Section 241(b)(2) provides a three-step process to determine the 
country of removal for these aliens: (1) the country designated by the 
alien; (2) an alternative country of which the alien is a subject, 
national or citizen, with certain conditions; and (3) an additional 
country, such as the country from which the alien boarded a conveyance 
to the United States or of the alien's residence or birth.
    Sections 241(b)(1) and (2) of the Act use the terms ``country'' and 
``accept'' without any statutory definition. Some subparagraphs of 
paragraph (b)(2) state that the alien is to be removed to a ``country'' 
that will ``accept'' the alien, while other provisions do not state 
that a ``country'' must ``accept'' the alien. The United States courts 
of appeals have differed on the meaning and effect of these terms. 
Compare Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 
S.Ct. 1407 (2004) (No. 03-674), with Ali v. Ashcroft, 346 F.3d 873 (9th 
Cir. 2003), petition for reh'g pending (No. 03-35096, 9th Cir.). These 
rules propose to implement the provisions of the Act and amend the 
regulations of the Department of Homeland Security and the Department 
of Justice in response to this intercircuit conflict.

B. The Statutory Requirements for Removing Aliens to a Country

    When an alien is charged with being removable from the United 
States, he or she is provided with a hearing before an immigration 
judge and asked whether he or she admits or denies the allegations of 
fact and concedes or disputes the charges in the Notice to Appear. 
Except for arriving aliens covered by section 241(b)(1) of the Act, the 
immigration judge then inquires if the alien wishes to designate a 
country to which he prefers to be removed if removal from the United 
States is required. Upon such designation by the alien, or refusal to 
designate, the immigration judge will specify a country, or countries 
in the alternative, on the record. If the immigration judge finds the 
respondent to be removable and ineligible for relief from removal, the 
immigration judge will enter an order of removal from the United 
States. That order may be appealed to the Board of Immigration Appeals 
(Board) and the courts. When an order of removal from the United States 
becomes final, the Department of Homeland Security is responsible for 
executing the order and will issue a Warrant of Removal.
    Section 241(b)(1) of the Act provides that the Secretary shall 
ordinarily remove the alien to the country in which the respondent 
boarded the vessel or aircraft on which the alien arrived in the United 
States. If removal to that country is not possible because its 
government is ``unwilling to accept the alien into that country's 
territory, removal shall be to any of the following countries'':
    (i) The country of which the alien is a citizen, subject, or 
national.
    (ii) The country in which the alien was born.
    (iii) The country in which the alien has a residence.
    (iv) A country with a government that will accept the alien into 
the country's territory if removal to each country described in a 
previous clause of this subparagraph is impracticable, inadvisable, or 
impossible.
Section 241(b)(1)(C) of the Act.
    For all other aliens, section 241(b)(2) of the Act sets out the 
order, or sequence, of countries and territories to which the Secretary 
shall remove the alien. Generally, an alien in removal proceedings will 
be removed to the country he or she designates before the immigration 
judge. However, there are a number of exceptions to this requirement. 
For example, the alien's designation may be disregarded if the 
government of the country is not willing to accept the alien into the 
country.
    If one of the exceptions applies, the Secretary shall remove the 
alien to an alternative country. Section 241(b)(2)(D) of the Act 
provides that, if an alien is not removed to the country designated by 
the alien, the Secretary shall remove the alien to a country of which 
the alien is a subject, national, or citizen unless the government of 
that country--(i) does not inform the Secretary or the alien finally, 
within 30 days after the date the Secretary first inquires or within 
another period of time the Secretary decides is reasonable, whether the 
government will accept the alien into the country; or (ii) is not 
willing to accept the alien into the country.
    Finally, if removal to an alternative country cannot be made under 
section 241(b)(2)(D) of the Act, subsection (E) provides that the 
Secretary shall remove the alien to any of the following countries:
    (i) The country from which the alien was admitted to the United 
States.

[[Page 42903]]

    (ii) The country in which is located the foreign port from which 
the alien left for the United States or for a foreign territory 
contiguous to the United States.
    (iii) A country in which the alien resided before the alien entered 
the country from which the alien entered the United States.
    (iv) The country in which the alien was born.
    (v) The country that had sovereignty over the alien's birthplace 
when the alien was born.
    (vi) The country in which the alien's birthplace is located when 
the alien is ordered removed.
    (vii) If impracticable, inadvisable, or impossible to remove the 
alien to each country described in a previous clause of this 
subparagraph, another country whose government will accept the alien 
into that country.
The determination of the country to which the alien is removed under 
section 241(b)(2)(D) and (E) is exclusively within the discretion of 
the Secretary.
    The structure of the sequence of countries for removal is clear. 
However, one circuit court has interpreted the final clause of 
subparagraph (E)(vii), which restricts removal to countries where 
governments will accept the alien, as modifying the entire 
subparagraph. As explained in Part D, the Secretary and the Attorney 
General find that the better reading of the statute is that this 
language modifies only clause (vii). Accordingly, if the Secretary is 
unable to remove an alien to a country of designation or an alternative 
country in subparagraph (D), the Secretary may, in his discretion, 
remove the alien to any country listed in subparagraphs (E)(i) through 
(E)(vi), whether or not those countries will accept the alien. The 
proposed regulations implement this interpretation and eliminate 
provisions that could be confusing.

C. Effectuation of Orders and Warrants of Removal

    Once an alien receives a final order of removal, the Department of 
Homeland Security issues a Warrant of Removal, and the process of 
returning that alien begins. Generally, the first step in the removal 
process is to ensure that the alien has a valid travel document from 
the country to which he is to be returned. A valid travel document may 
consist of a passport from that country (and even an expired passport 
in certain cases), a laissez passer, or other evidence that the 
Department of State and DHS believe is sufficient to authorize the 
alien's international travel, depending on the country involved and the 
specific relations with that country and any intervening transit 
countries. In some cases, no travel document is used in the 
repatriation.
    For example, thousands of Mexican nationals are returned across the 
border to Mexico each year without notification to the government of 
Mexico and without the requirement of a travel document. Additionally, 
the United States routinely repatriates aliens without requesting 
separate travel documents where aliens are apprehended with or provide 
DHS Immigration and Customs Enforcement (ICE) with valid travel 
documents. In many cases, repatriations using existing travel documents 
do not involve specific notification to the alien's home country.
    In those cases where a valid travel document does not exist, the 
DHS Detention and Removal program contacts the foreign government's 
embassy or consulate in the United States and attempts to obtain a 
travel document valid for the return of the alien. The local field 
office of Detention and Removal sends to the embassy or consulate a 
travel document request that consists of biographical forms, documents 
that establish nationality, and other documents that may be requested 
by the embassy or consulate. Contact with the foreign government may 
also include specific contacts through the Chief of Mission of the 
United States Embassy in that country with the Foreign Minister of that 
country and between other officers of the United States Department of 
State and the foreign country's appropriate Ministry. Once the travel 
document has been secured, travel arrangements are made, the alien is 
returned and the Warrant of Removal is executed. The negotiation of 
travel documents for an alien to a foreign country may be routine and 
accomplished at the staff level, or may require negotiation by 
ambassadors, depending on the specific country, the international 
relations with that country, specific events and other negotiations 
with that country, and even the specific alien's identity, at the time 
the travel documents are negotiated.
    Depending upon the country, this travel document issuance process 
can take from days to months. The question of how long the process 
takes in many instances reflects the general relationship the United 
States has with a given country. There are certain countries that have 
historically steadfastly refused to issue documents, even though they 
know that a given alien is a national of their country. ICE and the 
Department of State have attempted to reach an accord or agreement with 
these countries and will continue to do so.
    As a matter of historical practice, ICE has not attempted with any 
frequency to remove aliens to a particular foreign country if the 
country has a functioning central government and that government 
objects to the alien's entry. As a practical matter, removal to a 
country with a functioning central government is very unlikely to occur 
unless that government at least implicitly ``accepts'' the alien.
    Also, there are a variety of ways in which foreign governments have 
manifested their willingness to ``accept'' a removed alien. Acceptance 
has not always been expressed through any formal declaration or 
documentation, and it has not always been specific to an individual 
alien--an established, agreed-upon practice for dealing with a 
particular class of aliens has been sufficient. Removal practices vary 
from country to country. In fact, ICE uses several methods to 
accomplish the physical removal of aliens from the United States. For 
example, ICE officers may escort an alien to the United States border, 
and watch the alien cross the border into a foreign country such as 
Mexico without more than a determination that the individual is of 
Mexican nationality or citizenship.
    ICE officers may place an alien on a commercial or charter carrier 
without further escort by ICE, and ensure that the alien is on the 
commercial or charter carrier and that the carrier departs from the 
territory of the United States, such as routine returns to most 
countries of the world, even though intervening transit countries may 
have only an implicit or tacit agreement to permit the transit of the 
alien. This is the most common scenario for non-contiguous countries 
and their citizens or natives and is used routinely for thousands of 
aliens to most of the nearly 200 countries of the world. For any 
transit that involves an intervening layover before reaching the final 
ticketed destination, DHS recognizes that under this scenario, the 
alien's actual return to a specific country of nativity or citizenship 
(though paid for by the United States) is entirely dependent on that 
alien's continuation of through transit ticketing and whether any 
through transit country will permit the alien to deviate from the 
existing ticketing.
    ICE officers alternatively may accompany an alien when he or she is 
placed on a commercial or charter carrier through transit to a final 
destination. This extensive escort service is generally only employed

[[Page 42904]]

when removing an alien from the United States where there is a risk of 
flight or concern about the public safety, such as in the case of 
certain criminal aliens. These cases require greater cooperation of any 
transit countries and may entail specific routing of the alien and his 
or her escort through specific cooperating countries, even though more 
costly and indirect. For example, while DHS routinely utilizes the 
Kingdom of the Netherlands as a transit country, it is unable to 
transit nationals of Burundi through the Netherlands, based upon the 
latter country's request.
    Except for the first method of removal, each of these scenarios may 
involve the alien stopping in a country of transit prior to his or her 
final destination. In addition, ICE officers who escort aliens may stop 
accompanying the alien once the alien stops at and passes through a 
country of transit on to his or her final destination. For example, an 
alien being removed to India on a flight transiting through the 
Netherlands may only be accompanied to the door of the plane in the 
Netherlands, rather than being accompanied by an ICE officer all the 
way to India.
    The role of ICE officers in each of these scenarios is not to 
obtain the acceptance of the country of removal, but to ensure that the 
removal order has been carried out through witnessing the alien's 
crossing of a border, the alien's departure on a commercial or charter 
carrier, or the alien's passage into or through a transiting country on 
to his or her final destination. ICE officers are utilized to ensure 
that aliens being removed are placed at a point of no return to the 
United States. Accordingly, even though the rules distinguish between 
the immigration judge's order of removal from the United States and the 
actual removal of the alien to a different country, the actual removal 
of the alien by DHS is generally not predicated on any acceptance of 
the alien into any specific country.
    The proposed rules also address whether an alien may be removed to 
a country where there is no functioning ``government.'' With respect to 
the countries determined pursuant to sections 241(b)(1)(C)(i)-(iii) and 
(2)(E)(i)-(vi) of the Act, the proposed rules each provide that the 
absence of a ``government'' in the receiving country does not preclude 
the Secretary from removing the alien to that country. This situation 
is not entirely uncommon. In a number of transitory periods, a specific 
``country'' may not have a ``government'' or its government may not be 
recognized by the United States Government, the United Nations, or 
other foreign states or international bodies. Whether a country has a 
government is not a question that can be defined by statute or 
regulation. It does not follow, however, that the removal of aliens to 
the territory of such a receiving country must cease until a 
``government'' is organized, or until that government is recognized. 
Likewise, it is unnecessary to obtain a commitment of acceptance by the 
receiving country before travel arrangements are made and the alien is 
transported. Such a commitment is desirable, but national security 
concerns, including foreign policy concerns, as well as other Executive 
Branch interests might deem removal appropriate even in the absence of 
acceptance. Thus, where it is not possible for the United States 
Government to request the government of a receiving country to accept 
these aliens through the normal diplomatic channels, the DHS proposed 
rule provides that the Secretary can designate a country previously 
identified in section 241(b)(2)(A)-(D) of the Act when selecting an 
additional removal country pursuant to clause (E)(i)-(vi), if the 
Secretary determines the designation is in the best interests of the 
United States.
    The discussion in these proposed rules relates only to the 
determination of the country of removal for purposes of section 241(b) 
of the Immigration and Nationality Act, and does not address the 
broader issues relating to what constitutes a government and when a 
government is recognized by the United States, the latter being a 
foreign policy responsibility carried out by the Secretary of State.

D. The Act and Legislative Policy Concerning ``Acceptance''

    The first reason that the Secretary and the Attorney General 
conclude that acceptance is not required in sections 241(b)(2)(E)(i) 
through (vi) of the Act is that the statute does not require 
acceptance. In construing the Act, as with other Congressional 
enactments, the Supreme Court repeatedly has held itself ``bound to 
`assume that the legislative purpose is expressed by the meaning of the 
words used.' '' INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987) 
(quoting INS v. Phinpathya, 464 U.S. 183, 189 (1984)) (internal 
quotations omitted). That approach is consistent with the Court's more 
general admonition that ``[t]he plain meaning of legislation should be 
conclusive, except in the `rare cases [in which] the literal 
application of a statute will produce a result demonstrably at odds 
with the intentions of its drafters.' '' United States v. Ron Pair 
Enters., Inc., 489 U.S. 235, 242 (1989) (alteration in original); see 
also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) 
(``We have stated time and again that courts must presume that a 
legislature says in a statute what it means and means in a statute what 
it says there.''). The Secretary and the Attorney General follow this 
guidance in the promulgation of the proposed rules, as illustrated more 
fully below.
    The question whether ``acceptance'' is a legal prerequisite to 
removal of an alien to a particular country is likely to have practical 
significance only in situations where the reason that acceptance cannot 
be obtained is that the relevant country lacks a functioning central 
government. As a theoretical matter, the same question might arise if 
the Secretary attempted to remove an alien to a specific country over 
the objection of that country's government. As previously explained, 
however, the general practice of the Executive Branch is not to attempt 
to remove an individual under the Act to a country whose government 
refuses to accept him.
    The text of sections 241(b)(1)(C)(i)-(iii) and 241(b)(2)(E)(i)-(vi) 
of the Act (8 U.S.C. 1231(b)(1)(C)(i)-(iii) and 1231(b)(2)(E)(i)-(vi)) 
contains no requirement for acceptance in order to effectuate removal. 
To the contrary, the Act is plainly designed to give the Executive 
Branch a wide range of grounds and countries for effecting removal 
either with or without acceptance. Moreover, although the Act 
demonstrates a clear and sensible preference for effecting removal with 
acceptance under sections 241(b)(1)(A), (B) and 241(b)(2)(A)-(D) of the 
Act, it carefully preserves the discretion of the Executive Branch to 
effect removal without acceptance--except in the circumstance where the 
acceptance itself provides the only connection between the alien and 
the removal country at issue. See sections 241(b)(1)(C)(iv) and 
241(b)(2)(E)(vii) of the Act.
    As previously set out, sections 241(b)(2)(A) through (C) of the Act 
address removal to a country designated by the alien. In pertinent 
part, those provisions state that the Secretary ``shall remove'' an 
alien to the country designated by the alien (section 
241(b)(2)(A)(ii)), but that the Secretary ``may disregard a 
designation'' if, among other things, ``the government of the country 
is not willing to accept the alien into the country'' (section 
241(b)(2)(C)(iii)) or the Secretary ``decides that removing the alien 
to the country is prejudicial to the United States' (section 
241(b)(2)(C)(iv)). These

[[Page 42905]]

provisions do not prohibit removal without acceptance: If acceptance is 
provided, they require removal to the country designated by the alien 
(unless the Secretary makes a highly discretionary determination that 
such removal is against the national interest), and if acceptance is 
not provided, they permit the Secretary not to remove the alien to the 
country designated by the alien. In no circumstances do these 
provisions affirmatively prohibit removal without acceptance to the 
designated country.
    Section 241(b)(2)(D) of the Act addresses removal to a country of 
which the alien is a subject, national, or citizen. In pertinent part, 
it states that the Secretary ``shall remove'' the alien to such a 
country, unless the country ``is not willing to accept the alien.'' 
However, that provision also does not affirmatively prohibit removal to 
such countries without acceptance. Instead, it states a general rule 
requiring removal with acceptance to any country of which the alien is 
a national or citizen; and it contains an exception, which permits the 
Secretary not to remove the alien to such countries without acceptance.
    Finally, section 241(b)(2)(E) of the Act specifies ``[a]dditional'' 
removal countries if an alien is ``not removed to a country'' under the 
prior subsections. The Secretary ``shall remove'' the alien to any of 
seven specified countries or categories of countries. The first six of 
these countries or categories of countries, defined without reference 
to acceptance, describe countries with some preexisting connection to 
the alien, e.g., ``[t]he country in which the alien was born,'' in 
section 241(b)(2)(E)(iv). The final provision, section 
241(b)(2)(E)(vii), states: ``If impracticable, inadvisable, or 
impossible to remove the alien to each country described in a previous 
clause of this subparagraph, another country whose government will 
accept the alien into that country.'' The ``acceptance clause'' of this 
final provision expands the countries to which the Secretary may 
physically remove the alien to include any country that will accept the 
alien. This ``acceptance clause'' is discrete to the final clause (vii) 
of subparagraph (E) and does not apply to the previous clauses (i) 
through (vi) of subparagraph (E).
    Various structural considerations reinforce the conclusion that 
acceptance is not required. To begin with, section 241(b)(2) of the Act 
specifically imposes an acceptance requirement in subparagraph 
(E)(vii), and specifically addresses the role of acceptance in 
determining removal under subparagraphs (A) through (D). Those express 
acceptance provisions foreclose any reasonable inference that the other 
pertinent provisions, subparagraphs (E)(i) to (E)(vi), somehow 
incorporate an implied acceptance requirement. Similarly, section 
241(b)(1)(C)(iv) of the Act imposes an acceptance requirement that is 
absent from subparagraphs (C)(i) to (C)(iii). As the Supreme Court has 
repeatedly emphasized, `` `[w]here Congress includes particular 
language in one section of a statute but omits it in another section of 
the same Act, it is generally presumed that Congress acts intentionally 
and purposely in the disparate inclusion or exclusion.' '' Cardozo-
Fonseca, supra, 480 U.S. at 432 (quoting Russello v. United States, 464 
U.S. 16, 23 (1983) (in turn quoting United States v. Wong Kim Bo, 472 
F.2d 720, 722 (5th Cir. 1972))). Respecting such inclusions and 
omissions is even more important where they appear not only within the 
same statute, but also within the same section of the same statute. And 
it is yet more important when the provisions at issue are as 
``comprehensive and reticulated'' as section 241(b)(2). See, e.g., 
Great Western Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 
(2002). Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) 
(specific qualifications for service in Congress set forth in the text 
of the Constitution may not be supplemented by Congress or the States).
    Extending the narrow acceptance requirement of section 
241(b)(2)(E)(vii) of the Act to all of the provisions of subparagraph 
(E), or the narrow acceptance requirement of section 241(b)(1)(C)(iv) 
of the Act to all of the provisions of subparagraph (C), would be a 
particularly egregious violation of these general principles. 
Subparagraph (E) states six possible removal countries without 
reference to acceptance, each of which has some past connection to the 
alien, and it then creates a residual removal provision that does 
require acceptance; in turn, that residual provision is triggered when 
it is ``impracticable, inadvisable, or impossible to remove the alien'' 
to those countries--not whenever the previously specified countries 
fail to provide acceptance. To be sure, the Secretary may (but need 
not) consider it ``impracticable, inadvisable, or impossible'' to 
effect removal where a foreign power has affirmatively refused 
acceptance. But where there is no relevant government capable of 
providing acceptance, concerns of comity between sovereigns are far 
diminished. Absent impracticability, acceptance under sections 
241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act is not even an 
available option, much less a compelled one.
    A construction of the Act that maximizes the government's removal 
options is consistent with the dominant goals and objectives of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Pub. L. No. 104-208, section 305(a)(3), 110 Stat. 3009-597 (1996) 
(``IIRIRA''). As the Supreme Court has explained, ``many provisions of 
IIRIRA are aimed at protecting the Executive's discretion from the 
courts--indeed, that can fairly be said to be the theme of the 
legislation.'' Reno v. American-Arab Anti-Discrimination Committee, 525 
U.S. 471, 486 (1999) (emphasis in original). IIRIRA also sought to 
facilitate the removal of aliens, see Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. at 481-87, and to enact ``wholesale 
reform[s]'' to protect the public against rapidly ``increasing rates of 
criminal activity by aliens,'' Demore v. Kim, 538 U.S. 510, 518, 123 S. 
Ct. 1708, 1714-16 (2003).
    An interpretation of the current statutory and regulatory 
environment contrary to that set forth in these rules would erect a de 
facto amnesty program for aliens from countries that lack an effective 
``functioning government.'' Such a regime would effectively apply to 
all such aliens who cannot practicably be removed to an alternative 
removal country. For example, in the case of Somalia alone, where there 
is no functioning government recognized by the United States, the 
Department of Homeland Security estimates that this includes 
approximately 8,000 Somali nationals currently subject either to final 
orders of removal or to pending removal proceedings. Moreover, 
countries without an effective government are likely to present 
terrorism concerns, as demonstrated by the present situation in 
Somalia. See, e.g., United Nations, Report of the Panel of Experts in 
Somalia Pursuant to Security Council Resolution 1474 (Oct. 29, 2003) 
(describing activities of international terrorists in Somalia); U.S. 
Department of State, Patterns of Global Terrorism--2002, Africa 
Overview at 6 (same) (April 20, 2003) (available at http://www.state.gov/s/ct/rls/pgtrpt/2002/pdf/
) (last accessed on May 4, 

2004); Congressional Research Service, Report For Congress, Africa and 
the War on Terrorism, at 16-17 (same) (Jan. 17, 2002). The consequence 
of a theory that the Executive Branch cannot remove aliens who fail to 
qualify for asylum, withholding of removal, or temporary protected 
status, and whom no other

[[Page 42906]]

country is willing to accept, is not only that such aliens may remain 
in the United States for the indefinite future, but also that they must 
be released wholesale from immigration detention absent special 
circumstances. See Zadvydas v. Davis, 533 U.S. 678 (2001). This is 
clearly not the intent of Congress in enacting IIRIRA, and that 
approach would impair implementation of the foreign policy of the 
United States.
    The absence of a categorical prohibition against removal without 
acceptance does not render the Act's provisions to be inexplicable. 
Rather, the Act's provisions must be understood as a step-wise 
progression of determinations from the country designated by the alien 
to a country that has minimal contacts with the alien, even one that 
will not, or has not the capacity to, accept the alien.
    Section 243(d) of the Act (8 U.S.C. 1253(d)), which provides for 
the termination of visa processing in countries that do not accept 
repatriation of citizens within a reasonable time, is effectively a 
penalty for forcing the United States to reach the more complicated 
issues of acceptance on an operational basis, not a limitation on the 
authority to remove an alien. The alien terrorist removal provisions at 
section 507(c) of the Act (8 U.S.C. 1537(c)) provide an authorization 
to the Secretary to maintain custody of an alien terrorist indefinitely 
if no other country will accept the alien terrorist.
    Accordingly, the Secretary and the Attorney General find that the 
acceptance by a country is not required by the Act's language, 
structure, purpose, or intent. See INS v. Aguirre-Aguirre, 526 U.S. 415 
(1999) (according deference to Attorney General's interpretation of 
Act). Moreover, intervening Congressional action, specifically in 
passage of the Homeland Security Act, and the creation of an 
intercircuit conflict warrant a fresh consideration of the elements 
contained in these provisions and correction of prior interpretations 
of the law.

E. Removal to a Country and the Foreign Relations of the United States

    Foreign policy considerations confirm that the provisions of the 
Act at issue here should not be read to require acceptance. As the 
Supreme Court has stressed repeatedly, the right of the Executive 
Branch to remove aliens ``stems not alone from legislative power but is 
inherent in the executive power to control the foreign affairs of the 
nation.'' United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 
542 (1950). See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) 
(``power to expel or exclude aliens'' is ``a fundamental sovereign 
attribute exercised by the Government's political departments largely 
immune from judicial control'') (quoting Shaughnessy v. United States 
ex rel. Mezei, 345 U.S. 206, 210 (1953)). These considerations apply 
with special force to immigration issues arising under the Act 
involving foreign countries that are either hostile, dysfunctional, or 
lack the capacity to exercise their sovereign authority. In particular, 
in exercising authority to remove aliens under the Act, the Executive 
Branch has the responsibility to assess the foreign policy 
considerations that are presented by a foreign country that has no 
functioning government to accept its nationals. The Secretary, after 
consultation with the Secretary of State and other appropriate 
agencies, may assess such foreign policy considerations on a country-
by-country basis.
    The actual removal of an alien, even more than the designation of a 
country of removal by the alien or the identification of a country of 
removal in an immigration judge's order, ``is vitally and intricately 
interwoven with contemporaneous policies in regard to the conduct of 
foreign relations, the war power, and the maintenance of a republican 
form of government.'' Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 
(1952). Accordingly, while there may be judicial inquiry into the legal 
efficacy of the immigration judge's order, and habeas corpus may be 
sought to challenge the lawfulness of detention or restraint, the 
actual issues of to what ``country'' an alien may be removed and 
whether that country ``accepts'' the alien necessarily raise concerns 
for the separation of powers in trenching on matters committed to the 
Executive Branch. See Department of Navy v. Egan, 484 U.S. 518, 529 
(1988) (``[F]oreign policy [is] the province and responsibility of the 
Executive'') (citation and quotation omitted); Chicago & Southern Air 
Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (``[T]he 
very nature of executive decisions as to foreign policy is political, 
not judicial'').
    The proposed rule of the Department of Justice amends 8 CFR 
1240.10(f) and 1240.12 to clarify the distinction between the 
administrative adjudication and the effectuation of the alien's 
removal, which implicates the foreign relations of the United States. 
The designation by the alien, under section 241(b)(2)(A)(ii) of the 
Act, and the identification in the immigration judge's order of removal 
are subject to judicial review. However, the actual removal of the 
alien to a foreign state pursuant to the Act is an exercise of the 
Executive Branch's foreign policy function. The Secretary will consult 
as appropriate with the Secretary of State in carrying out these 
functions.
    Finally, the provisions relating to the removal of an alien to a 
foreign country (in contrast to orders of removal from the United 
States) are not for the benefit of the alien, but as a protection for 
the lawful foreign policy prerogatives of the United States. This is 
exemplified in section 241(h) of the Act (8 U.S.C. 1231(h)), which 
provides a rule of construction that ``[n]othing in this section shall 
be construed to create any substantive or procedural right or benefit 
that is legally enforceable by any party against the United States. * * 
*'' (emphasis added). This provision has rarely been construed, and 
there is no legislative history explicating Congressional purpose or 
intent. As the Supreme Court has noted, this provision is one of 
several statutory provisions that limit the circumstances in which 
judicial review of deportation decisions is available. Zadvydas v. 
Davis, 533 U.S. 678, 687-88 (2001).
    A similar provision barred an alien's claim to compel initiation of 
deportation or removal proceedings, or provide damages for failure to 
initiate proceedings and effect removal in a timely fashion. Of 
particular note is that after an intercircuit conflict had developed in 
the early 1990s over whether mandamus would lie to compel the former 
INS to commence deportation proceedings, Congress intervened by 
enacting the same ``no substantive or procedural rights'' provision in 
1994, and the courts conceded that aliens were no longer within the 
``zone of interest'' of the statute.\2\
---------------------------------------------------------------------------

    \2\ In a line of cases, the Ninth Circuit found that 
incarcerated aliens could seek mandamus to compel immediate 
deportation proceedings in light of former section 242(i) of the Act 
(8 U.S.C. 1252(i) (1988)), which provided: ``In the case of an alien 
who is convicted of an offense which makes the alien subject to 
deportation, the Attorney General shall begin any deportation 
proceeding as expeditiously as possible after the date of the 
conviction.'' See Silveyra v. Moschorack, 989 F.2d 1012, 1014 n. 1 
(9th Cir. 1993); cf. Soler v. Scott, 942 F.2d 597, 605 (9th Cir. 
1991), vacated as moot sub nom. Sivley v. Soler, 506 U.S. 969 
(1992); Garcia v. Taylor, 40 F.3d 299, 301 (9th Cir. 1994) 
(recognizing it is ``settled'' that ``prisoner aliens who seek 
mandamus to force the INS to start deportation proceedings do have 
standing''). But see Giddings v. Chandler, 979 F.2d 1104, 1108-10 
(5th Cir. 1992) (holding that an incarcerated alien lacked standing 
to invoke the Mandamus Act to compel the institution of deportation 
proceedings). On the other hand, courts had also held that no 
private right of action existed under the statute. See Urbina-
Mauricio v. INS, 989 F.2d 1085 (9th Cir. 1993) (no private cause of 
action); Aguirre v. Meese, 930 F.2d 1292, 1293 (7th Cir. 1991) 
(same); Prieto v. Gluch, 913 F.2d 1159, 1166 (6th Cir. 1990) (same), 
cert. denied, 498 U.S. 1092 (1991); Orozco v. INS, 911 F.2d 539, 541 
(11th Cir. 1990) (same); cf. Gonzalez v. INS, 867 F.2d 1108, 1109-10 
(8th Cir. 1989) (no private right of action under section 242(i), 
therefore mandamus not available). However, in 1994, Congress 
enacted a specific provision that ``nothing in Sec.  242(i) of the * 
* * Act * * * shall be construed to create any substantive or 
procedural right or benefit that is legally enforceable by any party 
against the United States or its agencies or officers or any other 
person.'' Immigration and Nationality Technical Corrections Act of 
1994, Pub. L. No. 103-416, Sec.  225, 108 Stat. 4305 (1994) 
(citations omitted). With admirable candor, the Ninth Circuit 
conceded the application of the provision as the demise of this line 
of cases: ``Congress took the opportunity in section 225 of the 
INTCA to clarify for our benefit that section [242](i) does not 
create an obligation on the part of the government toward individual 
incarcerated aliens and that such aliens lack standing to sue for 
any relief under section [242] because they are outside the `zone of 
interests' of the statute. * * * By enacting section 225, Congress 
made clear that the sole purposes of section [242](i) are economic, 
not humanitarian.'' Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995). 
See also Hernandez-Avalos v. INS, 50 F.3d 842, 844 (10th Cir. 1995), 
cert. denied, 516 U.S. 826 (1995) (consistent).

---------------------------------------------------------------------------

[[Page 42907]]

    Accordingly, Congress has acted to limit the zone of interest in 
determination of the country to which an alien may be removed and the 
alien is outside that zone of interest. Cf., Channer v. Hall, 112 F.3d 
214 (5th Cir. 1997) (damage action for delay in effecting deportation, 
resulting in State detainer to serve sentence being implemented, failed 
to state claim under statute); DiPeppe v. Quarantillo, 337 F.3d 326, 
333-34 (3rd Cir. 2003) (same language in section 239(d)(2) of the Act 
(8 U.S.C. 1229(d)(2)) relating to prompt initiation of removal 
proceedings).
    Similarly, section 241(a)(6) of the Act does not create a right to 
parole; section 241(h) of the Act expressly limits construction of the 
provision so that it does not create substantive or procedural rights. 
Benitez v. Wallis, 337 F.3d 1289, 1300 (11th Cir. 2003), cert. granted, 
124 S. Ct. 1143 (2004) (No. 03-7434). Congress has also utilized this 
construction in other circumstances to limit the zone of interest. See, 
e.g., sections 208(d)(5)(B)(7) and 238(a)(1) of the Act (8 U.S.C. 
1158(d)(5)(B)(7), 1228(a)(1)); 18 U.S.C. 1092, 2340B.
    Where the Executive Branch determines not to create rights in 
specific administrative actions, the courts have deferred to that 
determination. Cf. United States v. Caceres, 440 U.S. 741 (1979). When 
Congress itself makes this determination--as it has in section 241 of 
the Act--the Executive and Judicial Branches both must respect that 
determination. Here, Congress has determined that the zone of interest 
does not include the alien, but is limited to the implementation, 
within Congress' own limited realm, of the foreign policy of the United 
States.

F. Administrative and Judicial Interpretations

    The Board of Immigration Appeals and the courts have touched upon 
the subject of the removal of an alien to a specific country in the 
past. Certain cases warrant further comment because their precedential 
value will be affected by the interpretation of section 241 of the Act 
reflected in these proposed rules.
    In Matter of Linnas,! 19 I&N Dec. 302 (BIA 1985), aff'd on other 
grounds, Linnas v. INS, 790 F.2d 1024 (2nd Cir. 1986), the Board held 
that a deportation order could not designate the New York offices 
maintained on behalf of the ``Republic of Estonia'' as a country 
because the term ``country'' in former section 243 of the Act (8 U.S.C. 
1253 (1982)) meant, at a minimum, a foreign place with ``territory'' in 
a geographical sense and a ``government'' in the sense of a political 
organization that exercises power on behalf of the people subject to 
its jurisdiction.
    However, the only issue before the Board in Linnas was whether the 
offices maintained in New York could be a ``country'' for the purposes 
of deportation. The offices of the ``Republic of Estonia'' contained 
none of the attributes of a sovereign country. As noted by the Board, 
the Republic of Estonia possessed no land over which it asserted 
sovereignty. The New York offices were neither an embassy nor a 
chancery within the United States. These offices were not ``outside'' 
the United States and therefore were not minimally eligible as a place 
for deportation. Thus, such ``offices'' do not constitute a country in 
any use of the term. Although that was enough to decide the question 
posed by Linnas, the Board went further to describe what constitutes a 
country under the Act. In essence, this description of what constitutes 
a country is no more than dictum.\3\
---------------------------------------------------------------------------

    \3\ To place the Linnas decision in the proper context, the 
Department of Justice notes that Linnas had been tried in absentia 
and found guilty of war crimes in the Union of Soviet Socialist 
Republics (USSR), which had forcibly absorbed the Republic of 
Estonia at the conclusion of World War II. Linnas's entry into the 
United States from a displaced persons administration and subsequent 
naturalization was based on fraudulent denial of past war crimes, 
and Linnas was denaturalized. See United States v. Linnas, 527 F. 
Supp. 426 (E.D.N.Y. 1981), aff'd, 685 F.2d 427 (2nd Cir.), cert. 
denied, 459 U.S. 883 (1982) (denaturalization of Nazi war criminal 
ordered). Accordingly, Linnas attempted to avoid deportation to the 
USSR and the imposition of a sentence for war crimes. However, 
Linnas abandoned the issue raised and considered by the Board 
regarding the ``offices'' in New York and the definition of a 
country, and did not pursue it before the court of appeals.
---------------------------------------------------------------------------

    Section 241 of the Act (like former section 243 of the Act), 
however, does not mandate the result in the Board's decision. In order 
to give proper deference to the role of the Secretary of State in 
recognizing foreign governments, conducting international relations, 
and carrying out the foreign policy of the United States, and the role 
of the Secretary of Homeland Security in removing aliens under the Act, 
the Attorney General departs from the interpretation of the term 
``country'' adopted by the Board in Linnas. This rule adopts the view 
that the Department of Homeland Security is authorized to effectuate 
orders of removal of aliens from the United States under section 241(b) 
of the Act to a country as determined by the Secretary.
    In Matter of Niesel, 10 I&N Dec. 57 (BIA 1962), the Board 
considered a case involving the division of Germany into East Germany 
and West Germany after World War II. In this case, the former 
Immigration and Naturalization Service sought to deport a German 
citizen to West Germany, while she sought deportation to East Germany 
(a country that the United States did not recognize) in order to 
establish a basis to pursue asylum. The Board decided that, although 
the physical location of the alien's place of birth, last habitual 
residence, and citizenship each may have been within ``East Germany,'' 
the alien was nonetheless deportable to West Germany, making no 
distinction between the two countries.
    Neither of these cases fully establishes a record or detailed legal 
analysis of the definition of a ``country'' for removal purposes or the 
requirements for removal to a country.
    In Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 S. 
Ct. 1407 (2004), the Eighth Circuit concluded that the plain language 
of section 241(b)(2)(E) of the Act permits removal to an alien's 
country of birth and does not require that this country ``accept'' the 
alien's return. The court explained that ``as [a] matter of simple 
statutory syntax and geometry, the acceptance requirement [in section 
241(b)(2)(E)] is confined to clause (vii), and does not apply to 
clauses (i) through (vi).'' 329 F.3d at 634. This syntactic and 
geometric structure distinguished when acceptance is required and when 
acceptance is not required, but provides no guidance as to what 
constitutes ``acceptance.'' The court rejected the alien's contention 
that its interpretation of section 241(b)(2)(E) of the Act 
``nullifies'' the provision for acceptance as a condition of removal to 
the country of which the alien is a subject, national, or citizen, 
pursuant to section

[[Page 42908]]

241(b)(2)(D) of the Act. The court explained that an alien born in the 
country to which he or she is to be removed under section 
241(b)(2)(E)(iv) of the Act ``is not always a subject, national or 
citizen'' of that country, so section 241(b)(2)(D) of the Act may not 
apply to the alien at all. Id. The court also observed that ``between 
countries, it is not uncommon behavior to attempt to accomplish a task 
by asking politely first''--i.e., to attempt consensual removal under 
section 241(b)(2)(D)--``and then to act anyway if the request is 
refused.'' Id. The court concluded that its interpretation of section 
241(b)(2) does not conflict with any ``settled judicial construction'' 
of former section 243(a) of the Act (8 U.S.C. 1253 (1994)), id., and 
that the administrative decision cited by petitioner, Matter of Linnas, 
supra, did not overrule the earlier decision in Matter of Niesel, 
supra, that rejected an acceptance requirement. Id. at 635. These 
proposed rules are consistent with the court's decision in Jama.
    In Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), petition for 
reh'g pending (No. 03-35096, 9th Cir.), the Ninth Circuit found that 
the United States cannot remove aliens to a country that does not have 
a functioning government to accept them. The court of appeals did not 
provide any analysis of what a ``functioning government'' might be or 
how that might be determined--which only begs the question of which 
governments the United States will recognize and treat and which it 
will not. The Second Circuit addressed the essentially identical 
provisions of prior law in Tom Man v. Murff, 264 F.2d 926, 928 (2d Cir. 
1959), concluding that deportation under any of the subclauses now 
found in section 241(b)(2)(E) of the Act was subject to the condition 
that the country be willing to accept the alien. However, as the 
statute provides no such definition, the courts in these cases have 
essentially created their own definition.
    The sum of these cases lies in the statutory terms of ``accept'' 
and ``country,'' neither of which are defined in the Act. What 
constitutes ``acceptance'' by a ``functioning government'' of a 
``country'' clearly lies ``[i]n this vast external realm, with its 
important, complicated, delicate and manifold problems, [where] the 
President alone has the power to speak or listen as a representative of 
the nation.'' United States v. Curtiss-Wright Export Corp., 299 U.S. 
304, 319 (1936). Accordingly, the Department of Homeland Security 
proposes to amend its regulations by recognizing that the terms 
``acceptance'' and ``country'' are defined, not by the Act or by the 
courts, but by the Executive Branch, consistent with the foreign policy 
of the United States.
    The proposed rules alter the implementation of section 241 of the 
Act to ensure that ``acceptance'' by a ``country'' is limited to the 
specific subsections within section 241 of the Act, in light of 
intervening legislation and judicial decisions that warrant 
reconsideration of the regulations. Cf. Watt v. Alaska, 451 U.S. 259, 
273 (1981); see also General Electric Co. v. Gilbert, 429 U.S. 125, 143 
(1976); INS v. Cardozo-Fonseca, supra, at 446 & n.30. As Linnas and Ali 
fail to consider the statutory requirements, the extant legislative 
policies, long-standing administrative practice, or the foreign 
relations implications of these provisions, the Attorney General 
departs from Linnas and the Attorney General and the Secretary decline 
to follow Ali outside the jurisdiction of the Ninth Circuit. The 
statute does not permit the result in Tom Man and Ali, and because the 
statute is considered ambiguous, the Executive's interpretation of the 
statute is due considerable deference. Jama and Niesel may have reached 
the correct conclusion, at least in part, but more detailed analysis 
of, and deference to, the foreign relations implications of removal of 
aliens from the United States and to a foreign country is warranted.

G. Clarifying the Immigration Judge's Order of Removal From the United 
States

    Immigration judges' orders of removal from the United States have 
historically included an identification of the country to which the 
alien is to be removed, consistent with 8 CFR 1240.12(c). The Act, 
however, requires only that the alien, or the Attorney General, 
designate a country for the purpose of removal. Section 241(b)(2)(A) of 
the Act provides that the respondent (other than an arriving alien) 
``may designate one country to which the alien wants to be removed.'' 
[emphasis added].
    Furthermore, there is no requirement that this designation must be 
or is an integral element of the immigration judge's order of removal 
from the United States. The regulations currently provide:

    The immigration judge shall notify the alien that if he or she 
is finally ordered removed, the country of removal will in the first 
instance be directed pursuant to section 241(b) of the Act to the 
country designated by the alien, unless section 241(b)(2)(C) of the 
Act applies, and shall afford him or her an opportunity then and 
there to make such designation. The immigration judge shall then 
specify and state for the record the country, or countries in the 
alternative, to which the alien's removal will be directed pursuant 
to section 241(b) of the Act if the country of his or her 
designation will not accept him or her into its territory, or fails 
to furnish timely notice of acceptance, or if the alien declines to 
designate a country.

8 CFR 1240.10(f). The existing Department of Justice regulations, 8 CFR 
1240.10(g), already make clear that the Secretary, in appropriate 
circumstances, may remove an alien to a country not previously 
designated.
    The rules previously adopted by the Department of Justice do not 
specify the legal effect of the alien's designation or the immigration 
judge's order of removal from the United States. Some court decisions 
have implied that a final order of removal limits the Department of 
Homeland Security's authority to remove the alien to a country that was 
not designated, or relied upon the implication of such an 
interpretation to find error in considering applications for asylum. 
See, e.g., Kuhai v. INS, 199 F.3d 909 (7th Cir. 1999) (designation 
altered without chance to address issues); Andriasian v. INS, 180 F.3d 
1033, 1038-39 (9th Cir. 1999) (designation process adequately 
explained, but describes immigration judge order as ``ordering that 
[respondent] be deported to either Azerbaijan or Armenia''); Kossov v. 
INS, 132 F.3d 405, 407, 408 (7th Cir. 1998) (``In the alternative, the 
judge ordered the Kossovs deported to Russia.'' ``Yet the order itself 
deports the Kossovs to Russia, not Latvia.''). But see al Najjar v. 
Ashcroft, 257 F.3d 1262, 1294-96 (11th Cir. 2001) (recognizing factual 
issue of identifying country of last habitual residence and 
distinguishing previous cited cases). To the extent that the scope of 
an application for relief depends on the country to which the alien may 
be actually removed (e.g. asylum, withholding of removal, and the 
Convention Against Torture), the respondent and the Department of 
Homeland Security, and to some extent the immigration judge, share 
responsibility for ensuring that the record illuminates complete 
consideration of the application as to those countries. However, an 
implication that the order of removal from the United States itself 
requires removal only to the countries designated is not supported by 
the Act or the existing regulations.
    Moreover, the identification of a country in an order of removal 
does not override the prerogatives of the Secretary in effectuating or 
executing a removal order and warrant of removal under the statute, as 
is currently

[[Page 42909]]

recognized in 8 CFR 1240.10(g). The proposed rule clarifies that 
identification of a country or countries for removal in the immigration 
judge's order of removal from the United States does not limit the 
lawful discretion of the Department of Homeland Security in determining 
the country to which the alien should be removed, consistent with the 
requirements of section 241(b) of the Act.

H. Joint and Independent Notice of Proposed Rulemaking

    In light of a conflict among the United States courts of appeals 
over whether a foreign country must commit to accept an alien ordered 
removed from the United States before the alien may be removed to such 
a country, the Secretary of Homeland Security and the Attorney General 
publish this joint notice of proposed rulemaking to amend the 
regulations of their respective Departments pertaining to removal of 
aliens from the United States.
    The Secretary of Homeland Security proposes to amend regulations of 
the Department of Homeland Security to clarify the authority for 
removal of aliens to specific countries in the exercise of discretion 
under section 241 of the Act. The Secretary is exercising his authority 
under sections 103 and 241 of the Act (8 U.S.C. 1103, 1231).
    The Attorney General proposes to amend the regulations of the 
Department of Justice to clarify the authority and procedures before 
immigration judges in designating countries of removal in the record of 
proceedings, to clarify the scope of immigration judge orders of 
removal from the United States, and to provide further guidance in 
interpreting the Act. The Attorney General is exercising his authority 
under section 103(a)(1) and (g) of the Act, and his authority under 28 
U.S.C. 503, 509-510.
    The Secretary of Homeland Security and the Attorney General have 
undertaken to publish these proposed changes in their respective 
regulations in a single notice of proposed rulemaking as a convenience 
to the public. The rules of the Department of Homeland Security and of 
the Department of Justice will continue to implement separately the 
provisions of the Act within their respective jurisdictions. The 
Secretary of Homeland Security and the Attorney General are each acting 
independently and within their respective statutory delegations of 
authority in separately proposing amendments to the rules of their 
respective Departments as set forth in the separate proposed 
rulemakings.

I. Conforming Revisions

    Finally, both proposed rules eliminate a number of provisions from 
the Code of Federal Regulations that are unnecessary and duplicative. 
The proposed rules of the Department of Justice eliminate unnecessary 
regulations from Chapter V of title 8 of the Code of Federal 
Regulations that are within the authority of the Secretary and the 
proposed rules of the Department of Homeland Security eliminate 
unnecessary regulations from Chapter I of title 8 of the Code of 
Federal Regulations that are within the authority of the Attorney 
General. As previously noted in transitional regulations adopted by the 
Attorney General at the time the responsibilities of the former INS 
were transferred to the Department of Homeland Security--68 FR 9824 
(Feb. 28, 2003); 68 FR 10349 (March 5, 2003)--many other overlapping 
regulatory provisions were initially duplicated in Chapter V to ensure 
continuity. As planned at that time, further revision is now being made 
to refine the provisions of title 8 of the Code of Federal Regulations 
and to remove those regulations pertaining to the Department of 
Homeland Security not appropriate to be duplicated in the Department of 
Justice regulations, and vice versa. These changes are not subject to 
the notice and comment provisions of the Administrative Procedure Act, 
but the Departments would welcome comments and further suggestions.
    With the exception of certain provisions, the Department of Justice 
has determined that most of the provisions of part 1241 are properly 
codified in the regulations of the Department of Homeland Security in 8 
CFR part 241, and need not be duplicated in 8 CFR part 1241. 
Accordingly, this rule proposes to retain only 8 CFR 1241.1, 1241.3, 
1241.6(c), 1241.7 (second sentence), and 1241.31, as well as those 
portions of 8 CFR 1241.14 pertaining to the authority of the 
immigration judges to conduct hearings relating to the continued 
detention of aliens pursuant to 8 CFR 241.14. The retained sections 
deal with finality of orders of removal and deportation and proceedings 
before the immigration judges in specific cases and issues.
    The remainder of 8 CFR part 1241 deals with the execution of 
removal and deportation orders and warrants, detention after a removal 
order has been issued, and other matters that are within the authority 
of officers of the Department of Homeland Security. Those provisions 
are removed from the Department of Justice regulations, with only 
appropriate informational cross-references being inserted to the 
regulations of the Department of Homeland Security.

Administrative Matters

Regulatory Flexibility Act

    The Secretary and the Attorney General, in accordance with 5 U.S.C. 
605(b), have reviewed their respective proposed rules and, by approving 
them, certify that these rules do not have a significant economic 
impact on a substantial number of small entities. The proposed rules 
affect only individual aliens and government agencies.

Unfunded Mandates Reform Act of 1995

    These rules 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 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    Neither of these rules is a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 804. Neither rule will 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 12866

    These rules have been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Departments have determined that their respective rules are significant 
regulatory actions under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review. Accordingly, these rules have been 
submitted to the Office of Management and Budget for review.
    There are no additional costs to the Department of Justice in the 
implementation of the proposed rules other than the minimal amount of 
time required for immigration judges to explain the possibility that an 
alien may be removed to a country other than designated. Similarly, 
there are no additional costs of the Department of Homeland Security 
other than in the

[[Page 42910]]

small number of cases in which execution of an order of removal will be 
to a country other than as previously designated, in which officials of 
DHS will be required to ensure compliance with United States law and 
international obligations. There are no costs to individuals.
    The benefits of the rule lie in the clarification of the law and 
the elimination of delay in effecting a small number of removal orders, 
but these benefits are not quantifiable. In some cases, the individual 
alien will already be in the custody of DHS and, therefore, reducing 
the time required to execute an order of removal will reduce the costs 
of detaining that alien.

Executive Order 13132

    These rules 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, the respective Departments have determined that 
these rules do not have sufficient federalism implications to warrant a 
federalism summary impact statement.

Executive Order 12988

    These rules meet the applicable standards set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Paperwork Reduction Act of 1995

    These rules do not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write the individuals identified 
in the ADDRESSES section.

List of Subjects

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 1236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 1240

    Administrative practice and procedure, Aliens.

8 CFR Part 1241

    Administrative practice and procedure, Aliens, Immigration.

DEPARTMENT OF HOMELAND SECURITY

8 CFR Chapter I

Authority and Issuance

    Accordingly, for the reasons stated in the joint preamble and 
pursuant to the authority vested in me as the Secretary of Homeland 
Security, chapter I of title 8 of the Code of Federal Regulations is 
proposed to be amended as follows:

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE 
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    1. The authority citation for 8 CFR part 236 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 
2.
    2. In Sec.  236.1, paragraph (c)(1) is revised to read as follows:


Sec.  236.1  Apprehension, custody, and detention.

* * * * *
    (c) * * *
    (1) In general. No alien described in section 236(c)(1) of the Act 
may be released from custody during removal proceedings, except 
pursuant to section 236(c)(2) of the Act.
* * * * *

PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    3. The authority citation for 8 CFR part 241 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

    4. Section 241.1 is revised to read as follows:


Sec.  241.1  Final order of removal.

    An order of removal becomes final in accordance with 8 CFR 1241.1.
* * * * *
    5. Section 241.3 is amended by adding a new paragraph (d), to read 
as follows:


Sec.  241.3  Detention of aliens during removal period.

* * * * *
    (d) Information regarding detainees. Disclosure of information 
relating to detainees shall be governed by the provisions of 8 CFR 
236.6.
* * * * *


Sec.  241.4  [Amended]

    6. Section 241.4(k)(1)(i) is amended by removing the phrase 
``because no country currently will accept the alien,'' and by removing 
the phrase ``removal of the alien prior to expiration of the removal 
period'' in the first sentence.
    7. Section 241.5 is amended by revising paragraph (c)(1), to read 
as follows:


Sec.  241.5  Conditions of release after removal period.

* * * * *
    (c) * * *
    (1) The alien cannot be removed in a timely manner; or
* * * * *


Sec.  241.13  [Amended]

    8. Section 241.13 is amended by:
    a. Removing the phrase ``to the country to which the alien was 
ordered removed and there is no third country willing to accept the 
alien'' in the first sentence of paragraph (d)(1); and by
    b. Adding the term ``and'' immediately before the phrase ``the 
views of the Department of State'' and by removing the phrase '', and 
the receiving country's willingness to accept the alien into its 
territory'' in the first sentence of paragraph (f).
    9. Section 241.15 is revised to read as follows:


Sec.  241.15  Countries to which aliens may be removed.

    (a) Country. For the purposes of section 241(b) of the Act (8 
U.S.C. 1231(b)), the Secretary retains discretion to remove an alien to 
any country described in section 241(b) of the Act (8 U.S.C. 1231(b)), 
without regard to the nature or existence of a government.
    (b) Acceptance. For the purposes of section 241(b) of the Act (8 
U.S.C. 1231(b)), the Secretary retains discretion to determine the 
effect, if any, of acceptance or lack thereof, when an acceptance by a 
country is required, and what constitutes sufficient acceptance.
    (c) Absence or lack of response. The absence of or lack of response 
from a de jure or functioning government (whether recognized by the 
United States, or otherwise) or a body acting as a de jure or 
functioning government in the receiving country does not preclude the 
removal of an alien to a receiving country.
    (d) Prior commitment. No commitment of acceptance by the receiving 
country is required prior to designation of the receiving country, 
before travel arrangements are made, or before the alien is transported 
to the receiving country.
    (e) Specific provisions regarding acceptance. Where the Department

[[Page 42911]]

cannot remove an alien under section 241(b)(2)(A)-(D) of the Act, 
acceptance is not required to remove an alien to a receiving country 
pursuant to section 241(b)(2)(E)(i)-(vi) of the Act. Where the 
Department cannot remove an arriving alien under section 241(b)(1)(A) 
or (B) of the Act, acceptance is not required to remove an alien to a 
receiving country pursuant to section 241(b)(1)(C)(i)-(iii) of the Act.
    (f) Interest of the United States controlling. The Secretary or his 
designee may designate a country previously identified in section 
241(b)(2)(A)-(D) of the Act when selecting a removal country under 
section 241(b)(2)(E) of the Act (and may designate a country previously 
identified in section 241(b)(1)(A) or (B) of the Act when selecting an 
alternative removal country under subsection 241(b)(1)(C) of the Act) 
if the Secretary or his designee determines that such designation is in 
the best interests of the United States.
    (g) Limitation on construction. Nothing in this section shall be 
construed to create any substantive or procedural right or benefit that 
is legally enforceable by any party against the United States or its 
agencies or officers or any other person.
    10. Section 241.25(b) is revised to read as follows:


Sec.  241.25  Deportation.

* * * * *
    (b) Place to which deported. Any alien (other than an alien 
crewmember or an alien who boarded an aircraft or vessel in foreign 
contiguous territory or an adjacent island) who is ordered excluded 
shall be deported to the country where the alien boarded the vessel or 
aircraft on which the alien arrived in the United States. Otherwise, 
the Secretary may, as a matter of discretion, deport the alien to the 
country of which the alien is a subject, citizen, or national; the 
country where the alien was born; the country where the alien has a 
residence; or any other country.
* * * * *
    11. Section 241.31 is revised to read as follows:


Sec.  241.31  Final order of deportation.

    An order of deportation becomes final in accordance with 8 CFR 
1241.31.


Sec.  241.33  [Amended]

    12. Section 241.33(a) is amended by:
    a. Revising the second sentence in the introductory text to read 
``An order of deportation becomes final in accordance with 8 CFR 
1241.31.''; and
    b. Removing paragraphs (a)(1), (2), (3), and (4).

    Dated: July 9, 2004.
Tom Ridge,
Secretary, Department of Homeland Security.

DEPARTMENT OF JUSTICE

8 CFR Chapter V

Authority and Issuance

    Accordingly, for the reasons stated in the joint preamble and 
pursuant to the authority vested in me as the Attorney General of the 
United States, chapter V of title 8 of the Code of Federal Regulations 
is proposed to be amended as follows:

PART 1236--APPREHENSION AND DETENTION OF INADMISSIBLE AND 
DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

    1. The authority citation for part 1236 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 
1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4).

    2. Section 1236.1 is amended as follows:
    a. Paragraph (c)(1) is revised to read as set forth below; and
    b. Paragraph (f) is amended by revising ``Service'' to read 
``Department of Homeland Security'' in each place that it appears.


Sec.  1236.1  Apprehension, custody, and detention.

* * * * *
    (c) * * *
    (1) In general. No alien described in section 236(c)(1) of the Act 
may be released from custody during removal proceedings, except 
pursuant to section 236(c)(2) of the Act.
* * * * *
    3. Section 1236.2 is amended:
    a. In paragraph (a) by removing the paragraph designation and 
heading and
    b. By removing paragraph (b).


Sec. Sec.  1236.3, 1236.5, and 1236.6  [Removed]

    4. Sections 1236.3, 1236.5 and 1236.6 are removed.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    5. The authority citation for part 1240 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1229, 1229a, 1229b, 1229c, 1253, 1255, and 1362.

    6. Section 1240.10 is amended by revising paragraph (f) and 
removing paragraph (g), to read as follows:


Sec.  1240.10  Hearing.

* * * * *
    (f) Country of removal. With respect to an arriving alien covered 
by section 241(b)(1) of the Act, the country, or countries in the 
alternative, to which the alien may be removed will be determined 
pursuant to section 241(b)(1) of the Act. In any other case, the 
immigration judge shall notify the respondent that if he or she is 
finally ordered removed, the country of removal will in the first 
instance be the country designated by the respondent, except as 
otherwise provided under section 241(b)(2) of the Act, and shall afford 
him or her an opportunity then and there to make such designation. The 
immigration judge shall also identify for the record a country, or 
countries in the alternative, to which the alien's removal may be made 
pursuant to section 241(b)(2) of the Act if the country of the alien's 
designation will not accept him or her into its territory, or fails to 
furnish timely notice of acceptance, or if the alien declines to 
designate a country. In considering alternative countries of removal, 
acceptance or the existence of a functioning government is not required 
with respect to an alternative country described in section 
241(b)(1)(C)(i)-(iii) of the Act or a removal country described in 
section 241(b)(2)(E)(i)-(iv) of the Act. See 8 CFR 241.15.
    7. Section 1240.12 is amended by revising paragraph (c) and adding 
a new paragraph (d), to read as follows:


Sec.  1240.12  Decision of the immigration judge.

* * * * *
    (c) Order of the immigration judge. The order of the immigration 
judge shall direct the respondent's removal from the United States, or 
the termination of the proceedings, or other such disposition of the 
case as may be appropriate. The immigration judge is authorized to 
issue orders in the alternative or in combination as he or she may deem 
necessary.
    (d) Removal. When a respondent is ordered removed from the United 
States, the immigration judge shall identify a country, or countries in 
the alternative, to which the alien's removal may in the first instance 
be made, pursuant to the provisions of section 241(b) of the Act. In 
the event that the Department of Homeland Security is unable to remove 
the alien to the specified or alternative country or countries, the 
order of the immigration judge does not limit the authority of the 
Department of Homeland Security to remove the alien to any other 
country as permitted by section 241(b) of the Act.

[[Page 42912]]

PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

    8. The authority citation for Part 1241 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 
1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 
U.S.C. 4002, 4013(c)(4).


Sec. Sec.  1241.3, 1241.4, 1241.5, 1241.9, 1241.10, 1241.11, 1241.12, 
and 1241.13  [Removed]

    9. Sections 1241.3, 1241.4, 1241.5, 1241.9, 1241.10, 1241.11, 
1241.12, and 1241.13 are removed.
    10. Section 1241.2 is revised to read as follows:


Sec.  1241.2  Warrant of removal; detention of aliens during removal 
period.

    For the regulations of the Department of Homeland Security with 
respect to the detention and removal of aliens who are subject to a 
final order of removal, see 8 CFR part 241.
    11. Section 1241.6 is amended by revising paragraphs (a) and (b), 
to read as follows:


Sec.  1241.6  Administrative stay of removal.

    (a) An alien under a final order of deportation or removal may seek 
a stay of deportation or removal from the Department of Homeland 
Security as provided in 8 CFR 241.6.
    (b) A denial of a stay by the Department of Homeland Security 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 1003.
* * * * *


Sec.  1241.7  [Amended]

    12. Section 1241.7 is amended by removing the first sentence.
    13. Section 1241.8 is revised to read as follows:


Sec.  1241.8  Reinstatement of removal orders.

    An alien who illegally reenters the United States after having been 
removed, or having departed voluntarily, while under an order of 
exclusion, deportation, or removal may be removed from the United 
States by reinstating the prior order. See 8 CFR 241.8. The alien has 
no right to a hearing before an immigration judge in such 
circumstances, except as provided in 8 CFR 1208.2(c)(2)(i).
    14. Section 1241.14 is amended by revising paragraph (a), and 
removing and reserving paragraphs (b), (c), and (d), to read as 
follows:


Sec.  1241.14  Continued detention of removable aliens on account of 
special circumstances.

    (a) Scope. This section provides for the review of determinations 
by the Department of Homeland Security to continue the detention of 
particular removable aliens found to be specially dangerous. See 8 CFR 
241.14.
    (1) Applicability. This section applies to the review of the 
continued detention of removable aliens because the Department of 
Homeland Security has determined that release of the alien would pose a 
special danger to the public, where there is no significant likelihood 
of removal in the reasonably foreseeable future. This section does not 
apply to aliens who are not subject to the special review provisions 
under 8 CFR 241.13.
    (2) Jurisdiction. The immigration judges and the Board have 
jurisdiction with respect to determinations as to whether release of an 
alien would pose a special danger to the public, as provided in 
paragraphs (f) through (k) of this section.
* * * * *
    15. Section 1241.15 is revised to read as follows:


Sec.  1241.15  Lack of jurisdiction to review other country of removal.

    The immigration judges and the Board of Immigration Appeals have no 
jurisdiction to review any determination by officers of the Department 
of Homeland Security under 8 CFR 241.15.
    16. Section 1241.20 is revised to read as follows:


Sec.  1241.20  Aliens ordered excluded.

    For the regulations of the Department of Homeland Security 
pertaining to the detention and deportation of excluded aliens, see 8 
CFR 241.20 through 241.25.


Sec. Sec.  1241.21, 1241.22, 1241.23, 1241.24, and 1241.25  [Removed]

    17. Sections 1241.21 through 1241.25 are removed.
    18. Section 1241.30 is revised to read as follows:


Sec.  1241.30  Aliens ordered deported.

    For the regulations of the Department of Homeland Security 
pertaining to the detention and deportation of aliens ordered deported, 
see 8 CFR 241.30 through 241.33.
* * * * *

    Dated: July 12, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-16193 Filed 7-16-04; 8:45 am]
BILLING CODE 4410-10-P




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