AG Issues Proposed Rule Requiring "Surrender" of Noncitizens

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

AG ISSUES PROPOSED RULE REQUIRING "SURRENDER" OF NONCITIZENS
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

Attorney General John Ashcroft has issued a proposed rule that would require all non-U.S. citizens to turn themselves in to the Immigration and Naturalization Service within 30 days of the date that a removal order against them becomes administratively final. Individuals who fail to comply with this "surrender" requirement would become ineligible for discretionary relief for a period of 10 years, unless they could demonstrate that their failure to surrender was due to exceptional circumstances.

Former Attorney General Janet Reno first proposed a surrender rule for noncitizens with final removal orders in September 1998. That proposal, which was never implemented, would have applied only prospectively to noncitizens placed in proceedings after the effective date of a final rule. In contrast, the new rule would apply to noncitizens already in proceedings, as long as they receive notice of the surrender requirement.

Under the proposed rule, noncitizens may not be released from INS custody unless they agree in writing or on the record to surrender should they become subject to a final order of removal. Immigration judges and the Board of Immigration Appeals are also required to give notice to all noncitizens of the surrender requirement at the time that they issue any decision in a case. Noncitizens subject to the surrender requirement must surrender to the Detention and Removal Program of the INS district office with jurisdiction over the place where their removal hearing was completed. Individuals who become subject to a final removal order while incarcerated in a local, state, or federal facility must surrender within 30 days of their release from custody. The duty to surrender is suspended for individuals who obtain a stay from the INS, the Executive Office for Immigration Review, or a federal court, and the 30-day surrender period begins again on the day such a stay is lifted.

Noncitizens who fail to comply with the surrender requirement after receiving notice of it become ineligible while in the United States, and for a 10-year period following departure from the country, for discretionary relief. They are barred from the following forms of relief: asylum, cancellation of removal, voluntary departure, adjustment of status, change of status, registry, and 212(h) and 212(i) waivers. The rule also provides that motions to reopen or reconsider will not be granted to noncitizens who have failed to comply with the surrender requirement unless (1) the INS district director waived the requirement, or (2) the noncitizen demonstrates by clear and convincing evidence that the failure to surrender was due to exceptional circumstances and that he or she surrendered for removal as soon as possible after those circumstances ended.

The deadline for submitting comments on the proposed rule was June 10, 2002.

67 Fed. Reg. 31,157 (May 9, 2002).