Executive Office for Immigration Review; Citizenship Requirement for Employment [60 FR 29467][FR 2-95]

DOCUMENT NUMBER: FR 2-95

FEDERAL REGISTER CITE: 60 FR 29467

DATE PUBLISHED: June 5, 1995

BILLING CODE 4410-01-M

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 3

[EOIR No. 101F; AG Order No. 1970-95]

RIN 1125-AA05

Executive Office of Immigration Review; Citizenship

Requirement for Employment

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule requires that employees hired by the Executive Office for Immigration Review (EOIR or Agency) be citizens of the United States of America. This rule exempts EOIR from the Immigration Reform and Control Act of 1986's general prohibition of discrimination based on citizenship status and supplements E.O. 11935, which requires United States citizenship for almost all Federal employees in the competitive service.

EFFECTIVE DATE: July 5, 1995.

FOR FURTHER INFORMATION CONTACT: Gerald S. Hurwitz, Counsel to the Director, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, Telephone: (703) 305-0470.

SUPPLEMENTARY INFORMATION: The Department of Justice published a proposed rule on October 27, 1994 (59 FR 53946) in order to exempt the Executive Office for Immigration Review (EOIR) from the general rule of the Immigration Reform and Control Act of 1986, 8 U.S.C. 1324b(a)(1) (IRCA), by invoking IRCA's provision for regulatory exception to the general rule, 8 U.S.C. 1324b(a)(2)(C). The proposed rule is corollary to E.O. 11935, 41 FR 37301 (1976), which requires United States citizenship for almost all Federal employees in the comp etitive service. The Agency did not receive any timely

comments. One comment was received well after the closing date.

The rule authorizes EOIR to require its employees and volunteers to be citizens of the United States of America. This rule will affect EOIR employees such as Immigration Judges, Board Members of the Board of Immigration Appeals and their legal staffs. The primary mission of these employees is to adjudicate or to facilitate the adjudication of immigration-related cases. Such Agency employees and volunteers often have access to sensitive information and handle complex and sensitive immigration issues. Fur thermore, the citizenship requirement is designed to bolster public confidence in the proper administration of the country's immigration laws. It is imperative that individuals who work at EOIR, either as employees or volunteers, demonstrate their allegiance to the United States by being able to document that they are United States citizens.

Pursuant to E.O. 11935, 41 FR 37301 (1976), the Executive Branch requires United States citizenship for employees hired in the competitive service. This rule extends the citizenship requirement to all EOIR employees and volunteers. The rule exempts EOIR from the prohibition of discrimination based on citizenship status, pursuant to the procedures established by IRCA. This Attorney General rule is consistent with E.O. 11935. The rule is an exercise of the Attorney General's authority to regulate the empl oyment of sensitive, non-competitive service Department of Justice employees.

Additionally, this rule allows the Agency to exercise its discretion to hire non-citizens when necessary to accomplish the Agency's mission. For example, this rule would permit the Director of the Agency to authorize hiring an interpreter skilled in the English language and an unusual foreign language when a United States citizen interpreter is not available.

This rule draws on well-established Supreme Court jurisprudence upholding the reservation of certain rights, such as the right to govern, to citizens. Foley v. Connelie, 435 U.S. 291 (1978) (affirming a requirement that police officers be citizens based on the precept that "[t]he act of becoming a citizen is more than a ritual * * * [The citizen] is entitled to participate in the process of democratic decisionmaking. Id. at 295)"). See also Ambach v. Norwick, 441 U.S. 68 (1979) (affirming a citizenship re quirement for public school teachers). The Supreme Court recognized that a citizenship employment requirement is sometimes necessary in Bernal v. Fainter, 467 U.S. 216 (1984), holding that, "[s]ome public positions are so closely bound up with the formulation and implementation of self-government that the State is permitted to exclude from those positions persons outside the political community, hence persons who have not become part of the process of democratic self-determination." Id., at 221. The Berna l court relied on an earlier Supreme Court case which held inter alia, "Aliens are by definition those outside this [political] community." Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).

The untimely comment received by the Agency objects to the rule on three grounds. The comment states that: (1) The rule is unconstitutional because Article III of the United States Constitution does not require Article III judges to be citizens; (2) the rule contravenes case law; and (3) the rule lacks a rational basis.

After careful consideration of the comment, the Agency has decided not to follow the comment's suggestion that the rule be withdrawn or modified. The final rule retains the language of the proposed rule for the following reasons:

(1) The absence of a citizenship requirement for Article III judges cannot be understood as a constitutional prohibition against a citizenship requirement for Executive Branch immigration judges.

(2) These cases do not persuade the Agency that the rule needs modification. Three of the four cited cases pre-date IRCA but, even considered on the merits, these cases do not persuade the Agency that it needs to modify this rule. The three pre-IRCA cases cited are: Bernal v. Fainter, 467 U.S. 216 (1984) (strict scrutiny standards applies to state law distinction based on alienage except when laws exclude aliens from positions closely related to processes of democratic government); Hampton v. Mow S un Wong, 426 U.S. 88 (1976) (rule imposing wholesale ban on aliens throughout the federal civil service was not justified by reasons within the authority of the Civil Service Commission to advance); and In Re Griffiths, 413 U.S. 717, 724 (1973) (Connecticut's prohibition on aliens sitting for the bar violates equal protection because the authority of attorneys does not "involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens," nor does practice of law offer "meaningful opportunities adversely to affect the interest of the United States").

The comment's reliance on Bernal versus Fainter is misplaced. As discussed above, the Bernal decision expressly states that it is appropriate to exclude non-citizens from some government employment. 467 U.S. at 221.

The comment's analysis of Hampton versus Mow Sun Wong is not persuasive either. At issue in Hampton was a Civil Service Commission regulation requiring civil servants to be United States citizens. Hampton held that a federal executive agency could discriminate on the basis of citizenship where there is a legitimate national interest for such discrimination. The Hampton court found that the rule at issue did not meet the legitimate national interest standard and therefore held the rule unconstitutional. I n contrast to the Civil Service Commission's rule, the EOIR rule meets the Hampton standard. The national interest is served by ensuring that individuals who are involved in the adjudication of immigration-related cases are citizens. It is also noteworthy that subsequent to judicial invalidation of the Civil Service Commission rule requiring citizenship in Hampton, the identical requirement was put into place by Executive Order. E.O. 11935, 41 FR 37301 (1976). The restriction barring noncitizens from emp loyment in the federal competitive civil service, as authorized by the Executive Order, is still in effect.

In Re Griffiths is inapposite to this rulemaking. Griffiths examined whether a state had the authority to ban non-citizens from the practice of law. In finding that such a ban violated the Equal Protection Clause of the Fourteenth Amendment, the Court found that the state had not meet its burden of showing that the classification was necessary to promote or safeguard the state's interest in the qualifications of those admitted to the practice of law. 413 U.S. at 724-727. The practice of law, the Court fo und, does not involve matters of state policy or acts of such unique responsibility as to entrust them only to citizens. Furthermore, as stated in the decision, the practice of law does not offer meaningful opportunities adversely to affect the interest of the United States. Id. at 724. In contrast, EOIR employment frequently involves federal immigration matters which can impact national policy and affect the interest of the United States. Therefore, EOIR employment should be held exclusively by United St ates citizens.

The fourth case cited by the comment, City of Orlando v. Florida, 751 F. Supp. 974 (M.D. Fla. 1990), is also factually inapposite to this rulemaking. Orlando struck down that part of the state's loyalty oath requiring an affirmation of citizenship. Nonetheless, the Orlando court expressly held that, "this ruling does not mean that the State cannot require citizenship of Florida and/or the United States in certain classes of employment; rather, it means only that citizenship cannot be a prerequisite to taki ng the loyalty oath given to all employees and officers of the State of Florida. * * *" City of Orlando v. Florida, 751 F. Supp. at 976. Since this rule does not require a loyalty oath, the narrow holding of City of Orlando does not inform this rulemaking.

(3) The rule has a rationale, namely that individuals adjudicating, or assisting in the adjudication of, immigration laws should be able to demonstrate allegiance to this country by virtue of their citizenship, as addressed in more detail in other portions of the supplementary information.

Insertion of this rule requires a slight reorganization of 8 CFR Part 3.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that this rule will not have a significant adverse economic impact on a substantial number of small entities. 5 U.S.C. 605(b).

This rule has been drafted and reviewed in accordance with E.O. 12866, section 1(b), Principles of Regulation. The Attorney General has determined that this rule is not a "significant regulatory action" under E.O. 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

List of Subjects in 8 CFR Part 3

Administrative practice and procedure, Immigration, Organization and functions (Government agencies).

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 of title 8 is revised to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002.

2. Section 3.0 is amended by designating its existing text as paragraph (a), and adding a heading, and by adding paragraph (b) to read as follows:

Sec. 3.0 Executive Office for Immigration Review.

(a) Organization . * * *

(b) Citizenship Requirement for Employment . (1) An application to work at the Executive Office for Immigration Review (EOIR or Agency), either as an employee or as a volunteer, must include a signed affirmation from the applicant that he or she is a citizen of the United States of America. Upon the Agency's request, the applicant must document United States citizenship.

(2) The Director of EOIR may, by explicit written determination and to the extent permitted by law, authorize the appointment of an alien to an Agency position when necessary to accomplish the work of EOIR.

May 23, 1995 _________________ Dated:

Signed _______________________________ Janet Reno, Attorney General