Immigration Bond Notifications

<RULE> DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Part 103</CFR> <DEPDOC>[DHS Docket No. ICEB-2021-0015]</DEPDOC> <RIN>RIN 1653-AA85</RIN> <SUBJECT>Immigration Bond Notifications</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> On August 8, 2023, DHS issued an interim final rule which amended the regulations to authorize ICE to serve bond-related notices to obligors electronically. The rule allowed DHS to electronically serve demand and other immigration bond notices for delivery, order of supervision, or voluntary departure bonds to obligors who consent to electronic service. DHS is now issuing this final rule that introduces no substantive changes from the interim final rule. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> The effective date of this final rule is January 6, 2025. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Sharon Hageman, Deputy Assistant Director, Office of Regulatory Affairs and Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202-732-6960 (this is not a toll-free number). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Purpose of the Regulatory Action</HD> The Department of Homeland Security (DHS) published an interim final rule (IFR) on August 8, 2023, <SU>1</SU> <FTREF/> that established that DHS may electronically serve demand notices, and other bond notices for delivery, order of supervision, or voluntary departure bonds for obligors who consent to electronic service. <E T="03">See</E> 8 CFR 103.6(g) and (h). This final rule adopts the IFR provisions in 8 CFR 103.6(g) and (h) to electronically serve bond-related notices to obligors who consent to electronic service. This final rule also amends typographical errors, updates terminology for accuracy, and restructures regulatory text for clarity and consistency in 8 CFR 103.6(g) and (h). This final rule introduces no substantive changes from the IFR. <FTNT> <SU>1</SU>  Immigration Bond Notifications, 88 FR 53358 (Aug. 8, 2023). </FTNT> <HD SOURCE="HD2">B. Legal Authority</HD> The Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135 (Nov. 25, 2002), 6 U.S.C. 112, and the Immigration and Nationality Act of 1952 (INA), as amended, section 103(a)(1), 8 U.S.C. 1103(a)(1), charge the Secretary of DHS (the Secretary) with administration and enforcement of the immigration and naturalization laws. The Secretary promulgates this final rule under the broad authority to administer DHS, and the authorities provided under the Homeland Security Act of 2002, the immigration and nationality laws, and other delegated authority. Over the past twenty years, Congress and the Executive Branch have promoted the use of electronic transactions and electronic records when feasible instead of relying solely upon in-person or paper transactions. Under the Government Paperwork Elimination Act (GPEA), Public Law 105-277, tit. XVII, section 1703, 112 Stat. 2681, 2681-749 (Oct. 21, 1998), 44 U.S.C. 3504 note, federal agencies are required, when practicable, to provide the option of electronic maintenance, submission, or disclosure of information as a substitute for paper transactions. More recently, on June 28, 2019, the Office of Management and Budget (OMB) and the National Archives and Records Administration (NARA) jointly issued a memorandum that encouraged agencies to consider cost-effective opportunities to transition related business processes to an electronic environment. <SU>2</SU> <FTREF/> Offering electronic processes in place of paper or in-person transactions has the benefits of making it “easier for the public to connect with the Federal Government, and apply for and receive services, improving customer satisfaction. Electronic records . . . reduce processing times and decrease the probability of lost or missing information . . . [and] . . . greatly improve agencies' ability to provide public access to Federal records, promoting transparency and accountability.” Executive Office of the President, <E T="03">Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations,</E> at 100 (June 2018). The GPEA establishes the means for the use and acceptance of electronic signatures (e-signatures). This rule will enhance the ability of U.S. Immigration and Customs Enforcement (ICE) to fully implement the GPEA. <FTNT> <SU>2</SU>  Office of Management and Budget, Transition to Electronic Records (OMB/NARA M-19-21) (June 28, 2019), <E T="03">https://www.archives.gov/files/records-mgmt/policy/m-19-21-transition-to-federal-records.pdf.</E> </FTNT> The Electronic Signatures in Global and National Commerce Act (E-SIGN Act), 15 U.S.C. 7001-7031, effective for most purposes on October 1, 2000, allows electronic records and signatures to be given the same effect as paper and ink documents. <E T="03">See</E> 15 U.S.C. 7001(a). The E-SIGN Act provides “legal parity” for electronic records with paper records, when the procedures an agency adopts for the creation, maintenance, and retention of electronic records comply with the Federal Records Act and NARA guidelines governing digitization of records. <SU>3</SU> <FTREF/> Except for records maintained by government agencies (other than contracts to which it is a party), the E-SIGN Act does not require any person to agree to use or accept electronic records. <E T="03">Id.</E> sec. 7001(b)(2); <E T="03">see also</E> 12 CFR 609.910(a) (noting that under the E-SIGN Act, “E-commerce is optional; all parties to a legally valid transaction must agree to the electronic use before it can be used”). <SU>4</SU> <FTREF/> ICE intends to comply with this requirement by obtaining consent from immigration bond sureties and obligors to send electronic notices. <FTNT> <SU>3</SU>  Robert A. Wittie & Jane K. Winn, <E T="03">Electronic Records and Signatures under the Federal E-Sign Legislation and the UETA,</E> 56 Bus. Law. 293, 314 (2000). </FTNT> <FTNT> <SU>4</SU>  The provisions of the E-SIGN Act are generally inapplicable to federal government agencies. <E T="03">See</E> 15 U.S.C. 7003(b)(1) (“The provisions of [E-SIGN Act] shall not apply to—(1) court orders or notices, or official court documents (including briefs, pleadings, and other writings) required to be executed in connection with court proceedings;”). The Office of Management and Budget (OMB) has concluded that based on the legislative history, Congress explicitly excluded governmental transactions from coverage under the E-SIGN Act. <E T="03">See</E> OMB Guidance on Implementing the Electronic Signatures in Global and National Commerce Act, M-00-15, Attachment at p.3., (September 2000), available at Memoranda 00-10—OMB Procedures and Guidance on Implementing the Government. The White House ( <E T="03">archives.gov</E> ) and ESIGN guidance.PDF ( <E T="03">archives.gov</E> ), updated by OMB M-04-04, E-Authentication Guidance for Federal Agencies (Dec. 16, 2003). Accordingly, although the electronic consent complies with E-SIGN requirements, such compliance is not required of DHS. </FTNT> The Secretary is charged with the administration and enforcement of laws relating to the immigration and naturalization of noncitizens and “shall . . . prescribe such forms of bond” as deemed necessary for carrying out the authority under the INA. <E T="03">See</E> INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3). Additionally, where a noncitizen is arrested on a warrant and detained pending a decision on removal from the United States, the Secretary may be authorized to “release [the noncitizen] on . . . (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by [the Secretary of Homeland Security].” INA 236(a)(2), 8 U.S.C. 1226(a)(2). Further, the Secretary “at any time may revoke a bond” authorized under INA 236(a)(2), re-arrest the noncitizen, and detain them. INA 236(b), 8 U.S.C. 1226(b). Under the terms and conditions provided in Form I-352, <E T="03">Immigration Bond,</E> “Federal law shall apply to the interpretation of the bond.” ICE and the Department of Justice (DOJ) approve several types of immigration bonds such as delivery bonds, 8 CFR 236.1(c)(10); voluntary departure bonds, 8 CFR 240.25(b), 8 CFR 1240.26(b)(3)(i), (c)(3)(i); and order of supervision bonds, 8 CFR 241.5(b). With respect to cash bonds, the Secretary delegated to the ICE Director the authority to “issue and execute detainers and warrants of arrest or removal, detain aliens, release aliens on bond and other appropriate conditions as provided by law. . . .”  <SU>5</SU> <FTREF/> With respect to surety bonds, the Secretary delegated to the ICE Director the “[a]uthority to approve surety bonds issued pursuant to the immigration laws, to determine whether such surety bonds have been breached, and to take appropriate action to protect the interests of the United States with respect to such surety bonds.”  <SU>6</SU> <FTREF/> <FTNT> <SU>5</SU>  DHS Delegation No. 7030.2, <E T="03">Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement,</E> ¶ 2(T) (signed Nov. 13, 2004) (effective Mar. 1, 2003), <E T="03">https://www.ice.gov/doclib/foia/policy/7030.2_DelegationAuthority_03.01.2003.pdf.</E> </FTNT> <FTNT> <SU>6</SU>  DHS Delegation No. 7030.2, <E T="03">supra</E> note 4, ¶ 2(U). In this context, “surety bonds” is used in the same manner as it is used in 8 CFR 103.6(b)(1) to include immigration bonds underwritten by a surety company or posted by an entity or individual who deposits cas ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 161k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━