[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR236.4]



[Page 433-434]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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



[[Page 434]]



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 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.