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Amendment of the Regulatory Definition of Arriving Alien [63 FR 19382] [FR 23-98]
FEDERAL REGISTER CITE:
63 FR 19382
DATE OF PUBLICATION:
April 20, 1998
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 1
[INS Order No. 1868-97]
Amendment of the Regulatory Definition of Arriving Alien
Immigration and Naturalization Service, Justice.
Interim rule with request for comments.
This rule amends the Immigration and Naturalization Service (Service) regulations by changing the regulatory definition of an arriving alien. Under section 235(b)(1)(A)(i) of the Immigration and Nationality Act (Act), which was effective on April 1, 1997, certain arriving aliens are subject to expedited removal procedures. The existing regulatory definition of arriving alien includes parolees whose parole is terminated, without regard to the date of parole or the circumstances under which parole was grante
d. As a matter of policy, the Service has decided that it is appropriate to exempt from the new expedited removal procedures aliens who were paroled into the United States before April 1, 1997, as well as aliens who, either before or after April 1, 1997, return to the United States pursuant to a grant of advance parole that they applied for and obtained while physically present in and prior to their departure from the United States. This rule clarifies that these two types of parolees will not be subjected
to expedited removal.
: The interim rule is effective April 20, 1998.
: Written comments must be received on or before June 19, 1998.
Please submit written comments in triplicate to the:
Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS number 1868-97 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT:
Linda Loveless, Assistant Chief Inspector, Immigration and Naturalization Service, 425 I Street NW., Room 4064, Washington, DC 20536, telephone number (202) 616-7489.
The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. 104-208, which was enacted on September 30, 1996, created new expedited removal procedures for aliens attempting to enter the United States through fraud or misrepresentation or without proper documents. This provision was effective on April 1, 1997, and is applicable to aliens who are "arriving in the United States" as contained in section 235(b)(1)(A)(i) of the Act.
The existing regulatory definition of arriving alien includes parolees, starting that "[a]n arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act." Including certain parolees in the definition of arriving aliens is consistent with section 212(d)(5) of the Act, which states that "* * * such parole of such alien shall not be regarded as an admission of the alien and when the purpose of such parole shall, in the opinion of the Attorney General, have been served the alien shall fo
rthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Existing regulations on the termination of parole are also consistent with the classification of certain paroled aliens as arriving aliens, stating that "* * * he or she shall be restored to the status that he or she had at the time of parole." 8 CFR 212.5(d)(2)(i).
The definition as currently in effect, though consistent with the Act and prior regulations, encompasses certain groups not best regarded as arriving aliens for purposes of the applicability of expedited removal, such as aliens initially paroled before (often well before) the effective date of the expedited removal provisions, and aliens previously present in the United States (in some cases for long periods) who departed from and returned to the United States pursuant to advance parole. Because the Act doe
s not contain a definition of "arriving alien," it is left to the Attorney General to define the term in a manner that conforms with congressional intent as embodied in the Act. This rule clarifies that aliens who were paroled before April 1, 1997, and aliens who return to the United States pursuant to advance parole that they applied for and obtained while physically present in and prior to their departure from the United States, will not be subject to expedited removal when their parole is terminated.
This exception does not alter the legal status of these parolees; these paroled aliens remain applicants for admission as in the past.
This rule also amends the arriving alien definition by replacing the reference to an alien who "seeks admission to or transit through the United States" with a reference to an "applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry." The new language better conveys the intent of the definition, which is to delineate a particular segment of those aliens described in section 235(a)(1) of the Act,
which defines aliens deemed to be applicants for admission. The term "applicant for admission" is a term of art under the Act as revised by IIRIRA. Section 235(a)(1) of the Act makes clear that an alien coming from abroad to a port in the United States may be considered an applicant for admission regardless of whether he or she subjectively desires admission. To the extent that the word "seeks" in the existing § 1.1(q) suggests that an alien must have a subjective intent to gain admission in order to be an
arriving alien, it may be susceptible to interpretations that are not consistent with the statute. Replacing the term "seeks" in the arriving aliens definition with the term "coming or attempting to come" prevents the possibility of such confusion.
Finally, the rule removes the reference to 8 CFR part 235, which deals with inspection of persons applying for admission. This reference is not necessary and its removal will streamline the definition of arriving alien.
Good Cause Exception
This interim rule is effective on publication in the
although the Service invites post-promulgation comments
within a 60-day comment period and will address any such comments in a final rule. For the following reasons, the Service finds that good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) for implementing this rule as an interim rule without the prior notice and comment period ordinarily required under that provision. First, in certain respects, this rule simply clarifies issues that may appear ambiguous in the existing regulation defining arriving aliens. Second, to the extent that this rule substantively c
hanges Service regulations, it simply provides more advantageous treatment for the limited number of parolees involved by exempting them from expedited removal procedures. Early implementation will be advantageous to the intended beneficiaries of this rule. Therefore, it is unnecessary and contrary to the public interest to delay the implementation of this rule until after a notice and comment period.
Regulatory Flexibility Act
The Attorney General, in accordance with 5 U.S.C. 605(b) has reviewed this regulation and, by approving it, certifies that this rule will not have a significant impact on a substantial number of small entities because of the following factors: This rule makes two changes to the existing § 1.1(q). First, by changing the arriving alien definition to provide that the expedited removal provisions will not apply to aliens paroled into the United States prior to April 1 or pursuant to advance parole which the a
liens applied for and obtained in the United States, this rule simply provides that, where appropriate, a finite number of aliens will be subject to removal proceedings under section 240 of the Act, rather than to expedited removal under section 235(b)(1)(A)(i) of the Act. This change will not affect small entities. Second, this rule also changes the arriving alien definition to use language that is clearer and more consistent with the Act. This change does not alter the meaning of the regulation and does
not affect small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $ 100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation adopted herein 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 1
Administrative practice and procedures, Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, part 1 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 1 continues to read as follows:
8 U.S.C. 1101, 8 CFR part 2.
2. Section 1.1 is amended by revising paragraph (q) to read as follows:
§ 1.1 Definitions.
* * * * *
(q) The term
means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act, except that an alien who was paroled be
fore April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) of the Act.
* * * * *
February 13, 1998
Commissioner,Immigration and Naturalization Service.