PART 1238—EXPEDITED REMOVAL OF AGGRAVATED FELONS Authority: 8 U.S.C. 1228; 8 CFR part 2. § 1238.1 Proceedings under section 238(b) of the Act. (a) Definitions. Deciding Service officer Issuing Service officer (b) Preliminary consideration and Notice of Intent to Issue a Final Administrative Deportation Order; commencement of proceedings Basis of Service charge. (i) Is an alien; (ii) Has not been lawfully admitted for permanent residence, or has conditional permanent resident status under section 216 of the Act; (iii) Has been convicted (as defined in section 101(a)(48) of the Act and as demonstrated by any of the documents or records listed in § 1003.41 of this chapter) of an aggravated felony and such conviction has become final; and (iv) Is deportable under section 237(a)(2)(A)(iii) of the Act, including an alien who has neither been admitted nor paroled, but who is conclusively presumed deportable under section 237(a)(2)(A)(iii) by operation of section 238(c) of the Act (“Presumption of Deportability”). (2) Notice. (ii) The Notice of Intent also shall advise the alien that he or she may designate in writing, within the rebuttal period, the country to which he or she chooses to be deported in accordance with section 241 of the Act, in the event that a Final Administrative Removal Order is issued, and that the Service will honor such designation only to the extent permitted under the terms, limitations, and conditions of section 241 of the Act. (iii) The Service must determine that the person served with the Notice of Intent is the person named on the notice. (iv) The Service shall provide the alien with a list of available free legal services programs qualified under 8 CFR part 1003 and organizations recognized pursuant to 8 CFR part 1292, located within the district or sector where the Notice of Intent is issued. (v) The Service must either provide the alien with a written translation of the Notice of Intent or explain the contents of the Notice of Intent to the alien in the alien's native language or in a language that the alien understands. (c) Alien's response Time for response. (2) Nature of rebuttal or request to review evidence. (ii) If an alien's written response requests the opportunity to review the Government's evidence, the Service shall serve the alien with a copy of the evidence in the record of proceeding upon which the Service is relying to support the charge. The alien may, within 10 calendar days following service of the Government's evidence (13 calendar days if service is by mail), furnish a final response in accordance with paragraph (c)(1) of this section. If the alien's final response is a rebuttal of the allegations, such a final response should be accompanied by affidavit(s), documentary information, or other specific evidence supporting the challenge. (d) Determination by deciding Service officer No response submitted or concession of deportability. (2) Response submitted Insufficient rebuttal; no genuine issue of material fact. (ii) Additional evidence required. (B) If the deciding Service officer considers additional evidence from a source other than the alien, that evidence shall be made a part of the record of proceeding, and shall be provided to the alien. If the alien elects to submit a response to such additional evidence, such response must be filed with the Service within 10 calendar days of service of the additional evidence (or 13 calendar days if service is by mail). If the deciding Service officer finds, after considering all additional evidence, that deportability is established by clear, convincing, and unequivocal evidence in the record of proceeding, the deciding Service officer shall issue and cause to be served upon the alien a Final Administrative Removal Order that states the reasons for the decision of deportability. (iii) Conversion to proceedings under section 240 of the Act. (3) Termination of proceedings by deciding Service officer. (e) Proceedings commenced under section 240 of the Act. (f) Executing final removal order of deciding Service officer Time of execution. (2) Country to which alien is to be removed. (3) Withholding of removal. (g) Arrest and detention. (h) Record of proceeding. [62 FR 10365, Mar. 6, 1997, as amended at 64 FR 8494, Feb. 19, 1999; 67 FR 39258, June 7, 2002. Duplicated from § 238.1 at 68 FR 9838, Feb. 28, 2003, as amended at 68 FR 10355, Mar. 3, 2003]