[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR236.4]

[Page 431-432]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
PART 236_APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; 
REMOVAL OF ALIENS ORDERED REMOVED--Table of Contents
 
         Subpart A_Detention of Aliens Prior to Order of Removal
 
Sec.  236.4  Removal of S-5, S-6, and S-7 nonimmigrants.

    (a) Condition of classification. As a condition of classification 
and continued stay in classification pursuant to section 101(a)(15)(S) 
of the Act, nonimmigrants in S classification must have executed Form I-
854, Part B, Inter-agency Alien Witness and Informant Record, certifying 
that they have knowingly waived their right to a removal hearing and 
right to contest, other than on the basis of an application for 
withholding of deportation or removal, any removal action, including 
detention pending deportation or removal, instituted before lawful 
permanent resident status is obtained.
    (b) Determination of deportability. (1) A determination to remove a 
deportable alien classified pursuant to section 101(a)(15)(S) of the Act 
shall be made by the district director having jurisdiction over the 
place where the alien is located.
    (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. (1) A district director who determines to 
remove an alien witness or informant in S nonimmigrant classification 
shall notify the Commissioner, the Assistant Attorney General, Criminal 
Division, and the relevant law enforcement agency in writing to that 
effect. The Assistant Attorney General, Criminal Division, shall concur 
in or object to that decision. Unless the Assistant Attorney General, 
Criminal Division, objects within 7 days, he or she shall be deemed to 
have concurred in the decision. In the event of an objection by the 
Assistant Attorney General, Criminal Division, the matter will be 
expeditiously referred to the Deputy Attorney General for a final 
resolution. In no circumstances shall the alien or the relevant law 
enforcement agency have a right of appeal from any decision to remove.
    (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. An alien classified pursuant to section 
101(a)(15)(S) of the Act who applies for withholding of removal shall 
have 10 days from the date the Warrant of Removal is served upon the 
alien to file an application for such relief with the district director 
initiating the removal order. The procedures contained in Sec. Sec.  
208.2 and 208.16 of this chapter shall apply to such an alien who 
applies for withholding of removal.
    (e) Inadmissibility. An alien who applies for admission under the 
provisions of section 101(a)(15)(S) of the Act who is determined by an 
immigration officer not to be eligible for admission under that section 
or to be inadmissible to the United States under one or more of the 
grounds of inadmissibility listed in section 212 of the Act and which 
have not been previously waived by the Commissioner will be taken into 
custody. The district director having jurisdiction over the port-of-
entry shall follow the notification procedures

[[Page 432]]

specified in paragraph (c)(1) of this section. A district director who 
has provided such notice and who has been advised by the Commissioner 
that the Assistant Attorney General, Criminal Division, has not objected 
shall remove the alien without further hearing. An alien may not contest 
such removal, other than by applying for withholding of removal.