PART 1241—APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED 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). Source: 62 FR 10378, Mar. 6, 1997, unless otherwise noted. Duplicated from part 241 at 68 FR 9840, Feb. 28, 2003. Editorial Note: Nomenclature changes to part 1241 appear at 68 FR 9846, Feb. 28, 2003, and 68 FR 10357, Mar. 5, 2003. Subpart A—Post-hearing Detention and Removal § 1241.1 Final order of removal. An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time; (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien's absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. If the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General. [62 FR 10378, Mar. 6, 1997, as amended at 73 FR 76938, Dec. 18, 2008] § 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. [70 FR 674, Jan. 5, 2005] §§ 1241.3-1241.5 [Reserved] § 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. (c) The Service shall take all reasonable steps to comply with a stay granted by an immigration judge or the Board. However, such a stay shall cease to have effect if granted (or communicated) after the alien has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed. [65 FR 80298, Dec. 21, 2000, as amended at 67 FR 39259, June 7, 2002; 70 FR 674, Jan. 5, 2005] § 1241.7 Self-removal. Any alien who has departed from the United States while an order of deportation or removal is outstanding shall be considered to have been deported, excluded and deported, or removed, except that an alien who departed before the expiration of the voluntary departure period granted in connection with an alternate order of deportation or removal shall not be considered to be so deported or removed. [67 FR 39260, June 7, 2002, as amended at 70 FR 674, Jan. 5, 2005] § 1241.8 Reinstatement of removal orders. (a) Applicability. (1) Whether the alien has been subject to a prior order of removal. The immigration officer must obtain the prior order of exclusion, deportation, or removal relating to the alien. (2) The identity of the alien, i.e. (3) Whether the alien unlawfully reentered the United States. In making this determination, the officer shall consider all relevant evidence, including statements made by the alien and any evidence in the alien's possession. The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted, which shall include a check of Service data systems available to the officer. (b) Notice. (c) Order. (d) Exception for applicants for benefits under section 902 of HRIFA or sections 202 or 203 of NACARA. (e) Exception for withholding of removal. (f) Execution of reinstated order. [62 FR 10378, Mar. 6, 1997, as amended at 64 FR 8495, Feb. 19, 1999; 66 FR 29451, May 31, 2001] §§ 1241.9-1241.13 [Reserved] § 1241.14 Continued detention of removable aliens on account of special circumstances. (a) Scope. (1) Applicability. (2) Jurisdiction. (b)-(e) [Reserved] (f) Detention of aliens determined to be specially dangerous Standard for continued detention. (i) The alien has previously committed one or more crimes of violence as defined in 18 U.S.C. 16; (ii) Due to a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; and (iii) No conditions of release can reasonably be expected to ensure the safety of the public. (2) Determination by the Commissioner. (3) Medical or mental health examination. (4) Detention pending review. (g) Referral to Immigration Judge. (1) Factual basis. (2) Notice of reasonable cause hearing. (3) Notice of alien's rights. (i) The alien shall be provided with the List of Pro Bono Legal Service Providers for the immigration court at which the hearing is being held, and may be represented by an attorney or other representative of his or her choice in accordance with 8 CFR part 1292, at no expense to the Government; (ii) The Immigration Court shall provide an interpreter for the alien, if necessary, for the reasonable cause hearing and the merits hearing. (iii) The alien shall have a reasonable opportunity to examine evidence against the alien, to present evidence in the alien's own behalf, and to cross-examine witnesses presented by the Service; and (iv) The alien shall have the right, at the merits hearing, to cross-examine the author of any medical or mental health reports used as a basis for the determination under paragraph (f) of this section that the alien is specially dangerous. (4) Record. (h) Reasonable cause hearing. (1) Scheduling of hearing. (2) Evidence. (3) Decision. (4) Appeal. (i) If the Service reserves appeal of a dismissal of the reasonable cause hearing, the immigration judge's order shall be stayed until the expiration of the time to appeal. Upon the Service's filing of a timely Notice of Appeal, the immigration judge's order shall remain in abeyance pending a final decision of the appeal. The stay shall expire if the Service fails to file a timely Notice of Appeal. (ii) The Board will decide the Service's appeal, by single Board Member review, based on the record of proceedings before the immigration judge. The Board shall expedite its review as far as practicable, as the highest priority among the appeals filed by detained aliens, and shall determine the issue within 20 business days of the filing of the notice of appeal, unless that time is extended by agreement of both parties, by a determination from the Chairman of the Board that exceptional circumstances make it impractical to render the decision on a highly expedited basis, or because of delay caused by the alien. (iii) If the Board determines that the Service has met its burden of showing reasonable cause under this paragraph (h), the Board shall remand the case to the immigration judge for the scheduling of a merits hearing under paragraph (i) of this section. If the Board determines that the Service has not met its burden, the Board shall dismiss the review proceedings under this section. (i) Merits hearing. (1) Evidence. (2) Factors for consideration. (i) The alien's prior criminal history, particularly the nature and seriousness of any prior crimes involving violence or threats of violence; (ii) The alien's previous history of recidivism, if any, upon release from either Service or criminal custody; (iii) The substantiality of the Service's evidence regarding the alien's current mental condition or personality disorder; (iv) The likelihood that the alien will engage in acts of violence in the future; and (v) The nature and seriousness of the danger to the public posed by the alien's release. (3) Decision. (i) If the immigration judge determines that the Service has met its burden, the immigration judge shall enter an order providing for the continued detention of the alien. (ii) If the immigration judge determines that the Service has failed to meet its burden, the immigration judge shall order that the review proceedings under this section be dismissed. (4) Appeal. (i) If the Service reserves appeal of a dismissal, the immigration judge's order shall be stayed until the expiration of the time to appeal. Upon the Service's filing of a timely Notice of Appeal, the immigration judge's order shall remain in abeyance pending a final decision of the appeal. The stay shall expire if the Service fails to file a timely Notice of Appeal. (ii) The Board shall conduct its review of the appeal as provided in 8 CFR part 3, but shall expedite its review as far as practicable, as the highest priority among the appeals filed by detained aliens. The decision of the Board shall be final as provided in § 1003.1(d)(3) of this chapter. (j) Release of alien upon dismissal of proceedings. (k) Subsequent review for aliens whose release would pose a special danger to the public Periodic review. (2) Alien's request for review. (3) Time for review. (4) Showing of changed circumstances. (5) Review by the Service. (6) Motion to set aside determination in prior review proceedings. (i) If the immigration judge determines that the alien has provided good reason to believe that, because of a material change in circumstances, releasing the alien would no longer pose a special danger to the public under the standards of paragraph (f)(1) of this section, the immigration judge shall set aside the determination in the prior review proceedings under this section and schedule a new merits hearing as provided in paragraph (i) of this section. (ii) Unless the immigration judge determines that the alien has satisfied the requirements under paragraph (k)(6)(i) of this section, the immigration judge shall deny the motion. Neither the immigration judge nor the Board may sua sponte (iii) The alien may appeal an adverse decision to the Board in accordance with § 1003.38 of this chapter. The Notice of Appeal should state clearly and conspicuously that this is an appeal of a denial of a motion to set aside a prior determination in review proceedings under this section. [66 FR 56979, Nov. 14, 2001, as amended at 70 FR 674, Jan. 5, 2005; 80 FR 59513, Oct. 1, 2015] § 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. [70 FR 675, Jan. 5, 2005] §§ 1241.16-1241.19 [Reserved] Subpart B—Deportation of Excluded Aliens (for Hearings Commenced Prior to April 1, 1997) § 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. [70 FR 675, Jan. 5, 2005] §§ 1241.21-1241.29 [Reserved] Subpart C—Deportation of Aliens in the United States (for Hearings Commenced Prior to April 1, 1997) § 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. [70 FR 675, Jan. 5, 2005] § 1241.31 Final order of deportation. Except as otherwise required by section 242(c) of the Act for the specific purposes of that section, an order of deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the immigration judge in proceedings under 8 CFR part 1240 shall become final upon dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision. § 1241.32 Warrant of deportation. A Form I-205, Warrant of Deportation, based upon the final administrative order of deportation in the alien's case shall be issued by a district director. The district director shall exercise the authority contained in section 243 of the Act to determine at whose expense the alien shall be deported and whether his or her mental or physical condition requires personal care and attention en route to his or her destination. § 1241.33 Expulsion. (a) Execution of order. (1) A grant of voluntary departure expires; (2) An immigration judge enters an order of deportation without granting voluntary departure or other relief, and the alien respondent waives his or her right to appeal; (3) The Board of Immigration Appeals enters an order of deportation on appeal, without granting voluntary departure or other relief; or (4) A Federal district or appellate court affirms an administrative order of deportation in a petition for review or habeas corpus action. (b) Service of decision. [62 FR 10378, Mar. 6, 1997, as amended at 65 FR 82256, Dec. 28, 2000]