Execution of Removal Orders; Countries to Which Aliens May Be Removed, 661-675 [05-125]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Department of Justice
• Immigration and Customs Enforcement Bureau

[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Rules and Regulations]
[Pages 661-675]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-125]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 241

[ICE No. 2317-04]
RIN 1653-AA41

DEPARTMENT OF JUSTICE

8 CFR Parts 1240 and 1241

[EOIR No. 146F; AG Order No. 2746-2004]
RIN 1125-AA50


Execution of Removal Orders; Countries to Which Aliens May Be 
Removed

AGENCY: United States Immigration and Customs Enforcement, Department 
of Homeland Security; Executive Office for Immigration Review, 
Department of Justice.

ACTION: Final rules.

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SUMMARY: The Secretary of Homeland Security and the Attorney General 
publish these final rules to amend their respective agencies' 
regulations pertaining to removal of aliens.
    With the Department of Homeland Security final rule, the Secretary 
of Homeland Security adopts as final, without substantial change, the 
proposed regulations published at 69 FR 42910 (July 19, 2004). The 
Department of Homeland Security amends its

[[Page 662]]

regulations to clarify that acceptance by a country is not required 
under specific provisions of section 241(b) of the Immigration and 
Nationality Act in order to remove an alien to that country, and that a 
``country'' for the purpose of removal is not premised on the existence 
or functionality of a government in that country. This rule further 
clarifies the countries to which an alien may be removed and the 
situations in which the Secretary of Homeland Security will remove an 
alien to an alternative or additional country. Additionally, this rule 
provides technical changes as a result of amendments to the Immigration 
and Nationality Act by the Homeland Security Act of 2002.
    With the Department of Justice final rule, the Attorney General 
adopts as final, without substantial change, the proposed regulations 
at 69 FR 42911 (July 19, 2004). The Department of Justice clarifies the 
procedure for an alien to designate the country to which he or she 
would prefer to be removed, provides that the immigration judge shall 
inform any alien making such a designation that he or she may be 
removed to another country under section 241(b) of the Immigration and 
Nationality Act in the discretion of the Secretary of Homeland Security 
in effecting the foreign policy of the United States, and clarifies the 
effect of an identification of a country for removal in an immigration 
judge's order of removal from the United States. This rule clarifies 
that acceptance by a country is not a factor to be considered by the 
immigration judge in identifying a country or countries of removal in 
the administrative order of removal. The Department of Justice also 
makes technical changes to eliminate unnecessary provisions and update 
references to reflect the enactment of the Homeland Security Act of 
2002.

DATES: These final rules are effective February 4, 2005.

FOR FURTHER INFORMATION CONTACT: If you have questions regarding the 
Department of Homeland Security's final rule, call: Mark Lenox, U.S. 
Immigration and Customs Enforcement, Department of Homeland Security, 
801 I Street, NW., Suite 800, Washington, DC 20536, telephone (202) 
616-9166 (not a toll-free call).
    If you have questions regarding the Department of Justice's final 
rule, call: Mary Beth Keller, General Counsel, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, 
Virginia 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

A. The Purpose of the Final Rules
B. Discussion of Comments
    1. Promulgation of the Rules
    2. Definition of the Term ``Country''
    3. Acceptance under Section 241(b)(2) of the Act, 8 U.S.C. 
1231(b)(2)
    4. Acceptance, Judicial Precedent, and Ratification by Congress
    5. Lack of Acceptance Requirement and Effect on Other Provisions 
of the Act
    6. Office of Legal Counsel Opinion
    7. Agency Operating Instructions
    8. Removal of Aliens to Countries without Functioning 
Governments
    9. Foreign Policy Considerations
    10. Identifying Country of Removal at Removal Hearing for 
Protection Requests
    11. Modification of Certain Regulations
    12. Miscellaneous Comments
C. Joint and Independent Notice of Rulemaking

Department of Homeland Security

PART 241--Apprehension and Detention of Aliens Ordered Removed.

Department of Justice

PART 1240--Proceedings to Determine Removability of Aliens in the 
United States.

PART 1241--Apprehension and Detention of Aliens Ordered Removed.

    On July 19, 2004, the Department of Homeland Security (DHS) and the 
Department of Justice (Justice) jointly published proposed rules with 
request for comments entitled ``Execution of Removal Orders; Countries 
to Which Aliens May Be Removed'' (69 FR 42901). In response to the 
proposed rulemaking, DHS received a total of 18 separate timely 
submissions and Justice received a total of 23 separate timely 
submissions. The commenters included various nongovernmental 
organizations (NGOs), private attorneys, and other interested 
individuals. Many of the submissions were duplicates sent to both DHS 
and Justice that either used or otherwise substantially adopted one set 
of comments submitted collectively by a group of NGOs. The majority of 
these comments did not differentiate between the authority of DHS or 
Justice. Accordingly, to the extent that these rules address two 
independent sources of authority in this area, the comments are 
addressed by the appropriate agency with authority over the area raised 
by the commenter. Additionally, because many of the comments submitted 
to both DHS and Justice are similar and endorse the submissions of 
other commenters, the Secretary and the Attorney General address the 
responses by topic rather than by referencing each specific commenter 
and comment.
    DHS and Justice hereby incorporate the Supplementary Information 
contained in the Notice of Proposed Rulemaking, 69 FR 42901, 42902-09, 
and reiterate that the Secretary and the Attorney General have 
undertaken to publish these changes in their respective regulations in 
a single document as a convenience to the public. The Secretary and the 
Attorney General are each acting independently and within their 
respective statutory delegations of authority in separately amending 
the rules of their respective Departments as set forth in these final 
rules. The rules of DHS and Justice will continue to separately 
implement the provisions of the Immigration and Nationality Act (Act) 
within their respective jurisdictions.

A. The Purpose of the Final Rule

    Section 241(b)(1) and (2) of the Act, 8 U.S.C. 1231(b)(1) and (2), 
provides the process for determining the countries to which an alien 
\1\ may be removed after a hearing before an immigration judge, the 
issuance of a final order finding that the alien is removable from the 
United States and not eligible for relief from removal, and disposition 
of any administrative and judicial appeals.
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    \1\ The rules and this SUPPLEMENTARY INFORMATION use two 
distinct terms: the term ``alien'' is broader than the term 
``respondent,'' which includes aliens only while they are in removal 
proceedings. Accordingly, the Department of Homeland Security rule 
uses the term ``alien,'' the Department of Justice rule uses the 
term ``respondent,'' and the SUPPLEMENTARY INFORMATION uses the term 
that is applicable in the specific context. The Act generally uses 
the term ``alien'' and is not as discrete as the regulations.
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    Section 241(b)(1) of the Act, 8 U.S.C. 1231(b)(1), relates to 
arriving aliens \1\ whom DHS has placed in removal proceedings, a 
relatively small category because most arriving aliens are subject to 
expedited removal under section 235 of the Act, 8 U.S.C. 1225. It 
should be noted that the authority to initiate expedited removal 
proceedings in certain circumstances has recently been expanded. See 
Notice Designating Aliens for Expedited Removal, 69 FR 48877 (August 
11, 2004) (authorizing expedited removal proceedings for aliens present 
in the United States without having been admitted or paroled, who are 
encountered within 100 miles of the border, and who cannot establish 
that they have been physically present in the United States 
continuously for the preceding fourteen days); Notice Designating 
Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of 
the Immigration and Nationality Act, 67 FR 68924 (November 13, 2002) 
(authorizing expedited removal proceedings for certain aliens who 
arrive in the United States by sea, who are not admitted or paroled, 
and who have not been continuously

[[Page 663]]

physically present in the United States for the preceding two years). 
Section 241(b)(1) of the Act provides a two-step process to determine 
the country of removal for an arriving alien: (1) The country from 
which the alien boarded a conveyance to the United States; or (2) an 
alternative country, such as the country of citizenship or birth.
    Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), applies in the 
far more common circumstance of the removal of other (i.e., non-
arriving) aliens. Section 241(b)(2) of the Act provides a three-step 
process to determine the country of removal for these aliens: (1) The 
country designated by the alien; (2) an alternative country of which 
the alien is a subject, national, or citizen, with certain conditions; 
and (3) an additional country, such as the country from which the alien 
boarded a conveyance to the United States or the country of the alien's 
residence or birth.
    Sections 241(b)(1) and (2) of the Act use the terms ``country'' and 
``accept'' without any statutory definition. Some subparagraphs within 
section 241(b)(2) of the Act state that the alien is to be removed to a 
``country'' that will ``accept'' the alien, while other provisions do 
not state that a ``country'' must ``accept'' the alien. The United 
States courts of appeals have differed on the meaning and effect of 
these terms. Compare Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. 
granted, 124 S.Ct. 1407 (2004) (No. 03-674), with Ali v. Ashcroft, 346 
F.3d 873 (9th Cir. 2003), petition for reh'g pending (No. 03-35096, 9th 
Cir.). These rules implement the provisions of the Act and amend the 
regulations of DHS and Justice in response to this intercircuit 
conflict.

B. Discussion of Comments

    The following paragraphs will address each substantive issue raised 
in comments received by DHS and Justice. This discussion will not 
describe in detail the provisions outlined in the rules, but rather 
will address only those provisions relevant to the comments. Commenters 
frequently addressed identical issues in their comments, and these 
issues have been consolidated for the response. This discussion has 
been organized into sections based upon the themes of comments for the 
convenience of the reader.

1. Promulgation of the Rules

    Many commenters questioned the authority of the Secretary and the 
Attorney General to promulgate these final rules. Commenters questioned 
whether the rules had separation of power implications and whether the 
rules were ultra vires in light of the litigation pending around the 
country regarding the interpretation of section 241 of the Act, 8 
U.S.C. 1231, and the language of the statute. Compare Jama, 329 F.3d 
630 (8th Cir. 2003), with Ali, 346 F.3d 873 (9th Cir. 2003). In these 
comments, the commenters invoke the oft-quoted statement of Marbury v. 
Madison, 1 Cranch (5 U.S.) 137 (1803), that it is ``emphatically the 
province and duty of the judicial department to say what the law is.''
    These comments fail to appreciate the nature of rulemaking within 
the structure of the federal law. Accordingly, the Attorney General and 
the Secretary must reiterate basic principles of separation of powers 
and administrative law that govern rulemakings. The three Branches of 
government operate within defined spheres, but those spheres sometimes 
overlap. Congress enacts statutes, and delegates to the Executive 
Branch the authority to make rules that interpret and fill in the 
administrative details of those statutes. The interpretation of the 
statutes in these rules are given due deference by the courts when 
cases present questions of statutory interpretation. INS v. Aguirre-
Aguirre, 526 U.S. 415, 423-25 (1999); Chevron U.S.A. Inc. v. Natural 
Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1983). The invocation of 
the judicial power, however, does not stay the processes of government; 
Congress may amend the statute at any time. Similarly, the Executive 
Branch may amend the regulations under the statute at any time. Not 
infrequently, these amendments result in different disposition of the 
cases pending before the courts. See, e.g., Bell v. Wolfish, 441 U.S. 
520, 549-52 (1979) (amendment of Bureau of Prisons regulations while 
constitutional challenge to prior regulations pending in Supreme 
Court); see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 
(1996) (amendment to the regulations interpreting ``interest'' as used 
in the National Bank Act while issue of what constituted interest was 
in litigation); cf. Sanks v. Georgia, 401 U.S. 144 (1971) (amendment to 
state statute while constitutional challenge to prior statute pending 
in Supreme Court). In fact, in Smiley, the Court specifically stated: 
``That it was litigation that disclosed the need for the regulation is 
irrelevant.'' Smiley, 517 U.S. at 741. As these and a number of other 
cases make clear, exercise of authority granted to make rules pending 
litigation is both an acceptable and a long-standing practice.
    The commenters suggest that the Executive's amendment is an 
interference with the authority of the courts. However, as the District 
of Columbia Circuit has pointed out,

intent is irrelevant: no authority supports the proposition that a 
rule is arbitrary and capricious merely because it abrogates a 
circuit court decision. Quite to the contrary, ``regulations 
promulgated to clarify disputed interpretations of a regulation are 
to be encouraged. Tidying-up a conflict in the circuits with a 
clarifying regulation permits a nationally uniform rule without the 
need for the Supreme Court to essay the meaning of every debatable 
regulation.'' Pope v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993) 
(citation and internal quotation marks omitted).

National Mining Association v. Department of Labor, 292 F.3d 849 (D.C. 
Cir. 2002). With this in mind, the Attorney General and the Secretary 
of Homeland Security have undertaken to resolve the conflict through 
regulation.
    Additionally, as noted in the proposed rules, the statute does not 
define the terms ``country'' and ``acceptance.'' Given the exclusive 
province of the Executive in that vast external realm of determining 
when a ``country'' has ``accepted'' its proffer of an alien, the 
Attorney General and the Secretary, as the respective delegates of the 
President, are providing the interpretation that conforms with the 
foreign policy of the United States. These regulations are, thus, 
wholly within their authority to promulgate.
    One commenter stated that it ``makes little sense for the 
government to expend significant staff time and expense to promulgate 
regulations that could need retraction or extensive overhauling in a 
matter of months, depending upon the Supreme Court's determination.'' 
The Secretary and the Attorney General appreciate the commenters' 
suggestion but have determined that promulgation of these rules is 
necessary at this time.
    Accordingly, the Secretary and the Attorney General promulgate the 
regulations as proposed, with minor changes as noted below.

2. Definition of the Term ``Country''

    Some commenters questioned the interpretation of the Secretary and 
the Attorney General of section 241(b) of the Act, 8 U.S.C. 1231(b), 
and articulated their position that the term ``country'' as used in 
that section is premised on the existence or functionality of a 
government in that country based on ``longstanding judicial 
interpretations.'' In support of their argument, the commenters rely on 
three cases that are far from dispositive of the issue. Further, the 
difference in terminology used within section 241(b)(2) of the Act and 
Supreme Court precedent support

[[Page 664]]

the interpretation of the Secretary and Attorney General.
    First, the commenters cite three cases in support of their 
contention that ``longstanding judicial interpretations'' of 
``country'' require the existence or functionality of a government. In 
all three cases cited by the commenters, the courts found that the 
United States could deport the aliens to the proposed country of 
removal, but whether ``country'' requires the existence or 
functionality of a government was not specifically at issue in any of 
the cases. In Chuen v. Esperdy, 285 F.2d 353 (2d Cir. 1960), the Second 
Circuit addressed whether ``Hong Kong, a colony of the United 
Kingdom,'' was a country for purposes of the removal statute. In a per 
curiam opinion of two paragraphs finding in favor of the government, 
the court concluded ``we think that any place possessing a government 
with authority to accept an alien deported from the United States can 
qualify as a ``country'' under the statute.'' Id. That issue is not in 
dispute; a place possessing a government with authority to accept an 
alien deported from the United States ``can'' qualify as a country. 
However, the converse does not flow from this conclusion, i.e., that a 
place not possessing a government with authority to accept an alien 
deported from the United States cannot qualify as a country for 
purposes of section 241(b) of the Act. One conclusion simply does not 
flow from the other as a matter of logic. In fact, the court in Chuen 
was not faced with, nor did it address, the latter question. 
Accordingly, Chuen does not support the commenters' position.
    Similarly, Delany v. Moraitis, 136 F.2d 129 (4th Cir. 1943), 
finding in favor of the government that an alien (a Greek citizen) 
could be deported to the custody of the Greek government in exile in 
England, does not support the proposition that ``country'' under 
section 241(b) of the Act requires the existence or functionality of a 
government. In Delany, it was not possible to deport the alien to 
Greece because it was under German control at the time. Id. at 130. The 
court framed the issue in Delany as follows: ``The question presented 
by the appeal, therefore, is whether, under the statute, the [alien] 
must be allowed to remain in this country, where he has no right to 
remain under our laws, or whether the statute will be complied with if 
he be returned to the political dominion and control of the country 
from which he came. We think the latter is the case.'' Id. Commenters, 
in citing Delany, focus on the following statement in support of their 
proposition--``a man's `country' is more than the territory in which 
its people live. The term is used generally to indicate the state, the 
organization of social life which exercises sovereign power in behalf 
of the people.'' Id. at 130. The fact that a country is ``more than'' 
the territory in which its people live--especially considering the 
unique factual circumstance of the case involving a government in exile 
recognized by the United States--does not exclude that a country is 
``at least'' the territory in which its people live. As such, Delany 
does not support the proposition that ``country'' under 241(b) of the 
Act requires the existence or functionality of a government; in fact, 
as with Chuen, Delany simply did not address the specific issue of 
whether the term ``country'' in the removal provision requires the 
existence or functionality of a government. Accordingly, Delany does 
not support the commenters' position. It should be noted that the 
predecessor to section 241(b)(2)(F) of the Act was enacted post-Delany 
to allow for removal to governments in exile and that the Board of 
Immigration Appeals (Board) in Matter of Linnas, 19 I&N Dec. 302, 305 
(BIA 1985), found that Delany was no longer effective law for the 
proposition that ``country'' can be construed to encompass a government 
in exile.
    Finally, contrary to the commenters' suggestion, Rogers v. Sheng, 
280 F.2d 663, 664-65 (D.C. Cir. 1960), finding in favor of the 
government that Formosa was a country for purposes of removal because 
it had a government that had ``undisputed control of the island,'' is 
also not dispositive of the current issue. Formosa had been ceded by 
China to Japan in 1895. Id. at 664. The alien argued that Formosa was 
neither a country nor part of any country. Id. at 663. The court 
described the status of Formosa as follows: ``Following World War II, 
Japan surrendered all claims of sovereignty over Formosa. But in the 
view of our State Department, no agreement has ``purported to transfer 
the sovereignty of Formosa to (the Republic of) China.'' At the present 
time, we accept the exercise of Chinese authority over Formosa, and 
recognize the Government of the Republic of China * * * as the legal 
Government of China.'' Id. With this background in mind, the 
commenters' reliance on the fact that the court found that Formosa was 
a country because there was ``a government on Formosa which has 
undisputed control of the island,'' id., and therefore that the 
existence or functionality of a government is a requirement under 
section 241(b) of the Act, is misplaced. As with Chuen and Delany, the 
court in Rogers did not address the precise question of whether the 
term ``country'' under the predecessor to section 241(b) of the Act 
required the existence or functionality of a government. The court 
simply addressed the question of whether, as espoused by the 
government, Formosa was a country under the predecessor to section 
241(b) of the Act based on the facts of the case, and the court ruled 
in favor of the government. Accordingly, the commenters' assertion that 
these three cases are ``longstanding judicial interpretations'' 
demonstrating that the term ``country'' requires the existence or 
functionality of a government is incorrect. While the cases were 
decided decades ago (one in 1943, and two in 1960) and they are 
``longstanding'' in that sense, the remainder of the commenters'' 
proposition, i.e., that these cases demonstrate that the term 
``country'' requires the existence or functionality of a government, 
does not follow from these cases. In fact, the cases did not directly 
address the issue of whether the term ``country'' as used in section 
241(b) of the Act requires existence or functionality of a government. 
As such, the commenters' statement that the regulations are ultra vires 
because they contravene established precedent is simply incorrect.
    Second, the specific language chosen by Congress within section 
241(b) of the Act demonstrates that ``country'' does not require the 
existence or functionality of a government. It is settled that 
``[w]here Congress includes particular language in one section of a 
statute but omits it in another section of the same Act, it is 
generally presumed that Congress acts intentionally and purposely in 
the disparate inclusion or exclusion.'' INS v. Cardozo-Fonseca, 480 
U.S. 421, 432 (1987) (quoting Russello v. United States, 464 U.S. 16, 
23 (1983)). A review of section 241(b) of the Act demonstrates that 
Congress included and excluded particular language, not only within the 
same statute, but within the same subsection. Specifically, section 
241(b)(2) of the Act contains references to both ``country'' and to the 
``government of the country,'' the latter term being used in the 
provisions discussing acceptance. Accordingly, the text of section 
241(b)(2) of the Act itself supports the fact that ``country'' refers 
to a geographic region, without regard to the existence of 
functionality of a government. If Congress had intended the term 
``country'' to also encompass an existing or functioning government, it 
would have been unnecessary for

[[Page 665]]

Congress to have also used ``government of the country'' within the 
same subsection as ``country.'' The fact that Congress deliberately 
chose both specific terms within such close proximity demonstrates that 
each term has a separate and distinct meaning, i.e., the term 
``country'' does not depend on the existence or functionality of a 
government, but the term ``government of the country,'' used in the 
provision addressing acceptance, does encompass a ``government.'' 
Furthermore, the position of the Secretary and Attorney General is 
supported by the Supreme Court's decision in Smith v. United States, 
507 U.S. 197 (1993). While construing the Federal Tort Claims Act 
(FTCA) in Smith, the Court noted that the ``commonsense meaning'' of 
the term ``country'' is ```[a] region or tract of land.''' Id. at 201. 
Indeed, the Court held in that case that Antarctica is a ``country'' 
within the meaning of the FTCA ``even though it has no recognized 
government.'' Id. The Court in Smith did acknowledge ``that this is not 
the only possible interpretation of the term, and it is therefore 
appropriate to examine other parts of the statute before making a final 
determination.'' Id. As stated above, examining the other parts of 
section 241(b) of the Act mandates the conclusion that ``country'' does 
not depend on the existence or functionality of a government; if it 
did, other provisions within the same subsection would be rendered 
meaningless, a result to be avoided in statutory construction. See, 
e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2002) (```a 
statute must, if possible, be construed in such fashion that every word 
has some operative effect''') (quoting United States v. Nordic Village, 
Inc., 503 U.S. 30, 36 (1992)); TRW, Inc. v. Andrews, 534 U.S. 19, 30 
(2001) (``[w]e are ``reluctant to treat statutory terms as surplusage 
in any setting''') (quoting Duncan v. Walker, 533 U.S. 167, 174 
(2001)).
    For these reasons, the Secretary and Attorney General reject the 
commenters' suggestion that the term ``country'' in section 241(b)(2) 
of the Act requires the existence or functionality of a government. 
Accordingly, the regulations in this area are being promulgated as 
proposed.

3. Acceptance Under Section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2)

    Several commenters generally contended that section 241(b)(2) of 
the Act, 8 U.S.C. 1231(b)(2), requires acceptance by the government of 
a country in all circumstances, and that, absent acceptance, the 
Executive Branch's authority is legally circumscribed. As discussed in 
more detail below, the so-called ``acceptance requirement'' is not a 
requirement that precludes the Executive Branch from exercising its 
authority; in fact, there is no general ``acceptance requirement'' that 
precludes action as a legal matter, with the exception contained in 
section 241(b)(2)(E)(iv) of the Act, where the acceptance itself 
provides the only connection between the alien and the removal country 
at issue. Instead of labeling the general acceptance language in 
section 241(b)(2) of the Act as a general ``acceptance requirement,'' 
it is more appropriately labeled the ``acceptance exception,'' in that 
parts of section 241(b)(2) of the Act release the Secretary of Homeland 
Security from the mandatory language of ``shall remove'' if certain 
circumstances are not present, one of those circumstances being 
acceptance by the government of a country. In this regard, there is a 
difference between a legal requirement that precludes the Executive 
Branch from exercising its authority generally, which is what the 
commenters' proposed interpretation would create, versus a 
consideration that enables the Executive Branch to carry out its 
obligations under the Act, while continuing to balance the foreign 
policy considerations of its actions. Additionally, the question of 
whether removal should be effectuated absent acceptance by the 
government of the removal country is a separate inquiry; that question 
has no bearing on whether the Secretary of Homeland Security is 
authorized to do so.
    In construing the Act, the Supreme Court repeatedly has held itself 
``bound to assume that the legislative purpose is expressed by the 
meaning of the words used.'' INS v. Cardozo-Fonseca, 480 U.S. 421, 431 
(1987) (internal quotations omitted). That approach is consistent with 
the Court's more general admonition that ``[t]he plain meaning of 
legislation should be conclusive, except in the `rare cases [in which] 
the literal application of a statute will produce a result demonstrably 
at odds with the intentions of its drafters.' '' United States v. Ron 
Pair Enters. Inc., 489 U.S. 235, 242 (1989) (alteration in original); 
see also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) 
(``[A] legislature says in a statute what it means and means in a 
statute what it says there.''). As set forth below, except for section 
241(b)(2)(E)(vii) of the Act, the language of section 241(b)(2) of the 
Act does not require, as a legal prerequisite, that acceptance be 
obtained before removal of an alien.
    First, section 241(b)(2)(A)-(C) of the Act, which is generally the 
first step in the country-of-removal inquiry, addresses removal to a 
country designated by the alien. In pertinent part, those provisions 
state that the Secretary of Homeland Security ``shall remove'' an alien 
to the country designated by the alien (section 241(b)(2)(A) of the 
Act), but that the Secretary ``may disregard a designation'' if ``the 
government of the country is not willing to accept the alien into the 
country'' (section 241(b)(2)(C)(iii) of the Act) or if the Secretary 
``decides that removing the alien to the country is prejudicial to the 
United States'' (section 241(b)(2)(C)(iv) of the Act). It is important 
to note that within this provision, Congress employed both the 
mandatory term ``shall'' and the permissive term ``may.'' The use of 
both these words within the same subsection is highly instructive. See, 
e.g., United States v. Rodgers, 461 U.S. 677, 706 (1983) (``The word 
`may,' when used in a statute, usually implies some degree of 
discretion.''); Lopez v. Davis, 531 U.S. 230, 241 (2001) (attaching 
significance to the fact that ``Congress' use of the permissive `may' 
in [18 U.S.C.] 3621(e)(2)(B) contrasts with the legislators' use of a 
mandatory `shall' in the very same section''); Anderson v. Yungkau, 329 
U.S. 482, 485 (1947) (``[W]hen the same [Federal Rule of Civil 
Procedure] uses both `may' and `shall,' the normal inference is that 
each is used in its usual sense--the one being permissive, the other 
mandatory.''). Accordingly, the statute mandates that the Secretary 
``shall remove'' an alien to the country designated, but also provides 
that the Secretary ``may'' disregard the designated country of removal 
if the government of the country is not willing to accept the alien. 
Nowhere does it require that the Secretary must, as a legal matter, 
disregard that designation. Far from containing an ``acceptance 
requirement,'' section 241(b)(2)(C)(iii) of the Act contains an 
``acceptance exception'' to removal, enabling the Secretary to 
disregard the designation made by an alien when the government of the 
country chosen by the alien is not willing to accept the alien, thereby 
providing the Executive Branch with discretion to act in a manner 
consistent with its foreign policy. Accordingly, contrary to the 
commenters' assertion, the first step of the country-of-removal inquiry 
does not support the conclusion that acceptance is a legal requirement 
for removal.
    Second, section 241(b)(2)(D) of the Act, the second step in the 
country-of-removal inquiry, also does not, as a legal matter, preclude 
removal without

[[Page 666]]

acceptance. In pertinent part, that provision states that the Secretary 
``shall remove'' the alien to a country of which the alien is a 
subject, national, or citizen, ``unless the government of the country * 
* * is not willing to accept the alien.'' As with section 241(b)(2)(C), 
that provision does not bar removal without acceptance; it requires 
removal to any country of which the alien is a subject, national, or 
citizen, but provides an exception when such a country fails to provide 
acceptance. Accordingly, section 241(b)(2)(D)(ii) of the Act also does 
not contain a legal impediment to removal; instead, like the language 
in section 241(b)(2)(C)(iii), it releases the Secretary from the 
mandatory language of ``shall remove'' and preserves the discretion of 
the Secretary of Homeland Security to act.
    Finally, section 241(b)(2)(E) of the Act, the third step in the 
country-of-removal inquiry, does not support the commenters' position 
that acceptance by a country is a legal requirement to removal 
generally. Contrary to the commenters' assertions, neither the 
structure, history, nor title of section 241(b)(2)(E) of the Act 
supports the proposition that acceptance is a requirement. Section 
241(b)(2)(E) of the Act states that the Secretary ``shall remove'' the 
alien to any of seven specified countries or categories of countries. 
The first six of these are countries with some prior connection to the 
alien and are defined without any reference to acceptance, including, 
for example, ``[t]he country in which the alien was born,'' see section 
241(b)(2)(E)(iv) of the Act. The final provision, on the other hand, 
states: ``If impracticable, inadvisable, or impossible to remove the 
alien to each country described in a previous clause of this 
subparagraph, another country whose government will accept the alien 
into that country,'' see section 241(b)(2)(E)(vii) of the Act (emphasis 
added). It is in this last clause, and only in this last clause, that 
section 241(b)(2) of the Act contains what is appropriately labeled an 
``acceptance requirement.'' Specifically, the wording of this last 
clause (``another country whose government will accept the alien into 
that country'') stands in stark contrast to any of the other so-called 
acceptance provisions discussed above. Additionally, the fact that the 
only reference to acceptance within section 241(b)(2)(E) of the Act is 
contained in clause (vii) and clearly absent from the other six clauses 
demonstrates that there is no general acceptance requirement within 
section 241(b)(2)(E) of the Act. See Cardozo-Fonseca, 480 U.S. at 432 
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (```Where 
Congress includes particular language in one section of a statute but 
omits it in another section of the same Act, it is generally presumed 
that Congress acts intentionally and purposely in the disparate 
inclusion or exclusion.'''). Not only did Congress include and exclude 
reference to acceptance within the same statute, it did so within the 
same subparagraphs of section 241(b)(2)(E) of the Act. Accordingly, the 
language of section 241(b)(2)(E) of the Act only requires acceptance as 
a legal prerequisite to removal in clause (vii); it does not require 
acceptance as a legal prerequisite to removal in clauses (i)-(vi). 
Additionally, it should be noted that what constitutes acceptance for 
purposes of the Act is a determination made by the Secretary of 
Homeland Security.
    The commenters' contention that the history of section 241(b)(2)(E) 
of the Act supports a broad imposition of the acceptance requirement 
throughout clauses (i)-(vi) of section 241(b)(2)(E) of the Act, where 
no reference to acceptance exists, is also erroneous. Several 
commenters state that because sections 241(b)(2)(C)(iii), 
241(b)(2)(D)(ii), and 241(b)(2)(E)(vii) of the Act require acceptance, 
and that because section 241(b)(2)(E) of the Act is an integral part of 
241(b) of the Act, ``only the most mechanical and contrived reading 
would assert that the requirement does not apply with equal force'' to 
sections 241(b)(2)(E)(i)-(vi) of the Act. However, as already discussed 
above, sections 241(b)(2)(C)(iii) and (D)(ii) do not contain an 
``acceptance requirement,'' but an ``acceptance exception'; the only 
subsection within section 241(b)(2) of the Act that contains an 
acceptance requirement is 241(b)(2)(E)(vii) of the Act. There is 
nothing ``contrived or mechanical'' about reading an acceptance 
requirement only within that subsection. In fact, far from being 
``contrived or mechanical,'' it is what the statute mandates, since 
Congress included specific words within one subsection but excluded 
them within the others.
    Certain commenters suggest that the undeniably progressive nature 
of the provisions set forth in section 241 of the Act provides an 
``indication'' that acceptance is required within all subsections of 
section 241(b)(2)(E) because it would ``twist the removal process'' if 
acceptance would be required from a country with the closest connection 
to the alien, i.e., the country of which the alien is a subject, 
national, or citizen, but not from countries with more attenuated 
connections to the alien. The Secretary of Homeland Security and the 
Attorney General again reiterate that, contrary to the commenters' 
assertion, acceptance is not generally required within section 
241(b)(2) of the Act. For the reasons already discussed, there is only 
one acceptance requirement within section 241(b)(2) of the Act, and it 
is found at section 241(b)(2)(E)(vii) of the Act. Accordingly, the 
progressive nature of section 241(b)(2) of the Act, in terms of 
providing steps for determining the country of removal, has no bearing 
on acceptance.
    Some commenters also proposed that the heading of section 
241(b)(2)(E) of the Act indicates that acceptance is required in all 
circumstances. Commenters state that the change of the heading from 
``other countries'' to ``additional removal countries'' indicates 
congressional intent that the countries captured by section 
241(b)(2)(E) of the Act be different from the previous countries. 
However, the title of the section--Additional Removal Countries--is not 
accurately described as imposing an acceptance requirement not 
otherwise contained in the text of the provision. Commenters' statement 
correctly alludes to the proposition that the ``title of a statute and 
the heading of a section'' are ``tools available for the resolution of 
doubt about the meaning of a statute.'' Almendarez-Torres v. United 
States, 523 U.S. 224, 234 (1998); but see INS v. St. Cyr, 533 U.S. 289, 
308-309 (2001) (noting that ``title alone is not controlling''); INS v. 
National Center for Immigrants' Rights, Inc., 502 U.S. 183, 189 (1991). 
However, contrary to the commenters' proposition, the fact that 
headings can be ``tools available for resolution of doubt'' is not 
instructive in this case where there is no need to resolve any doubt. 
The change in the heading from ``other'' to ``additional'' cannot 
overcome the fact that clauses (i) through (vi) of section 241(b)(2)(E) 
of the Act do not contain any mention of acceptance. There is simply no 
doubt to resolve in this case.
    Finally, some commenters also suggested that section 241(b)(2)(E) 
of the Act generally requires acceptance by all receiving countries 
because to find otherwise would lead to ``unmanageable'' and ``absurd'' 
results in that an alien could be removed to the ``country from which 
the alien was admitted to the United States,'' under section 
241(b)(2)(E)(i) of the Act, without acceptance by the government of 
that country, even if the country was simply a border country through 
which the alien was traveling or the country was simply host to a major 
airline. In

[[Page 667]]

this regard, these commenters stated that ``[t]he statute did not grant 
unfettered discretion to the DHS to remove an alien when the agency 
deemed it possible to do so, and the agency does not have the power to 
read this authority into the statute.'' In fact, the commenters are 
mistaken. Section 241(b)(2) of the Act simply provides a checklist of 
sorts outlining the countries to which an alien may be removed. Section 
241(b)(2) of the Act, however, does not provide the authority for DHS 
to remove an alien once that alien is ordered removed; the authority is 
`` `a fundamental sovereign attribute exercised by the Government's 
political departments largely immune from judicial control.' '' Fiallo 
v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States 
ex. rel. Mezei, 345 U.S. 206, 210 (1953)). Commenters are confusing two 
different concepts, i.e., whether particular action is appropriate, as 
opposed to whether particular action is authorized. There is a 
difference between the legal authority to act and the discretion to 
act. The Secretary of Homeland Security is authorized to remove an 
alien pursuant to sections 241(b)(2)(E)(i)-(vi) of the Act, regardless 
of any acceptance by the government of the foreign country. Whether it 
is wise or practical to do so is simply a separate inquiry, not at all 
related to whether there is authority to do so. As stated in the Notice 
of Proposed Rulemaking, ``the general practice of the Executive Branch 
is not to attempt to remove an individual under the Act to a country 
whose government refuses to accept him.'' 69 FR at 42904. This general 
practice is based upon an acknowledgement that it is not generally 
practical to remove aliens to a country whose government refuses to 
accept him. However, the practice is based on considerations of foreign 
policy, nothing more.
    Accordingly, the Secretary of Homeland Security and the Attorney 
General find it unnecessary to amend the proposed rules based on these 
comments.

4. Acceptance, Judicial Precedent, and Ratification by Congress

    Several commenters suggest that there is historical precedent from 
both the federal courts and the Board of Immigration Appeals (the 
Board) requiring acceptance. These commenters suggest that Congress 
``ratified'' this acceptance requirement in adopting the current 
version of section 241 of the Act, 8 U.S.C. 1231. Neither the decisions 
of the federal courts or the Board support the position that acceptance 
is a requirement under current section 241(b)(2) of the Act, nor has 
Congress ratified such interpretation.
    The federal court cases cited by some commenters do not support the 
proposition that these courts have interpreted the removal statute to 
require acceptance as a legal prerequisite. In fact, most of the cases 
cited have not specifically considered the issue of whether acceptance 
was a legal prerequisite. In United States ex rel. Hudak v. Uhl, 20 
F.Supp. 928 (N.D.N.Y. 1937), for example, the court stated that ``[i]t 
will be presumed in every case of deportation that the United States 
immigration authorities have obtained the consent of the native 
sovereignty to receive the deported alien.'' Id. at 930. There was no 
clear discussion by the court whether its ``presumption'' was based on 
a legal prerequisite in the removal provision versus the practical 
considerations regarding what would occur if an alien is taken to a 
foreign sovereign and that sovereign refuses to receive the alien. As 
such, Hudak cannot be said to support the commenters' proposition that 
acceptance is a legal prerequisite to removal. In Chi Sheng Liu v. 
Holton, 297 F.2d 740 (9th Cir. 1962), the court noted that the 
appellant contended that the Act required acceptance before he could be 
deported. Id. at 743. The court then considered that a letter from the 
Consul General of the country was sufficient evidence of acceptance. 
Id. at 744. Because there was an indication of acceptance from the 
government of the proposed country of removal, there was no need for 
the court to consider the question of whether that acceptance was a 
legal prerequisite to removal. Similarly, United States ex rel. Lee 
Ming Hon v. Shaughnessy, 142 F.Supp 468 (S.D.N.Y. 1956), is a two-
paragraph decision, the focus of which is whether a particular document 
is sufficient proof that the government of the proposed country of 
removal provided acceptance. There is no discussion regarding whether 
acceptance is a legal requirement to removal, as opposed to a practical 
obstacle to removal. Accordingly, these cases do not stand for the 
proposition that acceptance is a legal requirement to removal. The 
common thread among the cases involves the practical difficulties in 
removal where acceptance is lacking, a fact the Executive Branch 
acknowledged in its Notice of Proposed Rulemaking. See, e.g., 69 FR at 
42904.
    In United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 
1959), the court did state ``we think that deportation * * * is subject 
to the condition expressed in the seventh subdivision [the predecessor 
to section 241(b)(2)(E) of the Act]: i.e., that the `country' shall be 
`willing to accept' him `into its territory.' '' Id. at 928; see also 
Amanullah & Wahidullah v. Cobb, 862 F.2d 362 (1st Cir. 1988) (Pettine, 
J.) (relying on Tom Man for the proposition that acceptance is a 
requirement and noting that there was communication from the proposed 
country of removal that the aliens would not be accepted); Lee Wei Fang 
v. Kennedy, 317 F.2d 180 (D.C. Cir. 1963), cert. denied, 375 U.S. 833 
(1963) (citing Tom Man for the proposition that acceptance is a 
requirement, yet not elaborating whether the requirement was legal or 
practical, and then focusing on what constituted a country). However, 
aside from the quoted statement itself, there is no elaboration by the 
court discussing the reason why it ``thought'' that deportation was 
subject to acceptance. Tom Man, and the cases citing it, did not engage 
in full analysis of the question whether acceptance is a legal 
prerequisite to removal.
    Similarly, the decisions of the Board cited by the commenters do 
not support their position that acceptance is a legal prerequisite to 
removal. In Matter of Anunciacion, 12 I&N Dec. 815 (BIA 1968), the 
Board stated that the question ``whether or not a specified country 
will accept the alien as a deportee is one of comity concerning solely 
the United States and the country in question.'' Id. at 817. 
Accordingly, Matter of Anunciacion cannot fairly be described as 
supporting the position that acceptance is a legal, as opposed to 
practical, prerequisite to removal. Additionally, commenters rely on 
Matter of Linnas, 19 I&N Dec. 302 (BIA 1985); however, reliance on this 
case is also misplaced. In Matter of Linnas, the main question before 
the Board was whether the offices of the Republic of Estonia in New 
York City constituted a country for purposes of removal and whether the 
alien could therefore be removed to those offices. The Board answered 
the question in the negative. Id. at 307. In determining whether the 
offices in New York City constituted a country, the Board cited Tom 
Man, as the case arose in that circuit, and found that the language of 
the removal section ``expressly requires, or has been construed to 
require, that the `government' of a country selected under any of the 
three steps must indicate it is willing to accept a deported alien into 
its `territory.' '' Id. However, this statement by the Board was made 
in the context of deciding what constituted a country for purposes of 
removal, and the Board was relying

[[Page 668]]

on Tom Man, as circuit precedent, in making this statement. The Board 
did not address the fact that determining what constitutes a country 
for purposes of removal is one inquiry; the other inquiry being whether 
acceptance by the government of that country is a legal prerequisite to 
removal. Accordingly, Matter of Linnas is not instructive on whether 
acceptance is a legal prerequisite to removal because that issue was 
not before the Board.
    It is with this background regarding the existing case law that 
some commenters assert that Congress has ratified an acceptance 
requirement into section 241(b)(2) of the Act. The commenters classify 
the cases as being ``long-standing'' and having a ``consistent 
construction'' of the predecessors to section 241(b)(2) of the Act. 
However, as already described, there is no consistent construction that 
acceptance is a legal prerequisite to removal under section 241(b)(2) 
of the Act, except for section 241(b)(2)(E)(vii) of the Act, which does 
contain an acceptance requirement. Accordingly, there was no arguable 
settled precedent for Congress to ratify.
    Accordingly, the commenters are incorrect in their assertion that 
Congress has ratified an acceptance requirement into the entirety of 
section 241(b)(2) of the Act, even where the text of the section is 
clear that no such acceptance is legally required. Therefore, the 
Secretary and the Attorney General are adopting the proposed rules in 
this area unchanged.

5. Lack of General Acceptance Requirement and Effect on Other 
Provisions of the Act

    Some commenters suggest that the proposed rules would render parts 
of section 241(b)(2) of the Act, 8 U.S.C. 1231(b)(2), superfluous 
because the rule allows the Department of Homeland Security to remove 
an alien under section 241(a)(2)(E)(i)-(vi) of the Act to a country 
which, for example, would be prohibited under section 241(b)(2)(D) of 
the Act. The commenters' characterization is incorrect as there is no 
general ``prohibition'' on removal within section 241(b)(2) of the Act. 
As discussed at length above, the acceptance provisions within section 
241(b)(2) of the Act do not prohibit removal; they simply release the 
Secretary from the requirement to take action under certain 
circumstances. The authority to choose not to effectuate a removal 
under certain circumstances, i.e., the discretion granted to the 
Secretary, cannot accurately be labeled a ``prohibition'' as these 
commenters suggest. Accordingly, parts of section 241(b)(2) of the Act 
are not rendered superfluous.
    Likewise, the claim by certain commenters that section 241(a)(7)(A) 
of the Act, 8 U.S.C. 1231(a)(7)(A), would be rendered superfluous under 
these rules is incorrect. In the words of the commenters, ``[i]f a 
receiving country's refusal to accept a deportee could so easily be 
overridden, this provision, too, effectively would be useless.'' There 
is nothing ``useless'' or superfluous about this section. Section 
241(a)(7)(A) of the Act provides that an alien ordered removed is not 
eligible for employment authorization unless the Secretary of Homeland 
Security makes a ``specific finding that the alien cannot be removed 
due to the refusal of all countries designated by the alien or under 
this section to receive the alien.'' If the Secretary makes a 
``specific finding'' that the alien cannot be removed as a practical 
matter because of lack of acceptance, an alien may obtain employment 
authorization as appropriate. That is all the section provides, and it 
does so even though the Secretary is legally authorized to remove 
aliens under section 241(b)(2) of the Act, except for section 
241(b)(2)(E)(vii) of the Act, without the proposed removal country's 
acceptance. Therefore, this section is not rendered superfluous because 
it continues to operate notwithstanding these rules.
    Some commenters cite to the provisions relating to removal of alien 
terrorists in section 507(b)(2)(C) of the Act, 8 U.S.C. 1537(b)(2)(C), 
in the section where they are addressing superfluous provisions, yet 
they appear to be arguing that section 507(b)(2)(C) of the Act somehow 
instructs the reading of section 241(b)(2) of the Act without any 
further elaboration. It is unclear whether commenters are arguing that 
the alien terrorist removal provisions would be rendered superfluous, 
or whether the alien terrorist provisions mandate that an acceptance 
requirement be read into section 241(b)(2) of the Act where none is 
specifically contained. In any event, either proposition is incorrect. 
Congress specifically enacted separate provisions to be invoked as 
appropriate in dealing with alien terrorists. These provisions, 
detailed in sections 501 through 507 of the Act, include the 
establishment of a special removal court to handle alien terrorist 
cases, and create a framework for handling those cases. Accordingly, 
the provisions relating to removal of alien terrorists contained in 
sections 501 through 507 of the Act, 8 U.S.C. 1531-1537, are 
independent of the other provisions dealing with non-terrorist aliens 
and are not instructive regarding the general removal provisions and 
certainly do not in any way support the contention that section 
241(b)(2) of the Act legally requires acceptance by the proposed 
country of removal before removal can be effectuated, except as 
otherwise provided by Congress in section 241(b)(2)(E)(vii) of the Act.
    Some commenters also seem to suggest that section 243(d) of the 
Act, 8 U.S.C. 1253(d), which permits the Secretary of State to 
discontinue the issuance of visas to citizens, subjects, nationals, and 
residents of a country if the government of that country refuses to 
accept their return, is rendered superfluous. This is incorrect, as 
nothing in these rules affects the Secretary of State's legal authority 
to discontinue the issuance of visas for individuals of certain 
countries if those countries do not affirmatively accept their 
citizens, subjects, nationals, or residents when asked to do so by the 
United States. The Secretary of State may continue to take such action 
as he or she deems appropriate under this section notwithstanding the 
interpretations in these rules. Section 243(d) of the Act simply 
provides a potential consequence when a foreign government refuses to 
accept its nationals, citizens, etc. The fact that the Secretary of 
Homeland Security may choose to remove an alien to a foreign country 
without acceptance by the government of that country because the 
Secretary has determined that it is in the foreign policy interests of 
the United States does not negate the import of section 243(d) in 
authorizing the Secretary of State to take appropriate action against 
that country by discontinuing issuance of visas. What sometimes cannot 
be obtained through diplomacy in terms of obtaining the consent of the 
government of a foreign country to accept its nationals may sometimes 
be obtained when some adverse consequence attaches to the actions of 
the government of the foreign country. As a result, the Secretary of 
Homeland Security rejects the commenters' claim that the proposed 
regulations render portions of the Act superfluous.

6. Office of Legal Counsel Opinion

    Some commenters focus on an opinion issued by the Office of Legal 
Counsel (OLC) of the Department of Justice that they contend supports 
the position that acceptance by the government of a country is a legal 
prerequisite to removal. See Memorandum Opinion for the Deputy Attorney 
General: Re: Limitations on the Detention Authority of the Immigration 
and Naturalization Service (OLC Feb.

[[Page 669]]

20, 2003) https://www.usdoj.gov/olc/INSDetention.htm. That opinion 
addressed, inter alia, the circumstances under which a removable alien 
may permissibly be detained for more than 90 days during the pendency 
of the removal process. See id. at 15-24. In explaining why the removal 
process may sometimes take longer than 90 days, the opinion described 
step three of the sequential process as follows:

    If the country of the alien's citizenship or nationality 
declines to accept the alien, the Attorney General is instructed to 
attempt to remove the alien to one of six listed countries, 
including the country in which the alien was born and the country 
from which the alien was admitted to the United States. See INA 
Sec.  241(b)(2)(E)(i)-(vi). Each of those countries, of course, 
would have to be separately negotiated with by the United States, 
and would also have to be given an appropriate amount of time--
presumably 30 days--to decide whether to accept or reject the alien. 
Finally, if none of the six listed countries is willing to accept 
the alien, or if the Attorney General decides that it would be 
``inadvisable'' to send the alien to any of the listed countries 
that is willing to accept him, the Attorney General is instructed to 
remove the alien to any country of the Attorney General's choice 
whose government is willing to accept the alien. See INA Sec.  
241(b)(2)(E)(vii).

    Id. at 21 n.11. Importantly, the OLC opinion did not address the 
specific issue of whether acceptance by the government of a country was 
a legal prerequisite to removal under section 241(b)(2) of the Act or 
merely a pragmatic consideration. In fact, the section of the opinion 
quoted by the commenters is contained in a footnote to the opinion, 
where the text of the opinion is focusing on the length of time 
negotiating with different governments may take. As was stated in the 
Notice of Proposed Rulemaking, ``the general practice of the Executive 
Branch is not to attempt to remove an individual under the Act to a 
country whose government refuses to accept him.'' 69 FR at 42904. 
Accordingly, the OLC opinion was simply relying on what was the 
standard practice of the Executive Branch as it related to length of 
time it might take to negotiate with foreign governments; it was not 
espousing a legal position that acceptance by a government is required 
under section 241(b)(2) of the Act. In this rule, it is the Attorney 
General who is construing the legal interpretation of the Act on this 
particular issue (an issue which was not the focus of the OLC opinion). 
The Attorney General is vested with the authority to issue 
interpretations of the Act, and his determinations are controlling, as 
provided in section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1).

7. Agency Operating Instructions

    Some commenters cite section 243.1(c)(1) of the Immigration and 
Naturalization Service Operations Instructions for the following 
statement: ``deportation cannot be effected until travel documentation 
has been obtained.'' Based on this statement in the operating 
instructions, commenters contend that acceptance is generally required 
under section 241(b)(2) of the Act. However, agency operating 
instructions provide guidance to its employees and do not have the 
force and effect of law. See, e.g., Haitian Refugee Center v. Baker, 
953 F.2d 1498, 1512 (11th Cir.), cert. denied, 502 U.S. 1122 (1992); 
Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (quoting Dong 
Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir. 1989)); see also United 
States v. Caceres, 440 U.S. 741 (1979) (noting that Internal Revenue 
Service Manual did not create enforceable rights warranting suppression 
of evidence obtained in violation of Manual). The operations 
instructions contain guidance for line officers; they are not 
indicative of agency authority generally. Accordingly, commenters' 
reliance on this 10-word phrase within the operating instructions 
dealing with travel documentation does not support the proposition that 
acceptance is a legal requirement under section 241(b)(2) of the Act. 
Indeed, as the Secretary of Homeland Security has already recognized, 
``the general practice of the Executive Branch is not to attempt to 
remove an individual under the Act to a country whose government 
refuses to accept him.'' 69 FR 42904. Since it is not the general 
practice of the Executive Branch to do so, and since acceptance can be 
demonstrated by providing travel documentation, this operating 
instruction is not inconsistent with the fact that acceptance is not a 
legal requirement to removal, but a practical one. Additionally, this 
10-word phrase within the operating instruction does not create an 
enforceable right that does not otherwise exist in the statute itself. 
Therefore, the agency operating instructions do not support the 
commenters' position that acceptance is generally required.

8. Removal of Aliens to Countries Without Functioning Foreign 
Governments

    Certain commenters suggested that human rights concerns preclude 
the United States from returning aliens to countries without 
functioning governments, as could occur under the proposed rules. This 
proposition by commenters would eviscerate the specific provisions 
within the Act and the regulations that provide for protection under 
certain circumstances and would create a separate protection provision 
flowing solely from customary international law.
    The Act and regulations provide various mechanisms whereby aliens 
can seek protection from removal. Specifically, an alien present in the 
United States may apply for asylum if he or she establishes a well-
founded fear of persecution on account of race, religion, nationality, 
membership in a particular social group, or political opinion, see 
sections 101(a)(42) and 208 of the Act, 8 U.S.C. 1101(a)(42), 1158. 
Similarly, an alien may apply for withholding of deportation to a 
particular country under section 241(b)(3)(A) of the Act, 8 U.S.C. 
1231(b)(3)(A), if he or she establishes that it is more likely than not 
that he or she will be persecuted on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion. Additionally, the regulations implementing the Convention 
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or 
Punishment (Convention Against Torture), provide protection, in the 
form of withholding of removal or deferral of removal, if an alien is 
more likely than not to be tortured if removed to the proposed country 
of removal. 8 CFR 208.16(c)(3), 208.17(a); see Convention Against 
Torture, S. Treaty Doc. No. 100-20 (1988), 23 I.L.M. 1027 (1984), 
approved by the United States Senate Oct. 28, 1990, 136 Cong. Rec. 
36625 (1990). Except for deferral of removal under the Convention 
Against Torture under 8 CFR 208.17(a), however, these provisions also 
exclude aliens from seeking protection under certain circumstances. For 
example, section 208(b)(2) of the Act lists exceptions for aliens 
seeking asylum; section 241(b)(3)(b) of the Act lists exceptions for 
aliens seeking withholding of removal; and 8 CFR 208.16(d)(2) lists 
exceptions for aliens seeking withholding of removal under the 
Convention Against Torture.
    Additionally, section 244 of the Act, 8 U.S.C. 1254a, provides 
temporary protected status for nationals of a foreign state if the 
Secretary of Homeland Security ``finds that there is an ongoing armed 
conflict within the state'' and returning aliens to the state ``would 
pose a serious threat to their personal safety,'' or ``there exist 
extraordinary and temporary conditions in the foreign state that 
prevent aliens who are nationals of the state from returning to the 
state in safety, unless

[[Page 670]]

the [Secretary of Homeland Security] finds that permitting the aliens 
to remain temporarily in the United State is contrary to the national 
interest of the United States.'' However, section 244(c)(2) of the Act 
also excludes certain aliens from temporary protected status.
    These provisions demonstrate that Congress provided for protection 
from removal in specific circumstances and, even when protection is 
available, excluded certain aliens from obtaining such protection. The 
commenters' general assertions that international law prohibits removal 
of aliens to a country without a functioning government, 
notwithstanding an alien's inability to qualify for protection under 
any or the provisions of the Act or regulations mentioned above, are 
misplaced because it would create obligations for the United States 
that are not cognizable in domestic courts. ``Several times, indeed, 
the Senate has expressly declined to give the federal courts the task 
of interpreting and applying international human rights law, as when 
its ratification of the International Covenant on Civil and Political 
Rights declared that the substantive provisions of the document were 
not self-executing. These reasons argue for great caution in adapting 
the law of nations to private rights.'' Sosa v. Alvarez-Machain, 542 
U.S.--124 S.Ct. 2739, 2763-64 (No. 03-339, June 28, 2004) (citing 138 
Cong. Rec. 8071 (1992)). For example, article 3 of the Convention 
Against Torture, is often relied upon for the requirement that the 
United States may not remove an individual to a country where it is 
more likely than