PART 236—APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED Authority: 5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1232, 1324a, 1357, 1362, 1611; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2. Source: 62 FR 10360, Mar. 6, 1997, unless otherwise noted. Subpart A—Detention of Aliens Prior to Order of Removal § 236.1 Apprehension, custody, and detention. (a) Detainers. (b) Warrant of arrest In general. (2) If, after the issuance of a warrant of arrest, a determination is made not to serve it, any officer authorized to issue such warrant may authorize its cancellation. (c) Custody issues and release procedures In general. (ii) Paragraph (c)(2) through (c)(8) of this section shall govern custody determinations for aliens subject to the TPCR while they remain in effect. For purposes of this section, an alien “subject to the TPCR” is an alien described in section 303(b)(3)(A) of Div. C of Pub. L. 104-208 who is in deportation proceedings, subject to a final order of deportation, or in removal proceedings. The TPCR do not apply to aliens in exclusion proceedings under former section 236 of the Act, aliens in expedited removal proceedings under section 235(b)(1) of the Act, or aliens subject to a final order of removal. (2) Aliens not lawfully admitted. (i) An alien who remains in status as an alien lawfully admitted for permanent residence, conditionally admitted for permanent residence, or lawfully admitted for temporary residence is “lawfully admitted” for purposes of this section. (ii) An alien in removal proceedings, in deportation proceedings, or subject to a final order of deportation, and not described in paragraph (c)(2)(i) of this section, is not “lawfully admitted” for purposes of this section unless the alien last entered the United States lawfully and is not presently an applicant for admission to the United States. (3) Criminal aliens eligible to be considered for release. (4) Criminal aliens ineligible to be considered for release except in certain special circumstances. (i) Is described in section 241(a)(2)(C) of the Act (as in effect prior to April 1, 1997), or has been convicted of a crime described in section 101(a)(43)(B), (E)(ii) or (F) of the Act (as in effect on April 1, 1997); (ii) Has been convicted of a crime described in section 101(a)(43)(G) of the Act (as in effect on April 1, 1997) or a crime or crimes involving moral turpitude related to property, and sentenced therefor (including in the aggregate) to at least 3 years' imprisonment; (iii) Has failed to appear for an immigration proceeding without reasonable cause or has been subject to a bench warrant or similar legal process (unless quashed, withdrawn, or cancelled as improvidently issued); (iv) Has been convicted of a crime described in section 101(a)(43)(Q) or (T) of the Act (as in effect on April 1, 1997); (v) Has been convicted in a criminal proceeding of a violation of section 273, 274, 274C, 276, or 277 of the Act, or has admitted the factual elements of such a violation; (vi) Has overstayed a period granted for voluntary departure; (vii) Has failed to surrender or report for removal pursuant to an order of exclusion, deportation, or removal; (viii) Does not wish to pursue, or is statutorily ineligible for, any form of relief from exclusion, deportation, or removal under this chapter or the Act; or (ix) Is described in paragraphs (c)(5)(i)(A), (B), or (C) of this section but has not been sentenced, including in the aggregate but not including any portions suspended, to at least 2 years' imprisonment, unless the alien was lawfully admitted and has not, since the commencement of proceedings and within the 10 years prior thereto, been convicted of a crime, failed to comply with an order to surrender or a period of voluntary departure, or been subject to a bench warrant or similar legal process (unless quashed, withdrawn, or cancelled as improvidently issued). An alien eligible to be considered for release under this paragraph must meet the burdens described in paragraph (c)(3) of this section in order to be released from custody in the exercise of discretion. (5) Criminal aliens ineligible to be considered for release. (A) Is described in section 237(a)(2)(D)(i) or (ii) of the Act (as in effect on April 1, 1997), or has been convicted of a crime described in section 101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii), or (L) of the Act (as in effect on April 1, 1997); (B) Is described in section 237(a)(2)(A)(iv) of the Act; or (C) Has escaped or attempted to escape from the lawful custody of a local, State, or Federal prison, agency, or officer within the United States. (ii) Notwithstanding paragraph (c)(5)(i) of this section, a permanent resident alien who has not, since the commencement of proceedings and within the 15 years prior thereto, been convicted of a crime, failed to comply with an order to surrender or a period of voluntary departure, or been subject to a bench warrant or similar legal process (unless quashed, withdrawn, or cancelled as improvidently issued), may be considered for release under paragraph (c)(3) of this section. (6) Unremovable aliens and certain long-term detainees. (ii) The district director may also, notwithstanding paragraph (c)(5) of this section, consider release from custody, upon such terms and conditions as the district director may prescribe, of any alien described in paragraph (c)(2)(ii) of this section who has been in the Service's custody for six months pursuant to a final order of deportation terminating the alien's status as a lawful permanent resident. (iii) The district director may release an alien from custody under this paragraph only in accordance with the standards set forth in paragraph (c)(3) of this section and any other applicable provisions of law. (iv) The district director's custody decision under this paragraph shall not be subject to redetermination by an immigration judge, but, in the case of a custody decision under paragraph (c)(6)(ii) of this section, may be appealed to the Board of Immigration Appeals pursuant to paragraph (d)(3)(iii) of this section. (7) Construction. (8) Any officer authorized to issue a warrant of arrest may, in the officer's discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding. Such an officer may also, in the exercise of discretion, release an alien in deportation proceedings pursuant to the authority in section 242 of the Act (as designated prior to April 1, 1997), except as otherwise provided by law. (9) When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled. (10) The provisions of § 103.6 of this chapter shall apply to any bonds authorized. Subject to the provisions of this section, the provisions of § 1003.19 of this chapter shall govern availability to the respondent of recourse to other administrative authority for release from custody. (11) An immigration judge may not exercise the authority provided in this section, and the review process described in paragraph (d) of this section shall not apply, with respect to any alien beyond the custody jurisdiction of the immigration judge as provided in § 1003.19(h) of this chapter. (d) Appeals from custody decisions Application to immigration judge. (2) Application to the district director. (3) Appeal to the Board of Immigration Appeals. (i) In accordance with § 1003.38 of this chapter, the alien or the Service may appeal the decision of an immigration judge pursuant to paragraph (d)(1) of this section. (ii) The alien, within 10 days, may appeal from the district director's decision under paragraph (d)(2)(i) of this section. (4) Effect of filing an appeal. (e) Privilege of communication. Algeria 1 1 Antigua and Barbuda Armenia Azerbaijan Bahamas, The Barbados Belarus Belize Brunei Bulgaria China (People's Republic of) 2 2 Costa Rica Cyprus Czech Republic Dominica Fiji Gambia, The Georgia Ghana Grenada Guyana Hong Kong 3 3 Hungary Jamaica Kazakhstan Kiribati Kuwait Kyrgyzstan Malaysia Malta Mauritius Moldova Mongolia Nigeria Philippines Poland 4 4 Romania Russian Federation St. Kitts and Nevis St. Lucia St. Vincent/Grenadines Seychelles Sierra Leone Singapore Slovak Republic Tajikistan Tanzania Tonga Trinidad and Tobago Tunisia Turkmenistan Tuvalu Ukraine United Kingdom 5 5 U.S.S.R. 6 6 Uzbekistan Zambia Zimbabwe (f) Notification to Executive Office for Immigration Review of change in custody status. (g) Notice of custody determination In general. (2) Cancellation. [62 FR 10360, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997, as amended at 63 FR 27449, May 19, 1998; 65 FR 80294, Dec. 21, 2000; 70 FR 67088, Nov. 4, 2005; 72 FR 1924, Jan. 17, 2007; 81 FR 62355, Sept. 9, 2016] § 236.2 Confined aliens, incompetents, and minors. (a) Service. (b) Service custody and cost of maintenance. [62 FR 10360, Mar. 6, 1997, as amended at 76 FR 53790, Aug. 29, 2011] § 236.3 Processing, detention, and release of alien minors. (a) Generally. (2) The provisions of this section apply to all minors in the legal custody of DHS, including minors who are subject to the mandatory detention provisions of the INA and applicable regulations, to the extent authorized by law. (b) Definitions. (1) Minor (i) Emancipated in an appropriate state judicial proceeding; or (ii) Incarcerated due to a conviction for a criminal offense in which he or she was tried as an adult. (2) Special needs minor (3) Unaccompanied alien child (4) Custody (5) Emergency (6) Escape-risk (i) The minor is currently subject to a final order of removal; (ii) The minor's immigration history includes: A prior breach of bond, a failure to appear before DHS or the immigration courts, evidence that the minor is indebted to organized smugglers for his transport, or a voluntary departure or previous removal from the United States pursuant to a final order of removal; or (iii) The minor has previously absconded or attempted to abscond from state or Federal custody. (7) Family unit (8) Family Residential Center (FRC) (9) Licensed facility (10) Influx (11) Non-secure facility (12) Office of Refugee Resettlement (ORR) (c) Age determination. (2) If a reasonable person would conclude that an individual is an adult, despite his or her claim to be under the age of 18, DHS may treat such person as an adult for all purposes, including confinement and release on bond, recognizance, or other conditions of release. In making this determination, an immigration officer may require such an individual to submit to a medical or dental examination conducted by a medical professional or other appropriate procedures to verify his or her age. (3) If an individual previously considered to have been an adult is subsequently determined to be under the age of 18, DHS will then treat such individual as a minor or UAC as prescribed by this section. (d) Determining whether an alien is a UAC Time of determination. (2) Aliens who are no longer UACs. (3) Age-out procedures. (e) Transfer of minors who are not UACs from one facility to another. (2) In the case of an emergency or influx, DHS will abide by written guidance detailing all reasonable efforts that it will take to transfer all minors who are not UACs as expeditiously as possible. (f) Transfer of UACs from DHS to HHS. (2) DHS will notify ORR within 48 hours upon the apprehension or discovery of a UAC or any claim or suspicion that an unaccompanied alien detained in DHS custody is under 18 years of age. (3) Unless exceptional circumstances are present, DHS will transfer custody of a UAC as soon as practicable after receiving notification of an ORR placement, but no later than 72 hours after determining that the minor is a UAC per paragraph (d) of this section. In the case of exceptional circumstances, DHS will abide by written guidance detailing the efforts that it will take to transfer all UACs as required by law. (4) The following relate to the conditions of transfer of UACs with unrelated detained adults: (i) UACs will not generally be transported with unrelated detained adults. A UAC will not be transported with an unrelated detained adult(s) unless the UAC is being transported from the place of apprehension to a DHS facility or if separate transportation is otherwise impractical or unavailable. (ii) When separate transportation is impractical or unavailable, necessary precautions will be taken to ensure the UAC's safety, security, and well-being. If a UAC is transported with any unrelated detained adult(s), DHS will separate the UAC from the unrelated adult(s) to the extent operationally feasible and take necessary precautions for protection of the UAC's safety, security, and well-being. (g) DHS procedures in the apprehension and processing of minors or UACs Processing Notice of rights and request for disposition. (ii) Notice of Right to Judicial Review. (iii) Current list of counsel. (2) DHS custodial care immediately following apprehension. (ii) Consistent with the statutory requirements, DHS will transfer UACs to HHS in accordance with the procedures described in paragraph (f) of this section. (h) Detention of family units. (i) Detention of minors who are not UACs in DHS custody. (1) A minor who is not a UAC referenced under this paragraph (i)(1) may be held in or transferred to a suitable state or county juvenile detention facility, or a secure DHS detention facility, or DHS contracted facility having separate accommodations for minors, whenever the Field Office Director and the ICE supervisory or management personnel have probable cause to believe that the minor: (i) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that fit within a pattern or practice of criminal activity; (ii) Has been charged with, is chargeable with, or has been convicted of a crime or crimes, or is the subject of delinquency proceedings, has been adjudicated delinquent, or is chargeable with a delinquent act or acts, that involve violence against a person or the use or carrying of a weapon; (iii) Has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself or others) while in Federal or state government custody or while in the presence of an immigration officer; (iv) Has engaged, while in the licensed facility, in conduct that has proven to be unacceptably disruptive of the normal functioning of the licensed facility in which the minor has been placed and transfer to another facility is necessary to ensure the welfare of the minor or others, as determined by the staff of the licensed facility; (v) Is determined to be an escape-risk pursuant to paragraph (b)(6) of this section; or (vi) Must be held in a secure facility for his or her own safety. (2) DHS will not place a minor who is not a UAC in a secure facility pursuant to paragraph (i)(1) if there are less restrictive alternatives that are available and appropriate in the circumstances, such as transfer to a facility which would provide intensive staff supervision and counseling services or another licensed facility. All determinations to place a minor in a secure facility will be reviewed and approved by the ICE Juvenile Coordinator referenced in paragraph (o) of this section. Secure facilities shall permit attorney-client visits in accordance with applicable facility rules and regulations. (3) Unless a secure facility is otherwise authorized pursuant to this section, ICE facilities used for the detention of minors who are not UACs shall be non-secure facilities. (4) Non-secure, licensed ICE facilities to which minors who are not UACs are transferred pursuant to the procedures in paragraph (e) of this section shall abide by applicable family residential standards established by ICE. At a minimum, such standards shall include provisions or arrangements for the following services for each minor who is not a UAC in its care: (i) Proper physical care and maintenance, including suitable living, accommodations, food and snacks, appropriate clothing, and personal grooming items; (ii) Appropriate routine medical, mental health and dental care, family planning services, and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the minor was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Centers for Disease Control and Prevention; administration of prescribed medication and special diets; appropriate mental health interventions when necessary; (iii) An individualized needs assessment which includes: (A) Various initial intake forms; (B) Essential data relating to the identification and history of the minor and family; (C) Identification of the minor's special needs including any specific problem(s) which appear to require immediate intervention; (D) An educational assessment and plan; (E) An assessment of family relationships and interaction with adults, peers and authority figures; (F) A statement of religious preference and practice; (G) An assessment of the minor's personal goals, strengths and weaknesses; and (H) Identifying information regarding immediate family members, other relatives, godparents, or friends who may be residing in the United States and may be able to assist in family reunification; (iv) Educational services appropriate to the minor's level of development and communication skills in a structured classroom setting, Monday through Friday, which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training (ELT). The educational program should include subjects similar to those found in U.S. programs and include science, social studies, math, reading, writing, and physical education. The program design should be appropriate for the minor's estimated length of stay and can include the necessary skills appropriate for transition into a U.S. school district. The program should also include acculturation and adaptation services which include information regarding the development of social and inter-personal skills that contribute to those abilities as age appropriate; (v) Appropriate reading materials in languages other than English for use during the minor's leisure time; (vi) Activities according to a recreation and leisure time plan which shall include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities (this should not include time spent watching television). Activities should be increased to a total of three hours on days when school is not in session; (vii) At least one individual counseling session or mental health wellness interaction (if the minor does not want to participate in a counseling session) per week conducted by trained social work staff with the specific objectives of reviewing the minor's progress, establishing new short-term objectives, and addressing both the developmental and crisis-related needs of each minor; (viii) Group counseling sessions at least twice a week. This is usually an informal process and takes place with all the minors present and can be held in conjunction with other structured activities. It is a time when new minors present in the facility are given the opportunity to get acquainted with the staff, other children, and the rules of the program. It is an open forum where everyone gets a chance to speak. Daily program management is discussed and decisions are made about recreational activities, etc. It is a time for staff and minors to discuss whatever is on their minds and to resolve problems; (ix) Upon admission, a comprehensive orientation regarding program intent, services, rules (written and verbal), expectations and the availability of legal assistance; (x) Whenever possible, access to religious services of the minor's choice; (xi) Visitation and contact with family members (regardless of their immigration status) which is structured to encourage such visitation. The staff shall respect the minor's privacy while reasonably preventing the unauthorized release of the minor and preventing the transfer of contraband; (xii) A reasonable right to privacy, which shall include the right to: (A) Wear his or her own clothes, when available; (B) Retain a private space in the residential facility for the storage of personal belongings; (C) Talk privately on the phone, as permitted by applicable facility rules and regulations; (D) Visit privately with guests, as permitted by applicable facility rules and regulations; and (E) Receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband; (xiii) When necessary, communication with adult relatives living in the United States and in foreign countries regarding legal issues related to the release and/or removal of the minor; (xiv) Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the Government, the right to apply for asylum or to request voluntary departure; (xv) Attorney-client visits in accordance with applicable facility rules and regulations; (xvi) Service delivery is to be accomplished in a manner which is sensitive to the age, culture, native language, and the complex needs of each minor; (xvii) Parents/legal guardians will be responsible for supervising their children and providing parental support in managing their children's behavior. Licensed facility rules and discipline standards shall be formulated with consideration for the range of ages and maturity in the program and shall be culturally sensitive to the needs of alien minors. DHS shall not subject minors to corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping. Any sanctions employed shall not adversely affect a minor's health, or physical or psychological well-being; or deny minors regular meals, sufficient sleep, exercise, medical care, correspondence privileges, or legal assistance; (xviii) Licensed facilities will maintain and safeguard individual case records. Agencies and organizations will maintain a system of accountability which preserves the confidentiality of client information and protects the records from unauthorized use or disclosure; (xix) Licensed facilities will maintain adequate records and make regular reports as required by DHS that permit DHS to monitor and enforce the regulations in this part and other requirements and standards as DHS may determine are in the best interests of the minors; and (xx) Licensed facilities will maintain a grievance and complaint filing process for aliens housed therein and post information about the process in a common area of the facility. Aliens will be required to follow the proscribed process for filing formal and informal grievances against facility staff that comports with the ICE Family Residential Standards Grievance Procedures. Complaints regarding conditions of detention shall be filed under the procedures required by the DHS Office of the Inspector General or the DHS Office of Civil Rights and Civil Liberties. Staff is prohibited from retaliating against anyone who files, or on whose behalf is filed, a grievance or complaint. In the event of an emergency, a licensed, non-secure facility described in this paragraph (i) may transfer temporary physical custody of a minor prior to securing permission from DHS, but shall notify DHS of the transfer as soon as is practicable thereafter, but in all cases within 8 hours. (j) Release of minors who are not UACs from DHS custody. (2) If a minor who is not a UAC is in expedited removal proceedings (including if he or she is awaiting a credible fear determination), or is subject to a final expedited removal order, custody is governed by § 235.3(b)(2)(iii) or (b)(4)(ii) of this chapter, as applicable. (3) If a minor who is not a UAC is subject to pending removal proceedings under section 240 of the Act, DHS will consider whether to release the minor pursuant to section 212(d)(5) or section 236(a), and the implementing regulations in 8 CFR 212.5 and § 235.3, as applicable. (4) The parole of minors who are not UACs who are detained pursuant to section 235(b)(1)(B)(ii) of the Act or § 235.3(c) of this chapter will generally serve an urgent humanitarian reason warranting release on parole if DHS determines that detention is not required to secure the minor's timely appearance before DHS or the immigration court, or to ensure the minor's safety and well-being or the safety of others. In making this determination, DHS may consider aggregate and historical data, officer experience, statistical information, or any other probative information. The determination whether to parole a minor who is not a UAC is in the unreviewable discretion of DHS. (5) If DHS determines to release a minor who is not a UAC during removal proceedings under section 240 of the Act, the following procedures shall apply: (i) If a parent or legal guardian is available to provide care and physical custody, DHS will make prompt and continuous efforts to release the minor to that parent or legal guardian. Nothing in this paragraph (j)(5)(i) precludes the release of a minor who is not a UAC to an adult relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and is available to provide care and physical custody. Release of a minor who is not a UAC to an adult relative other than a parent or legal guardian is within the unreviewable discretion of DHS. (ii) Prior to releasing a minor who is not a UAC to an adult relative pursuant to paragraph (j)(5)(i) of this section, DHS will use all available reliable evidence to determine whether the relationship is bona fide. If no reliable evidence is available that confirms the relationship, DHS may continue to keep the minor who is not a UAC in custody or treat the minor as a UAC and transfer the UAC to HHS custody, as outlined in paragraph (f) of this section. (iii) DHS shall assist without undue delay in making transportation arrangements to the DHS office nearest the location of the relative to whom a minor is to be released. DHS may, in its discretion, provide transportation to minors. (iv) Nothing herein shall require DHS to release a minor to any person or agency whom DHS has reason to believe may harm or neglect the minor or fail to present him or her before DHS or the immigration courts when requested to do so. (k) Procedures upon transfer Possessions. (2) Notice to counsel. (l) Notice to parent of refusal of release or application for relief. (i) A minor or UAC in DHS custody refuses to be released to his or her parent; or (ii) A minor or a UAC seeks release from DHS custody or seeks voluntary departure or a withdrawal of an application for admission, parole, or any form of relief from removal before DHS, and that the grant of such request or relief may effectively terminate some interest inherent in the parent-child relationship and/or the minor or UAC's rights and interests are adverse with those of the parent. (2) Upon notification, the parent will be afforded an opportunity to present his or her views and assert his or her interest to DHS before a determination is made as to the merits of the request for relief. (m) Bond hearings. (n) Retaking custody of a previously released minor. (2) DHS may take a minor back into custody if there is no longer a parent, legal guardian, or other adult relative (brother, sister, aunt, uncle, or grandparent) available to care for the minor. If the minor is a UAC, DHS will transfer custody to HHS as outlined in paragraph (e) of this section. (3) Minors who are not UACs and who are taken back into DHS custody may request a custody redetermination hearing in accordance with paragraph (m) of this section and to the extent permitted by 8 CFR 1003.19. (o) Monitoring. (2) In addition to the monitoring required by paragraph (o)(1) of this section, the Juvenile Coordinators shall collect and periodically examine relevant statistical information about UACs and minors who remain in CBP or ICE custody for longer than 72 hours. Such statistical information may include but not necessarily be limited to: (i) Biographical information; (ii) Dates of custody; and (iii) Placements, transfers, removals, or releases from custody, including the reasons for a particular placement. [84 FR 44525, Aug. 23, 2019] § 236.4 Removal of S-5, S-6, and S-7 nonimmigrants. (a) Condition of classification. (b) Determination of deportability. (2) A determination to remove such a deportable alien shall be based on one or more of the grounds of deportability listed in section 237 of the Act based on conduct committed after, or conduct or a condition not disclosed to the Service prior to, the alien's classification as an S nonimmigrant under section 101(a)(15)(S) of the Act, or for a violation of, or failure to adhere to, the particular terms and conditions of status in S nonimmigrant classification. (c) Removal procedures. (2) A district director who has provided notice as set forth in paragraph (c)(1) of this section and who has been advised by the Commissioner that the Assistant Attorney General, Criminal Division, has not objected shall issue a Warrant of Removal. The alien shall immediately be arrested and taken into custody by the district director initiating the removal. An alien classified under the provisions of section 101(a)(15)(S) of the Act who is determined, pursuant to a warrant issued by a district director, to be deportable from the United States shall be removed from the United States to his or her country of nationality or last residence. The agency that requested the alien's presence in the United States shall ensure departure from the United States and so inform the district director in whose jurisdiction the alien has last resided. The district director, if necessary, shall oversee the alien's departure from the United States and, in any event, shall notify the Commissioner of the alien's departure. (d) Withholding of removal. (e) Inadmissibility. § 236.5 Fingerprints and photographs. Every alien 14 years of age or older against whom proceedings based on deportability under section 237 of the Act are commenced under this part by service of a notice to appear shall be fingerprinted and photographed. Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies upon request to the district director or chief patrol agent having jurisdiction over the alien's record. Any such alien, regardless of his or her age, shall be photographed and/or fingerprinted if required by any immigration officer authorized to issue a notice to appear. Every alien 14 years of age or older who is found to be inadmissible to the United States and ordered removed by an immigration judge shall be fingerprinted, unless during the preceding year he or she has been fingerprinted at an American consular office. § 236.6 Information regarding detainees. No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or otherwise holds any detainee on behalf of the Service (whether by contract or otherwise), and no other person who by virtue of any official or contractual relationship with such person obtains information relating to any detainee, shall disclose or otherwise permit to be made public the name of, or other information relating to, such detainee. Such information shall be under the control of the Service and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations and executive orders. Insofar as any documents or other records contain such information, such documents shall not be public records. This section applies to all persons and information identified or described in it, regardless of when such persons obtained such information, and applies to all requests for public disclosure of such information, including requests that are the subject of proceedings pending as of April 17, 2002. [67 FR 19511, Apr. 22, 2002] §§ 236.7-236.9 [Reserved] Subpart B—Family Unity Program § 236.10 Description of program. The family unity program implements the provisions of section 301 of the Immigration Act of 1990, Public Law 101-649. This Act is referred to in this subpart as “IMMACT 90”. § 236.11 Definitions. In this subpart, the term: Eligible immigrant For purposes of §§ 236.10 to 236.18 only, Legalized alien (1) Is a temporary or permanent resident under section 210 or 245A of the Act; (2) Is a permanent resident under section 202 of the Immigration Reform and Control Act of 1986 (Cuban/Haitian Adjustment); or (3) Is a naturalized U.S. citizen who was a permanent resident under section 210 or 245A of the Act or section 202 of the Immigrant Reform and Control Act of 1986 (IRCA) (Cuban/Haitian Adjustment), and maintained such a status until his or her naturalization. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000] § 236.12 Eligibility. (a) General. (1) That he or she entered the United States before May 5, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been continuously residing in the United States since that date; and (2) That as of May 5, 1988, (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2) (C) of section 301 of IMMACT 90) or as of December 1, 1988, (in the case of a relationship to a legalized alien described in subsection (b)(2) (A) of section 301 of IMMACT 90), he or she was the spouse or unmarried child of a legalized alien, and that he or she has been eligible continuously since that time for family-sponsored immigrant status under section 203(a) (1), (2), or (3) or as an immediate relative under section 201 (b)(2) of the Act based on the same relationship. (b) Legalization application pending as of May 5, 1988 or December 1, 1988. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000] § 236.13 Ineligible aliens. The following categories of aliens are ineligible for benefits under the Family Unity Program: (a) An alien who is deportable under any paragraph in section 237(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A); provided that an alien who is deportable under section 237(a)(1)(A) of such Act is also ineligible for benefits under the Family Unity Program if deportability is based upon a ground of inadmissibility described in section 212(a)(2) or (3) of the Act; (b) An alien who has been convicted of a felony or three or more misdemeanors in the United States; (c) An alien described in section 241(b)(3)(B) of the Act; or (d) An alien who has committed an act of juvenile delinquency (as defined in 18 U.S.C. 5031) which if committed by an adult would be classified as: (1) A felony crime of violence that has an element the use or attempted use of physical force against another individual; or (2) A felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000] § 236.14 Filing. (a) General. (b) Decision. (c) Referral of denied cases for consideration of issuance of notice to appear. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 66 FR 29672, June 1, 2001; 74 FR 26939, June 5, 2009; 85 FR 46926, Aug. 3, 2020] § 236.15 Voluntary departure and eligibility for employment. (a) Authority. (b) Children of legalized aliens. (c) Duration of voluntary departure. (d) Employment authorization. (e) Extension of voluntary departure. (f) Supporting documentation for extension application. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 85 FR 46926, Aug. 3, 2020] § 236.16 Travel outside the United States. An alien granted Family Unity Program benefits who intends to travel outside the United States temporarily must apply for advance authorization in accordance with 8 CFR 223.2(a). The authority to grant an application for advance authorization for an alien granted Family Unity Program benefits rests solely with USCIS. An alien who is granted advance authorization and returns to the United States in accordance with such authorization, and who is found not to be inadmissible under section 212(a)(2) or (3) of the Act, shall be inspected and admitted in the same immigration status as the alien had at the time of departure, and shall be provided the remainder of the voluntary departure period previously granted under the Family Unity Program. [62 FR 10360, Mar. 6, 1997, as amended at 76 FR 53790, Aug. 29, 2011] § 236.17 Eligibility for Federal financial assistance programs. An alien granted Family Unity Program benefits based on a relationship to a legalized alien as defined in § 236.11 is ineligible for public welfare assistance in the same manner and for the same period as the legalized alien who is ineligible for such assistance under section 245A(h) or 210(f) of the Act, respectively. § 236.18 Termination of Family Unity Program benefits. (a) Grounds for termination. (1) A determination is made that Family Unity Program benefits were acquired as the result of fraud or willful misrepresentation of a material fact; (2) The beneficiary commits an act or acts which render him or her inadmissible as an immigrant ineligible for benefits under the Family Unity Program; (3) The legalized alien upon whose status benefits under the Family Unity Program were based loses his or her legalized status; (4) The beneficiary is the subject of a final order of exclusion, deportation, or removal issued subsequent to the grant of Family Unity benefits unless such final order is based on entry without inspection; violation of status; or failure to comply with section 265 of the Act; or inadmissibility at the time of entry other than inadmissibility pursuant to section 212(a)(2) or 212(a)(3) of the Act, regardless of whether the facts giving rise to such ground occurred before or after the benefits were granted; or (5) A qualifying relationship to a legalized alien no longer exists. (b) Notice procedure. (c) Effect of termination. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 76 FR 53791, Aug. 29, 2011] Subpart C—Deferred Action for Childhood Arrivals Source: 87 FR 53297, Aug. 30, 2022, unless otherwise noted. § 236.21 Applicability. (a) This subpart applies to requests for deferred action under the enforcement discretion policy set forth in this subpart, which will be described as Deferred Action for Childhood Arrivals (DACA). This subpart does not apply to or govern any other request for or grant of deferred action or any other DHS deferred action policy. (b) Except as specifically provided in this subpart, the provisions of 8 CFR part 103 do not apply to requests filed under this subpart. (c)(1) Deferred action is an exercise of the Secretary's broad authority to establish national immigration enforcement policies and priorities under 6 U.S.C. 202(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on higher priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time. (2) During this period of forbearance, on the basis of this subpart only, USCIS may grant employment authorization pursuant to 8 CFR 274a.13 and 274a.12(c)(33) to DACA recipients who have demonstrated an economic need. (3) During this period of forbearance, on the basis of this subpart only, a DACA recipient is considered “lawfully present” under the provisions of 8 CFR 1.3(a)(4)(vi). (4) During this period of forbearance, on the basis of this subpart only, a DACA recipient is not considered “unlawfully present” for the purpose of inadmissibility under section 212(a)(9) of the Act. (d) This subpart rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012. All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum. § 236.22 Discretionary determination. (a) Deferred Action for Childhood Arrivals; in general. (2) A pending request for deferred action under this section does not authorize or confer any interim immigration benefits such as employment authorization or advance parole. (3) Subject to paragraph (c) of this section, the requestor bears the burden of demonstrating by a preponderance of the evidence that he or she meets the threshold criteria described in paragraph (b) of this section. (b) Threshold criteria. (1) Came to the United States under the age of 16. (2) Continuous residence in the United States from June 15, 2007, to the time of filing of the request. (i) The absence was short and reasonably calculated to accomplish the purpose for the absence; (ii) The absence was not because of a post-June 15, 2007 order of exclusion, deportation, or removal; (iii) The absence was not because of a post-June 15, 2007 order of voluntary departure, or an administrative grant of voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and (iv) The purpose of the trip, and the requestor's actions while outside the United States, were not contrary to law. (3) Physical presence in the United States. (4) Lack of lawful immigration status. (5) Education or veteran status. (6) Criminal history, public safety, and national security. (i) Regardless of the sentence imposed, is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or (ii) If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody and, therefore, does not include a suspended sentence. (7) Age at time of request. (c) Final discretionary determination. § 236.23 Procedures for request, terminations, and restrictions on information use. (a) General. (2) All requests for Deferred Action for Childhood Arrivals, including any requests made by aliens in removal proceedings before EOIR, must be filed with USCIS. USCIS has exclusive jurisdiction to consider requests for Deferred Action for Childhood Arrivals. EOIR shall have no jurisdiction to consider requests for Deferred Action for Childhood Arrivals or to review USCIS approvals or denials of such requests. A voluntary departure order or a final order of exclusion, deportation, or removal is not a bar to requesting Deferred Action for Childhood Arrivals. An alien who is in removal proceedings may request Deferred Action for Childhood Arrivals regardless of whether those proceedings have been administratively closed. An alien who is in immigration detention may request Deferred Action for Childhood Arrivals but may not be approved for Deferred Action for Childhood Arrivals unless the alien is released from detention by ICE prior to USCIS' decision on the Deferred Action for Childhood Arrivals request. (3) USCIS may request additional evidence from the requestor, including, but not limited to, by notice, interview, or other appearance of the requestor. USCIS may deny a request for Deferred Action for Childhood Arrivals without prior issuance of a request for evidence or notice of intent to deny. (4) A grant of Deferred Action for Childhood Arrivals will be provided for an initial or renewal period of 2 years, subject to DHS's discretion. Related work authorization granted pursuant to 8 CFR 274a.12(c)(33), if approved in DHS's discretion, will be issued, subject to DHS's discretion, for the period of the associated grant of Deferred Action for Childhood Arrivals. (b) Consideration of a request for Deferred Action for Childhood Arrivals. (c) Notice of decision. (2) If USCIS denies a request for Deferred Action for Childhood Arrivals under this section, USCIS will not issue a Notice to Appear or refer a requestor's case to U.S. Immigration and Customs Enforcement for possible enforcement action based on such denial unless USCIS determines that the case involves denial for fraud, a threat to national security, or public safety concerns. (3) There is no administrative appeal from a denial of a request for Deferred Action for Childhood Arrivals. The alien may not file, pursuant to 8 CFR 103.5 or otherwise, a motion to reopen or reconsider a denial of a request for Deferred Action for Childhood Arrivals. (d) Termination Discretionary termination. (2) Departure without advance parole and reentry without inspection. (3) Automatic termination of employment authorization. (e) Restrictions on information use. (2) Information contained in a request for Deferred Action for Childhood Arrivals related to the requestor's family members or guardians will not be used for immigration enforcement purposes against such family members or guardians. § 236.24 Severability. (a) Any provision of this subpart held to be invalid or unenforceable as applied to any person or circumstance shall be construed so as to continue to give the maximum effect to the provision permitted by law, including as applied to persons not similarly situated or to dissimilar circumstances, unless such holding is that the provision of this subpart is invalid and unenforceable in all circumstances, in which event the provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof. (b) The provisions in § 236.21(c)(2) through (4) and § 274a.12(c)(14) and 274a.12(c)(33) are intended to be severable from one another, from this subpart and any grant of forbearance from removal resulting from this subpart, and from any provision referenced in those paragraphs, including such referenced provision's application to persons with deferred action generally. § 236.25 No private rights. This subpart is an exercise of the Secretary's enforcement discretion. This subpart— (a) Is not intended to and does not supplant or limit otherwise lawful activities of the Department or the Secretary; and (b) Is not intended to and does not create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.