Administrative Deportation Procedures for Aliens Convicted of Aggravated Felonies Who Are Not Lawful Permanent Residents

Section 130004(a) of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322, created a new section 242A(b) of the Act, 8 U.S.C. 1252a(b), to provide for the deportation without an immigration court hearing of certain aliens convicted of aggravated felonies. On August 24, 1995, the Service published a final rule at 60 FR 43954 to create 8 C.F.R. 242.25 that implemented section 242A(b) of the Act. Section 442 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modified section 242A(b) and required that the Attorney General publish implementing regulations by January 1, 1997, to take effect 60 days after publication. On September 30, 1996, however, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208. Section 304(c) of the IIRIRA, effective April 1, 1997, further amended administrative deportation proceedings by nullifying some of the amendments made by the AEDPA and by renumbering the statutory section from section 242A(b) of the Act to section 238(b). The AEDPA amendments would require significant changes in operational procedures and forms that are not worthwhile, given that those amendments will be effective only for approximately 1 month. For example, the AEDPA added the requirement that administrative deportation proceedings be ``conducted in, or translated for the alien into, a language the alien understands.'' This provision would require the Service to translate all documents used in the proceedings, rather than only the Form I-851, Notice of Intent to Issue Final Administrative Deportation Order. (Current translation and explanation requirements are set forth in 8 CFR 242.25(b)(2)(iv)). Since the IIRIRA has eliminated the statutory translation requirement, it would be unduly burdensome to implement this requirement for 1 month. Accordingly, as a policy matter, the Service has determined that these implementing regulations will simply announce a suspension of the operation of administrative deportation proceedings, which includes the issuance of both Form I-851 and Form I-851A, Final Administrative Order of Deportation, until the implementing regulations for the IIRIRA, under separate notice of proposed rulemaking, are effective. The Service will continue to process aliens under the current version of 8 CFR 242.25 until March 3, 1997. From that date until the IIRIRA amendments to administrative deportation take effect, the Service will cease all administrative deportation proceedings. During that period, aliens otherwise amenable to administrative deportation will be placed instead in regular deportation proceedings before an immigration judge. This change does not affect the enforceability of administrative deportation orders previously entered. The Service has determined that the publication of this rule as a final rule is based upon the ``good cause'' exceptions found at 5 U.S.C. 553(b)(3)(B). The Service has determined that public notice and comment on this rule is impracticable because of the January 1, 1997, statutory deadline for publishing a final rule. In addition, public notice and comment is unnecessary because the final rule makes no change that affects an individual's rights. It simply continues until March 3, 1997, the existing rules governing administration deportation. On that date, the Service will suspend administrative deportation proceedings, and proceed under existing regulations governing regular deportation proceedings. Since there will be public notice and comment on the IIRIRA amendments to administrative deportation proceedings, public notice and comment on this final rule is unnecessary.

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 this rule will not have a significant economic impact on a substantial number of small entities because the affected parties are individual aliens who have been ordered deported from the United States.

Executive Order No. 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 No. 12612

The regulation adopted herein 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order No. 12988

The rule meets the applicable standards set forth in sections 3(a) and (3)(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 242

Administrative practice and procedure, Aliens, Deportation. Accordingly, part 242 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALL ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

1. The authority citation for part 242 continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252a, 1252b, 1254, 1362; 8 CFR part 2.

2. In section 242.25 a new paragraph (i) is added to read as follows:

Sec. 242.25 Proceedings under section 242A(b) of the Act.

* * * * * (i) Effective March 3, 1997, the Service will cease issuance of both Form I-851 and Form I-851A. The Service retains the authority to execute at any time Form I-851A that is final before March 3, 1997. The Service will resume the issuance of Form I-851 and Form I-851A after April 1, 1997, pursuant to regulations implementing section 238(b) of the Act, as amended by the Illegal Immigration Reform and Responsibility Act of 1996.

Dated: December 20, 1996. Doris Meissner, Commissioner, Immigration and Naturalization Service. [FR Doc. 96-33092 Filed 12-24-96; 10:56 am] BILLING CODE 4410-01-M