NS Regulation on Grounds of Inadmissibility (11-23-98)

[Federal Register: November 23, 1998 (Volume 63, Number 225)]
[Rules and Regulations]
[Page 64626-64628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



22 CFR Part 40

[Public Notice 2910]

Visas: Grounds of Ineligibility

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Final rule.


SUMMARY: This rule finalizes the interim rule published December 29
1997 (62 FR 67564) and implements sections of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA added
new grounds of inadmissibility for: certain aliens who have not been
inoculated against infectious diseases designated by statute or by the
Advisory Committee for Immunization Practices (ACIP); aliens who have
been subject to certain civil penalties; alien student visa abusers;
aliens present in the United States without admission or parole; aliens
who fail to attend removal proceedings; unlawful alien voters; and
former citizens who renounced United States citizenship in order to
avoid paying taxes. Some of these sections also provide for waivers of
grounds of inadmissibility. The rule also incorporates in the
Department's regulations a delegation of authority from the Immigration
and Naturalization Service pertaining to waivers of inadmissibility
under the Immigration and Nationality Act. Finally, the rule makes a
technical correction. Generally, these rules are necessary to ensure
that consular officers properly enforce the above-mentioned grounds of
ineligibility when adjudicating visa applications.

EFFECTIVE DATES: The effective dates are as follows: for Secs. 40.11,
40.52, 40.66, 40.104, and 40.105 the effective date is September 30,
1996; for Sec. 40.67 the effective date is November 30, 1996; for
Secs. 40.61, 40.62, 40.91, 40.92, 40.93, the effective date is April 1,
1997; and for Sec. 40.22, the effective date is September 30, 1997.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and
Regulations Division, Visa Office, Room L603-C, SA-1, Washington, DC
20520-0106 (odomhe@sa1wpoa.us-state.gov).

SUPPLEMENTARY INFORMATION: The Department published an interim rule,
Public Notice 2666 at 62 FR 67564, December 29, 1997, with a request
for comments, for numerous sections of Title 22, Part 40 of the Code of
the Federal Regulations. The rules were primarily proposed to implement
provisions of the Illegal Immigration

[[Page 64627]]

Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208
(IIRIRA), though they also make a technical correction. The rules were
discussed in detail in Public Notice 2666, as were the Department's
reasons for the regulations. The rules incorporate changes to those
sections of Part 40 shown in the table below. A minor wording change
now will be made to Sec. 40.91(a).

   22 CFR part affected            Heading           IIRIRA section No.
Sec.  40.11...............  Medical Grounds of     Sec.  341
Sec.  40.22...............  Suspended Sentences..  Sec.  322
Sec.  40.52...............  Unqualified            N/A (typographic
                             Physicians.            correction)
Sec.  40.61...............  Aliens Present         Sec.  301
                             Without Admission or
Sec.  40.62...............  Failure to Attend      Sec.  301
                             Removal Proceedings.
Sec.  40.66...............  Aliens Subject of      Sec.  345
                             Civil Penalty.
Sec.  40.67...............  Student Visa Abusers.  Sec.  346
Sec.  40.91...............  Certain Aliens         Sec.  301
                             Previously Removed.
Sec.  40.92...............  Aliens Unlawfully      Sec.  301
Sec.  40.93...............  Aliens Unlawfully      Sec.  301
                             Present After
                             Previous Immigration
Sec.  40.104..............  Unlawful voters......  Sec.  347
Sec.  40.105..............  Former Citizens Who    Sec.  352
                             Citizenship to Avoid

Analysis of Comments

    The interim rules were published for comment at 62 FR 67564. The
commenting period was closed on February 27, 1998. The Department
received three timely comments in response to the interim rule. As the
interim rule contained numerous regulations, each commentator made a
variety of comments. Many of the comments received proposed
clarifications of terminology used in the published rules. Others asked
for specific changes in the regulations to meet perceived inadequacies.
    The Department received two comments regarding the waiver clause of
22 CFR 40.92(c). The commentators were concerned that the waiver
standards, as provided for in INA section 212(a)(9)(B)(v) lack
specificity and are therefore inadequate to assure proper visa
application adjudication. The Attorney General is responsible for the
approval of such waivers, and the INS has issued guidance as to
situations where visa applicants may qualify for a waiver (see 8 CFR
207.3(b)). The Department, and Consular Officers more specifically, are
not participants in the Attorney General's decision to consent to an
alien's application for a waiver. Clarification of the waiver standards
in the Department's regulations, therefore, while ostensibly desirable,
would not be appropriate. The Department must defer to the Attorney
General for such standards.
    Similarly, two commentators remarked that the term `unlawfully
present' as used in 22 CFR 40.92 was inadequately defined. As above,
the Department must defer to the Attorney General, and more
specifically to the INS, to promulgate the regulations surrounding that
term. While awaiting such regulations, however, the Department, with
INS approval, issued interim guidance on April 4, 1998, to aid posts in
making determinations of unlawful presence. At such time as regulations
are put forward by INS, the Department will provide further guidance as
    Regarding 22 CFR 40.104, Unlawful Voters, one comment suggested
that a ``good faith error exception'' for an alien who votes illegally
should be added. This comment stemmed from the sometimes confusing
circumstances surrounding who is eligible to vote in certain elections.
For example, noncitizens may be eligible to vote in some local school
board elections. As the laws of the several states address this problem
differently, however, it would be impractical to attempt to cover all
situations in the Department's regulations. Instead, the Department's
guidance on the subject will reflect that, to the extent that the
constitutional provision, statute, regulation, or ordinance in question
provides that violations occur only as the result of knowing acts, an
alien will not be held ineligible if the alien establishes to the
satisfaction of the Consular Officer that the alien did not knowingly
violate the provision, statute, regulation or ordinance.
    With respect to 22 CFR 40.62, Failure to Attend Removal
Proceedings, one commentator expressed a concern with the lack of
specificity surrounding the term ``reasonable cause.'' Owing to the
gravity of the sanctions for a failure to attend removal proceedings,
the commentator argued, a more illuminating definition of ``reasonable
cause'' should be put forward. While the commentator's concern is well
founded, the term ``reasonable cause'' is not without interpretation.
The Board of Immigration Appeals (BIA) has decided many cases giving
guidance to the meaning of this term (see, e.g., Matter of Rivera, 19
I&N Dec. 688, Matter of Patel, 19 I&N Dec. 260N (aff'd Patel v. I.N.S.,
803 F.2d 804 (5th Cir. 1986)); Matter of Marallag, 13 I&N Dec. 775;
Matter of Haim 19 I&N Dec. 641N; Matter of Ruiz 20 I&N Dec. 91). With
such a foundation, in those instances where a Consular Officer will
have to make a ``reasonable cause'' determination, his/her decision
will be informed to the extent possible by BIA decisions. Further, the
Consular Officer will rely on interpretive material provided to him or
her both in the Foreign Affairs Manual and other sources. With this
guidance, therefore, the Consular Officer will be well informed and
will be in the best position to exercise discretion to make such a
determination. Any further explication of the term in the CFR may
interfere with and confuse those efforts.
    Several comments focused on the interim regulations' effect on the
Violence Against Women's Act of 1994 (VAWA). Particularly, the
commentators noted that the regulation and the preamble thereto were
unclear as to the interpretation of IIRIRA 301(c)(2), which exempts any
battered spouse or child who otherwise qualifies as a self-petitioner
and who first arrived in the United States before April 1, 1997 from
having to demonstrate a ``substantial connection'' between the
battering or extreme cruelty and the applicant's unlawful entry into
the United States. According to IIRIRA, these applicants need only show
that they qualify under the VAWA provisions, which is accomplished if
the applicant has an approved petition from INS. This is an important
distinction that will be brought to consular officers' attention
through the interpretive materials of the

[[Page 64628]]

Foreign Affairs Manual associated with aliens unlawfully present and
also through future changes to the regulations associated with the
immediate relative visa categories.
    Finally, one commentator expressed a concern that a battered spouse
who has to leave the country may face protracted delays in his or her
visa processing if the Consular Officer ``readjudicates'' the INS
approved petition that is part of the application. While the concern of
the commentator is appreciated, such petitions for battered spouses
must be treated in accord with other petitions used by applicants. To
that end, 22 CFR 42.41 states that a Consular Officer is authorized to
grant the status requested upon receipt of an approved petition, but
that the applicant still has ``the burden of establishing to the
satisfaction of the Consular Officer that the [applicant] is eligible
in all respects to receive a visa.'' The Consular Officer will not
readjudicate the petition, therefore, but still must consider and
report to INS any information which leads the Consular Officer to
believe that the petition was approved in error.

Final Rule

    This rule is not expected to have a significant impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. This rule imposes no reporting or
recordkeeping action from the public requiring the approval of the
Office and Management and Budget under the Paperwork Reduction Act
requirements. This rule has been reviewed as required by E.O. 12778 and
certified to be in compliance therewith. This rule is exempted from
E.O. 12866 but has been coordinated with INS and reviewed to ensure
consistency therewith.

List of Subjects in 22 CFR Part 40

    Aliens, Immigrants, Immigration, Nonimmigrants, Passports and
    In view of the foregoing, the interim rule amending 22 CFR 40 which
was published at 62 FR 67564 on December 29, 1997, is adopted as a
final rule with the following change:


    1. The authority citation for Part 40 continues to read as follows:

    Authority: 8 U.S.C. 1104, Pub. L. 104-208, 110 Stat. 3009, 22
U.S.C. 26512.

    2. Section 4091(a) is revised as follows:

Sec. 40.91  Certain aliens previously removed.

    (a) 5-year bar. An alien who has been found inadmissible, whether
as a result of a summary determination of inadmissibility at the port
of entry under INA 235(b)(1) or of a finding of inadmissibility
resulting from proceedings under INA 240 initiated upon the alien's
arrival in the United States, shall be ineligible for a visa under INA
212(a)(9)(A)(i) for 5 years following such alien's first removal from
the United States.
* * * * *
    Dated: October 5, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-30858 Filed 11-20-98; 8:45 am]



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