Waiver of Inadmissibility for Certain Applicants for Admission as Permanent Residents [63 FR 39217] [FR 54-98]

DOCUMENT NUMBER: FR 54-98

FEDERAL REGISTER CITE: 63 FR 39217

DATE OF PUBLICATION: July 22, 1998

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 211

[INS No. 1920-98]

RIN 1115-AE47

Waiver of Inadmissibility for Certain Applicants for Admission as

Permanent Residents

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This rule makes a technical correction to the Immigration and Naturalization Service (Service) regulations that govern the documentary requirements for immigrants and corresponding waivers. The regulations at 8 CFR 211.1(b)(3) permit District Directors, in individual cases, to waive the inadmissibility of aliens seeking admission for permanent residence or as returning residents who fail to present the appropriate travel documents. This rule will clarify that aliens granted waivers pursuant to 8 CFR 211.1 (b)(3) are not exempt from the visa requirement, and that carriers remain liable for fines imposed under section 273(a) of the Act for bring these aliens to the United States, even if the District Director grants a waiver of inadmissibility to the alien at the time of admission into the United States as a returning resident. This change is necessary to conform the language of the regulations with the statutory authority which exists to impose a fine when an alien is transported to the United States without the proper docu mentation.

DATES: This rule is effective July 22, 1998.

FOR FURTHER INFORMATION CONTACT: Una Brien, Immigration and Naturalization Service, 1400 Wilson Blvd., Suite 210, Arlington, Virginia 22209, telephone (202) 305-7018.

SUPPLEMENTARY INFORMATION: Section 273 of the Immigration and Nationality Act (the Act) imposes a fine on any carrier who brings to the United States any alien who lacks the passport or visa required by law. Section 211(b) of the Act permits the Attorney General to waive the inadmissibility of aliens seeking admission as returning residents who lack the necessary travel documents. Under the jurisprudence developed by the Board of Immigration Appeals (BIA), whether granting a waiver of inadmissibility relieves the carrier of liability for a fine depends on how the regu lation governing the exercise of this waiver authority is written. See e.g., Matter of "Flight SR-4 ", 10 I&N Dec. 197 (BIA 1963). The BIA has treated regulations that provide for a "blanket" waiver as also relieving the carrier of fine liability. The carrier remains liable, however, if the regulations provide for waivers only in individual cases. See Matter of Plane "CUT-604" , 7 I&N Dec. 701, 702 (BIA 1958) citing Matter of PAA Plane "Flight 204" , 6 I&N Dec. 810 (BIA 1955).

On March 22, 1996, the Service published a final rule in the Federal Register at 61 FR 11717, which amended the regulations governing granting waivers of inadmissibility to nonimmigrants. The purpose of the amendment was to ensure that when the Service grants a waiver of inadmissibility, the carrier is not relieved from fine liability. On September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, which required the Service to amend major portions of its regulations. On January 3, 1997, the Service published a proposed rule in the Federal Register , at 62 FR 444, and a subsequent interim rule on March 6, 1997, at 62 FR 10312, implementing the provisions of Pub. L. 104-208.

In addition, the proposed and interim rules also restructured major portions of 8 CFR, including part 211 to make it easier to understand. However, as contained in the proposed and interim rule, the exceptions to the visa documentary requirements referenced in Section 211.1(a) should have been limited to those circumstances listed in "paragraph (b)(1)" and not all of "paragraph (b)." The classes of aliens listed in section 211.1(b)(1), e.g., a child born after the issuance of an immigrant visa to the child 's accompanying parent or a child born during the temporary visit abroad of a mother who is a lawful permanent resident or a national of the United States, are identical to those specifically excepted from the visa documentary requirement prior to the restructuring of the regulation. See 8 CFR 211.1(a) (1997). The erroneous reference to "paragraph (b)" may mislead some readers into thinking that returning lawful permanent residents who apply for and are granted a waiver of the visa requirement on a case by case basis, i.e., the class of aliens described in 8 CFR 211.1(b)(3), are exempt from presenting entry documents and, by extension, that a carrier which transports such as alien to the United States no longer incurs liability under section 273(b) of the Act. This ambiguity in the meaning of the interim rule was the result of an administrative oversight rather than a deliberate policy decision.

Accordingly, this final rule amends § 211.1(a) to revise the reference to "paragraph (b)" to read "paragraph (b)(1)". This is intended to clarify, once again, that a waiver of inadmissibility does not relieve the carrier of fine liability for carrying an alien passenger without the required documents.

Good Cause Exception

The amendment made by this rule corrects an inadvertent error which was included in a proposed rule published by the Service in the Federal Register on January 3, 1997, at 62 FR 444, and in the subsequent interim rule published in the Federal Register on March 6, 1997, at 62 FR 10312. As stated in the supplemental portion of the proposed rule, 62 FR 452, the Service was engaged in a comprehensive review of all of its regulations in an effort to reduce them and make them more readable and understandable. It was the Service's intention to restructure 8 CFR part 211 to make it easier to comprehend. It was never the Service's intention to undermine the Se rvice's ability to impose fines for violations under section 273 of the Act. Although the Service intended to correct this technical error when a final rule was published, the Service believes that good cause exists to issue a separate final rule to amend § 211.1(a) to correct the error immediately. This rule has been published as a proposed and interim rule as part of a larger rule with opportunity for public comment, therefore, it is unnecessary to issue it now as a proposed rule.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commissioner has reviewed this regulation, and by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities, as defined by 5 U.S.C. 601(6). This rule merely removes any ambiguity between the current regulations and section 273 of the Act by correcting an inadvertent error in its regulations that is addressed in the supplemental portion of this final rule.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, or by the private sector, of $ 100 million or more, in the aggregate, in any one year, and it will not significantly or uniquely affect small governments. Therefore, the Commissioner determined that no actions were 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 Fairness 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 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 rule adopted herein will not have substantial direct effects on the States, on the relationship between the Federal 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 final 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 211

Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.

Accordingly, part 211 of chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 211-DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS

1. The authority citation for part 211 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8 CFR part 2.

§ 211.1 [Amended]

2. In § 211.1 paragraph (a) introductory text is amended by revising the reference to "paragraph (b)" to read "paragraph (b)(1)".

May 26, 1998 _________________ Dated:

Signed _______________________________ Doris Meissner, Commissioner,Immigration and Naturalization Service.