[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] [DOCID:fr23no98-16] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF STATE 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 (firstname.lastname@example.org). 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 Ineligibility. 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 Parole. 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 Present. Sec. 40.93............... Aliens Unlawfully Sec. 301 Present After Previous Immigration Violations. Sec. 40.104.............. Unlawful voters...... Sec. 347 Sec. 40.105.............. Former Citizens Who Sec. 352 Renounced Citizenship to Avoid Taxation. ------------------------------------------------------------------------ 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 appropriate. 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 visas. 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: PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED 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] BILLING CODE 4710-06-P
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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