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ALIENS WITH DEPORTATION/REMOVAL ORDERS WILL BE REQUIRED TO
"SURRENDER" TO INS
by Michael J. Gurfinkel, Esq.
In yet another aftermath of the September 11, 2001
terrorist attacks, the Immigration and Naturalization Service
recently published proposed regulations requiring aliens with
final removal/deportation orders to surrender to the INS within
30 days of notice, or lose entitlement to many forms of immigration
relief and benefits.
The INS has determined that 89 percent of aliens
who received final deportation orders, but who are not under detention
(in custody), fail to leave the U.S. and/or surrender for deportation
when ordered to do so. (Immigration laws generally require the
detention and removal of aliens subject to a final order of removal
within 90 days of receipt of notice.)
As soon as this proposed rule becomes final, the
INS says it will start issuing notices to aliens with final deportation
orders, informing them of their duty to surrender to INS, following
any final order of expulsion, deportation, or removal, and of
the consequences of failing to surrender.
Aliens who were served such "surrender"
notices, if they are not yet in custody of the INS, must surrender
to the INS within 30 days of the issuance of the notice. The rule
applies not only to aliens who are served with Notices to Appear
(NTA), but also to aliens who are currently in proceedings, as
long as they receive the requisite notice. Here are some questions
and answers regarding the new rule:
- What is the purpose of the proposed
rule?
The purpose of this proposed rule is to establish
procedures requiring aliens who have received final orders of
removal to surrender to the INS for removal from the United
States. The rule establishes procedures for surrender and provides
that persons violating those procedures will be denied certain
discretionary immigration benefits.
- Who will be affected by this rule?
This rule will apply to those aliens who received
notice at any point in immigration proceedings of their duty
to surrender following any final order of expulsion, deportation,
or removal, and of the consequences of failing to surrender.
Aliens presently in proceedings will be receiving notice of
their duty to surrender once there is a final order of removal.
However, the rule may not have retroactive effect on people
with old deportation/removal orders, where they have not yet
received notice or warnings of the duty to surrender. However,
if you have an old deportation order (i.e. an asylum in absentia
order), the INS could now send the notice to surrender out to
your last address, thereby triggering your obligation to surrender.
- How would the rules affect aliens with
final removal (deportation) orders?
Aliens who receive the surrender notice, if they
are not in the custody of the INS, must surrender within 30
days of the issuance of an administrative order of removal by
either an immigration judge or the Board of Immigration Appeals.
An alien who has been granted voluntary departure is given an
order of removal that automatically becomes administratively
final if the alien does not depart under the grant of voluntary
departure. If an alien does not voluntarily depart, he or she
is also required to surrender to the service.
- What are the consequences for an alien
who fails to surrender as required?
Those aliens who fail to surrender will be denied
discretionary relief from removal, such as asylum, waiver of
inadmissibility for criminal convictions, waiver of inadmissibility
for fraud, cancellation of removal (suspension of deportation),
voluntary departure, adjustment of status, change of status,
and registry (or amnesty), at any time while the alien is in
the US, and for a period of 10 years after the alien's departure
from the US. The alien may also be subject to criminal prosecution.
- What effect would an alien's failure to
surrender have on motions to reopen or reconsider removal proceedings?
Removal proceedings would not be reopened in the
case of an alien who failed to surrender for removal, unless the
alien can demonstrate, by clear and convincing evidence, both
that the failure to surrender was due to exceptional circumstances,
and that he or she actually surrendered for removal as soon as
possible after the circumstances that prevented timely surrender
had passed.
It is obvious that the INS really means business,
and that it intends to go after aliens who are already subject
to removal, but who had remained illegally in the country. I would
recommend that people who already have received a final order
of removal (or deportation), and even those who are currently
facing deportation proceedings, to consult with a reputable attorney,
who can advise them of their options, or help them obtain legal
relief if still possible and available.
It is best to act now, before you receive a "surrender
notice" and/or find yourself being awakened in the middle
of the night (or early morning) by INS officers out to enforce
these removal orders.
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