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. $241.33 Expulsion. (a) Execution of order. Except in the exercise of discretion by the district director, and for such reasons as are set forth in §212.5(a) of this chapter, once an order of deportation becomes final, an alien shall be taken into custody and the order shall be executed. For the purposes of this part, an order of deportation is final and subject to execution upon the date when any of the following occurs: (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. In the case of an order entered by any of the authorities enumerated above, the order shall be executed no sooner than 72 hours after service of the decision, regardless of whether the alien is in Service custody, provided that such period may be waived on the knowing and voluntary request of the alien. Nothing in this paragraph shall be construed, however, to preclude assumption of custody by the Service at the time of issuance of the final order. PARTS 242-243-[RESERVED] PART 244-TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES Sec. 244.1 Definitions. 244.2 Eligibility. 244.3 Applicability of grounds of inadmis sibility. 244.4 Ineligible aliens. 244.5 Temporary treatment benefits for eligible aliens. 244.6 Application. 244.7 Filing the application. 244.8 Appearance. 244.9 Evidence. 244.10 Decision by the district director or Administrative Appeals Unit (AAU). 244.11 Renewal of application; appeal to the Board of Immigration Appeals. 244.12 Employment authorization. 244.13 Termination of temporary treatment benefits. 244.14 Withdrawal of Temporary Protected Status. 244.15 Travel abroad. 244.16 Confidentiality. 244.17 Annual registration. 244.18 Issuance of charging documents; detention. 244.19 Termination of designation. 244.20 Waiver of fees. AUTHORITY: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2. $244.1 Definitions. As used in this part: Act means the Immigration and Nationality Act, as amended by the Immigration Act of 1990. Brief, casual, and innocent absence means a departure from the United States that satisfies the following criteria: (1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence; (2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and (3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law. Charging document means Form I-221 (Order to Show Cause and Notice of Hearing), Form I-221S (Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien) or Form I-122 (Notice to Applicant for Admission Detained for Hearing before Immigration Judge). Continuously physically present means actual physical presence in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences as defined within this section. Continuously resided means residing in the United States for the entire period specified in the regulations. An alien shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence as defined within this section or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien. Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244A of the Act, the crime shall be treated as a misdemeanor. Misdemeanor means a crime committed in the United States, either: (1) Punishable by imprisonment for a term of one year or less, regardless of the term such alien actually served, if any, or (2) A crime treated as a misdemeanor under the term "felony" of this section. For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor. Prima facie means eligibility established with the filing of a completed application for Temporary Protected Status containing factual information that if unrebutted will establish a claim of eligibility under section 244A(c) of the Act. Register means to properly file, with the district director, a completed application, with proper fee, for Temporary Protected Status during the registration period designated under section 244A(b) of the Act. State means any foreign country or part thereof as designated by the At torney General pursuant to section 244A(b) of the Act. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.2 Eligibility. Except as provided in §§ 240.3 and 240.4, an alien may in the discretion of the district director be granted Temporary Protected Status if the alien establishes that he or she: (a) Is a national, as defined in section 101(a)(21) of the Act, of a state designated under section 244A(b) of the Act; (b) Has been continuously physically present in the United States since the effective date of the most recent designation of that state; (c) Has continuously resided in the United States since such date as the Attorney General may designate; (d) Is admissible as an immigrant except as provided under § 240.3; (e) Is not ineligible under §240.4; and (f)(1) Registers for Temporary Protected Status during the initial registration period; or (2) Is or was in valid immigrant or nonimmigrant status during the registration period, and registers no later than 30 days from the expiration of such status during any subsequent period of redesignation, or by February 3, 1994, whichever date is later. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] $244.3 Applicability of grounds of inadmissibility. (a) Grounds of inadmissibility not to be applied. Paragraphs (4), (5) (A) and (B), and (7)(A)(i) of section 212(a) of the Act shall not render an alien ineligible for Temporary Protected Status. (b) Waiver of grounds of inadmissibility. Except as provided in paragraph (c) of this section, the Service may waive any other provision of section 212(a) of the Act in the case of individual aliens for humanitarian purposes, to assure family unity, or when the granting of such a waiver is in the public interest. If an alien is inadmissible on grounds which may be waived as set forth in this paragraph, he or she shall be advised of the procedures for applying for a waiver of grounds of inadmissibility on Form I-601 (Application for waiver of grounds of excludability). (c) Grounds of inadmissibility that may not be waived. The Service may not waive the following provisions of section 212(a) of the Act: (1) Paragraphs (2)(A)(i), (2)(B), and (2)(C) (relating to criminals and drug offenses); (2) Paragraphs (3)(A), (3)(B), (3)(C), and (3)(D) (relating to national security); or (3) Paragraph (3)(E) (relating to those who assisted in the Nazi persecution). [56 FR 619, Jan. 7, 1991, as amended at 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.4 Ineligible aliens. An alien is ineligible for Temporary Protected Status if the alien: (a) Has been convicted of any felony or two or more misdemeanors, as defined in §240.1, committed in the United States, or (b) Is an alien described in section 243(h)(2) of the Act. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.5 Temporary treatment benefits for eligible aliens. (a) Prior to the registration period. Prior to the registration period established by the Attorney General, a national of a state designated by the Attorney General shall be afforded temporary treatment benefits upon the filing, after the effective date of such designation, of a completed application for Temporary Protected Status which establishes the alien's prima facie eligibility for benefits under section 244A of the Act. This application may be filed without fee. Temporary treatment benefits, if granted, shall terminate unless the registration fee is paid or a waiver is sought within the first thirty days of the registration period designated by the Attorney General. If the registration fee is paid or a waiver is sought within such thirty day period, temporary treatment benefits shall continue until terminated under $240.13. The denial of temporary treatment benefits prior to the registration period designated by the Attorney General shall be without prejudice to the filing of an application for Temporary Protected Status during such registration period. (b) During the registration period. Upon the filing of an application for Temporary Protected Status, the alien shall be afforded temporary treatment benefits, if the application establishes the alien's prima facie eligibility for Temporary Protected Status. Such temporary treatment benefits shall continue until terminated under § 240.13. (c) Denied benefits. There shall be no appeal from the denial of temporary treatment benefits. [56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.6 Application. An application for Temporary Protected Status shall be made in accordance with §103.2 of this chapter except as provided herein. Each application must be filed with the fee as provided in §103.7 of this chapter, by each individual seeking Temporary Protected Status, except that the fee for Form I765 will be charged only for those aliens who are nationals of El Salvador, and are between the ages of 14 and 65 (inclusive), and are requesting work authorization. Each application must consist of a completed Application for Temporary Protected Status (Form I821), Application for Employment Authorization (Form I-765), two completed fingerprint cards (Form FD-258) for every applicant who is fourteen years of age or older, two identification photographs (11⁄2′′×11⁄2′′), and supporting evidence as provided in §240.9. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.7 Filing the application. (a) An application for Temporary Protected Status shall be filed with the district director having jurisdiction over the applicant's place of residence. (b) An application for Temporary Protected Status must be filed during the registration period established by the Attorney General, except in the case of an alien described in § 240.2(f)(2). (c) Each applicant must pay a fee, as determined at the time of the designation of the foreign state, except as provided in § 240.5(a). (d) If the alien has a pending deportation or exclusion proceeding before the immigration judge or Board of Immigration Appeals at the time a state is designated under section 244A(b) of the Act, the alien shall be given written notice concerning Temporary Protected Status. Such alien shall have the opportunity to submit an application for Temporary Protected Status to the district director under §240.7(a) during the published registration period unless the basis of the charging document, if established, would render the alien ineligible for Temporary Protected Status under § 240.3(c) or 240.4. Eligibility for Temporary Protected Status in the latter instance shall be decided by the Executive Office for Immigration Review during such proceedings. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.8 Appearance. The applicant may be required to appear in person before an immigration officer. The applicant may be required to present documentary evidence to establish his or her eligibility. The applicant may have a representative as defined in §292.1 of this chapter present during any examination. Such representative shall not directly participate in the examination; however, such representative may consult with and provide advice to the applicant. The record of examination shall consist of the application, documents relating to the application, and the decision of the district director. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.9 Evidence. (a) Documentation. Applicants shall submit all documentation as required in the instructions or requested by the Service. The Service may require proof of unsuccessful efforts to obtain docu ments claimed to be unavailable. If any required document is unavailable, an affidavit or other credible evidence may be submitted. (1) Evidence of identity and nationality. Each application must be accompanied by evidence of the applicant's identity and nationality, if available. If these documents are unavailable, the applicant shall file an affidavit showing proof of unsuccessful efforts to obtain such identity documents, explaining why the consular process is unavailable, and affirming that he or she is a national of the designated state. A personal interview before an immigration officer shall be required for each applicant who fails to provide documentary proof of identity or nationality. During this interview, the applicant may present any secondary evidence that he or she feels would be helpful in showing nationality. Acceptable evidence in descending order of preference may consist of: (i) Passport; (ii) Birth certificate accompanied by photo identification; and/or (iii) Any national identity document from the alien's country of origin bearing photo and/or fingerprint. (2) Proof of residence. Evidence to establish proof of continuous residence in the United States during the requisite period of time may consist of any of the following: (i) Employment records, which may consist of pay stubs, W-2 Forms, certification of the filing of Federal, State, or local income tax returns; letters from employer(s) or, if the applicant has been self employed, letters from banks, and other firms with whom he or she has done business. In all of the above, the name of the alien and the name of the employer or other interested organization must appear on the form or letter, as well as relevant dates. Letters from employers must be in affidavit form, and shall be signed and attested to by the employer under penalty of perjury. Such letters from employers must include: (A) Alien's address(es) at the time of employment; (B) Exact period(s) of employment; (ii) Rent receipts, utility bills (gas, electric, telephone, etc.), receipts, or letters from companies showing the dates during which the applicant received service; (iii) School records (letters, report cards, etc.) from the schools that the applicant or his or her children have attended in the United States showing name of school and period(s) of school attendance; (iv) Hospital or medical records showing medical treatment or hospitalization of the applicant or his or her children, showing the name of the medical facility or physician as well as the date(s) of the treatment or hospitalization; (v) Attestations by churches, unions, or other organizations of the applicant's residence by letter which: (A) Identifies applicant by name; (B) Is signed by an official whose title is also shown; (C) Shows inclusive dates of membership; (D) States the address where applicant resided during the membership period; (E) Includes the seal of the organization impressed on the letter or is on the letterhead of the organization, if the organization has letterhead stationery; how the attestor (F) Establishes knows the applicant; and (G) Establishes the origin of the information being attested to. (vi) Additional documents to support the applicant's claim, which may include: (A) Money order receipts for money sent in or out of the country; (B) Passport entries; (C) Birth certificates of children born in the United States; (D) Bank books with dated transactions; (E) Correspondence between the applicant and other persons or organizations; (F) Social Security card; (K) Insurance policies, receipts, or letters; and/or (L) Any other relevant document. (3) Evidence of eligibility under section 244A(c)(2) of the Act. An applicant has the burden of showing that he or she is eligible for benefits under this part. (4) Evidence of valid immigrant or nonimmigrant status. In the case of an alien described in §240.2(f)(2), Form I-551 or Form I-94 must be submitted by the applicant. (b) Sufficiency of evidence. The sufficiency of all evidence will be judged according to its relevancy, consistency, credibility, and probative value. To meet his or her burden of proof the applicant must provide supporting documentary evidence of eligibility apart from his or her own statements. (c) Failure to timely respond. Failure to timely respond to a request for information, or to appear for a scheduled interview, without good cause, will be deemed an abandonment of the application and will result in a denial of the application for lack of prosecution. Such failure shall be excused if the request for information, or the notice of the interview was not mailed to the applicant's most recent address provided to the Service. [56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991; 58 FR 58937, Nov. 5, 1993. Redesignated at 62 FR 10367, 10382, Mar. 6, 1997] § 244.10 Decision by the district director or Administrative Appeals Unit (AAU). (a) Temporary treatment benefits. The district director shall grant temporary treatment benefits to the applicant if the applicant establishes prima facie eligibility for Temporary Protected Status in accordance with §240.5. (b) Temporary Protected Status. Upon review of the evidence presented, the district director may approve or deny the application for Temporary Protected Status in the exercise of discretion, consistent with the standards for eligibility in §§ 240.2, 240.3, and 240.4. (c) Denial by district director. The decision of the district director to deny Temporary Protected Status, a waiver of grounds of inadmissibility, or temporary treatment benefits shall be in writing served in person or by mail to |