Adjustment of Status for Certain Nationals of Haiti [65FR15835] [FR14-00]

DOCUMENT NUMBER: FR 14-00

FEDERAL REGISTER: 65 FR 15835

DATE OF PUBLICATION: March 24, 2000

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 212, 240, 245, 274a, and 299

[INS No. 1963-98; AG Order No. 2294-2000]

RIN 1115-AF33

Adjustment of Status for Certain Nationals of Haiti

AGENCY: Immigration and Naturalization Service, Justice, and Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This rule implements section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) by establishing procedures for certain nationals of Haiti who have been residing in the United States to become lawful permanent residents of this country. This rule allows them to obtain lawful permanent resident status without applying for an immigrant visa at a United States consulate abroad and waives many of the usual requirements for this benefit.

DATES: This final rule is effective March 24, 2000.

FOR FURTHER INFORMATION CONTACT: For matters relating to the Immigration and Naturalization Service: Suzy Nguyen, Adjudications Officer, Office of Adjudications, Immigration and Naturalization Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-5014. For matters relating to the Executive Office forImmigration Review: Chuck Adkins-Blanch, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041, telephone (703)305-0470.

SUPPLEMENTARY INFORMATION:

What are the Basic Provisions of Section 902 of HRIFA and the Interim Regulations Published on May 12, 1999?

On October 21, 1998, the President signed into law a Fiscal Year 1999 Omnibus Appropriations Act, Public Law 105-277 (112 Stat. 2681). Division A, title IX of that statute, the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), contained a provision, section 902, that allows certain nationals of Haiti to adjust their status to that of lawful permanent resident. On May 12, 1999, the Department of Justice (Department) published an interim rule, with requests for comments, that implemented section 902 o f HRIFA. See 64 FR 25756.

Section 902 of HRIFA provides that the Attorney General shall adjust the status of certain Haitian nationals who are physically present in the United States to that of lawful permanent resident. In order to be eligible for benefits under HRIFA, an applicant must:· Be a national of Haiti who was present in the United States on December 31, 1995;

· Have been physically present in the United States for a continuous period beginning not later than December 31, 1995, and ending not earlier than the date the application for adjustment is filed (not including any absence or absences amounting to 180 days or less in the aggregate);

· Properly file an application for adjustment before April 1, 2000;

· Be admissible to the United States under all provisions of section 212(a) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1182(a), except those provisions specifically excepted by HRIFA; and

· Fall within one of the five classes of persons described in section 902(b)(1) of HRIFA.

The five classes described in section 902(b)(1) of HRIFA are:

(1) Haitian nationals who filed for asylum before December 31, 1995;

(2) Haitian nationals who were paroled into the United States prior to December 31, 1995, after having been identified as having a credible fear of persecution, or paroled for emergent reasons or reasons deemed strictly in the public interest;

(3) Haitian national children who arrived in the United States without parents and have remained without parents in the United States since such arrival;

(4) Haitian national children who became orphaned subsequent to arrival in the United States; and

(5) Haitian children who were abandoned by their parents or guardians prior to April 1, 1998, and have remained abandoned since such abandonment.

How Many Comments Were Received from Interested Parties in Response to the Interim Rule?

A total of 46 comments were received during the comment period. Commenters included Members of Congress, the mayor of a major city, representatives of a number of nongovernmental organizations, private attorneys, and other interested individuals. The Department appreciates the contributions of all individuals and groups who submitted comments.

What Comments Were Submitted and how is the Regulation Being Changed as a Result?

The issues raised by the commenters generally fell into 17 areas:

1. Issues Pertaining to Eligibility Under the Statute, but not Related to Immigrant Visa Waivers

A number of commenters requested that the Department extend the time period for submission of applications by principal applicants beyond the March 31, 2000, deadline set by statute. Such action would require new legislation, as it is clearly beyond the rulemaking authority of the Department.

Other commenters, recognizing that such change would exceed the Department's authority, requested that the Department not reject any applications as improperly filed during the final 30 days of the filing period because of a lack of documentation to establish eligibility. In light of the relatively short filing period, the Department finds this suggestion to be both reasonable and within its rulemaking authority. Accordingly, 8 CFR 245.15(c)(2) has been revised to provide that an Application to Register Per manent Residence or Adjust Status (Form I-485) submitted to either the Nebraska Service Center or the Immigration Court by a principal applicant seeking adjustment of status under HRIFA will not be rejected as improperly filed as long as it has been properly completed and signed by the applicant, identifies the applicant as a HRIFA principal applicant, and is accompanied by either the correct fee or a request for a fee waiver.

Some commenters felt that any Haitian who entered the United States prior to December 31, 1995, or who has been living in the United States since December 31, 1995, and any family members of such an individual, should be allowed to adjust his or her status to that of permanent resident. Although the Department understands the desire of the commenters to have the benefits of permanent residence extended to as many persons as possible, the suggestion is contrary to the statute, which requires that principal a pplicants fall within one of the five categories set forth above, be admissible to the United States, and meet all other statutory requirements. Accordingly, this suggestion cannot be adopted.

Some commenters wanted the regulations to provide that upon being granted lawful permanent residence, any HRIFA applicants who arrived in the United States after being paroled from the U.S. Naval Base at Guantanamo Bay, Cuba (Guantanamo Bay), would immediately become eligible to apply for United States citizenship. This suggestion cannot be adopted because the Act specifically requires an alien to reside in the United States for a specific period “after being lawfully admitted for permanent residence.” See Sec. 316(a)(1) of the Act, 8 U.S.C. 1427(a)(1). In the rare instances in which the Immigration and Naturalization Service (Service or INS) has recorded the date of admission for permanent residence as other than the actual date the application for such status was granted, it has only done so in accordance with explicit statutory authority.

Some commenters suggested that the regulations provide that any Haitian national who entered the United States prior to December 31, 1995, and who applied for asylum prior to December 31, 1997, should be eligible for adjustment under HRIFA. This suggestion is contrary to statute and beyond the rulemaking authority of the Department; it therefore cannot be adopted.

Finally, some commenters suggested that any asylum application that was mailed to the Service by December 31, 1995, but rejected as not properly filed, be considered to have been timely filed for HRIFA purposes. Congress could have opened the category to those who “filed or attempted to file” the application, or more simply to those who “submitted” the application. Instead, Congress required that the applicant have “filed for asylum before December 31, 1995,” in order to fall thin this category. Accordingly , the Department will consider only those asylum applications that were properly filed by the deadline established by statute. The Service’s long-standing regulation, 8 CFR 103.2(a)(7), which concerns the proper filing of petitions, will not be revised. The suggestion will not be adopted.

2. Issues Pertaining to Eligibility Under the Statute and Related to Immigrant Visa Waivers

A number of commenters suggested that the Department either automatically waive those grounds of inadmissibility relating to medical conditions (especially HIV/AIDS infection) and fraud violations, or provide a more generous waiver provision such as that accorded to refugees and asylees adjusting status to lawful permanent residence under section 209 of the Act. 8 U.S.C. 158.

Section 902(a)(1)(B) of HRIFA states that, in order for the Attorney General to grant permanent residence under HRIFA, the applicant must be admissible to the United States. The specific grounds under which an alien may be found inadmissible to the United States are set forth in section 212(a) of the Act. 8 U.S.C. 1182(a). While HRIFA provides that five of these specific grounds of inadmissibility shall not apply to HRIFA applicants, it does not exempt them from the grounds pertaining to either inadmissibil ity under medical grounds, which is discussed in section 212(a)(1)(A), 8 U.S.C. 1182(a)(1)(A), or inadmissibility under grounds pertaining to misrepresentation, which is discussed in section 212(a)(6)(C), 8 U.S.C. 1182(a)(1)(C). Without statutory authority to waive grounds of inadmissibility, the Attorney General may not grant permanent residence to an inadmissible alien.

The statutory authority to grant waivers of medical grounds of inadmissibility is contained in section 212(g) of the Act, 8 U.S.C. 1182(g), and the authority to grant waivers of grounds of inadmissibility pertaining to misrepresentation is contained in section 212(i) of the Act. 8 U.S.C. 1182(i). Both of these sections set forth waiver eligibility criteria mandating that, among other things, the applicant have a qualifying relative who is a citizen or lawful permanent resident of the United States. Unfortun ately, many HRIFA applicants who are inadmissible under section 212(a)(1) or section 212(a)(6)(C) of the Act do not have such qualifying relatives, and are therefore ineligible for these waivers.

Some commenters suggest that the authority contained in section 209 of the Act, 8 U.S.C. 1159, enables the Department to grant waivers of inadmissibility to HRIFA applicants. In so doing, a number of them quote a portion of paragraph (c) of that section. The entire paragraph provides:

(c) The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section [i.e., section 209 of the Act], and the Attorney General may waive any other provision of such section (other than paragraph (2)(C) or subparagraph (A), (B), (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

8 U.S.C. 1159(c) (emphasis added).

When read in its entirety, it is clear that the waiver provision contained in section 209(c) of the Act applies only to aliens who are adjusting status under that section, not to aliens applying for adjustment of status under other provision of law, including HRIFA. The Department does not have the statutory authority to make this change. Accordingly, this suggestion cannot be adopted.

3. Other Waiver Issues

An applicant who is able to meet the statutory requirements set forth in sections 212(g) and 212(i) of the Act for grounds of inadmissibility pertaining to a medical condition or to fraud or willful misrepresentation must also show that his or her case warrants approval as a matter of discretion. In exercising such discretionary authority, adjudicating officers and immigration judges must take into account all factors- whether positive and negative- bearing on the case, and determine which factors carry sig nificant weight and which do not.

A number of commenters have requested that in adjudicating the waiver application, the adjudicating officer or immigration judge take into account certain factors pertaining to the manner of the applicant’s arrival in the United States or to conditions in the applicant’s homeland. Specifically, commenters requested that for persons who were paroled into the United States from Guantanamo Bay for the purpose of receiving treatment of an HIV or AIDS condition, the fact that their arrival in the United States w as the direct result of a government decision to provide such treatment should be viewed as a significant positive factor. Likewise, with regard to those applicants who used counterfeit documents to travel from Haiti to the United States, many commenters asked that the Department take into consideration the general lawlessness and corruption that was widespread in Haiti at the time of the alien’s departure, the difficulties in obtaining legitimate departure documents at that time, and other factors peculiar to Haiti during that period that may have induced the alien to commit fraud or make willful misrepresentations. Although these factors would probably have been taken into account by the adjudicating officer or immigration judge regardless of the inclusion or exclusion of any specific language in the regulations, the Department feels that the inclusion of such language in the final rule will facilitate a general understanding of the importance of these factors in making the discretionary decision, and the s uggestion has been adopted.