DOCUMENT NUMBER: FR 40-02

FEDERAL REGISTER CITE: 67 FR 52584

DATE OF PUBLICATION: August 12, 2002

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 264

[INS No. 2216-02; AG Order No. 2608-2002]

RIN 1115-AG70

Registration and Monitoring of Certain Nonimmigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: Recent terrorist incidents have underscored the need to broaden the special registration requirements for nonimmigrant aliens from certain designated countries, and other nonimmigrant aliens whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals to ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay. On June 13, 2002, the Depar tment published a proposed rule to modify the regulations to require certain nonimmigrant aliens to make specific reports to the Immigration and Naturalization Service: upon arrival; approximately 30 days after arrival; every twelve months after arrival; upon certain events, such as a change of address, employment, or school; and at the time they leave the United States. This final rule adopts the proposed rule without substantial change.

DATES: This rule is effective September 11, 2002.

FOR FURTHER INFORMATION CONTACT: Dan Brown, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION:

Introduction

This final rule applies to only a small percentage of the more than 35 million nonimmigrant aliens who enter the United States each year: (1) Nonimmigrant aliens from selected countries specified in notices published in the Federal Register , and (2) individual nonimmigrant aliens who are designated by a consular officer outside the United States or an inspection officer at the port of entry based on information that indicates the need for closer monitoring of the alien's compliance with the terms of his or her visa or admission because of the national security or law enforcement interests of the United States. This rule expands the existing special registration rule to require that these designated nonimmigrant aliens provide more detailed an d frequent information to ensure that they comply with the conditions of their visas and admissions, along with leaving the United States.

Adoption of the Proposed Rule Without Substantial Change

The Department received 14 comments on the proposed rule (67 FR 40581, June 13, 2002). Some comments supported the adoption of the proposed rule while other comments opposed the proposed rule. In several instances, specific comments repeated the views of other comments in a different form. Rather than respond to each comment individually, the Department is responding to the nature of the comments by subject matter.

    In adopting the proposed rule as a final rule, the Department reiterates and adopts the Supplementary Information included in the proposed rule as explaining the final rule. The Department has made one set of changes in the final rule to reflect the fact that the special registration system will be paperless; the Department will not be developing a paper form to collect information. The second set of changes clarifies and limits the scope and applicability of 8 CFR 264.1(f)(8). The Department provides the f ollowing additional information in responding to the comments received.

Response to Comments Received

A. Constitutional Implications

1. Notice of the Requirements of the Rule

Several commenters argued that the notice requirement for nonimmigrant aliens subject to special registration who are already residing in the United States violates their due process rights. One commenter suggested that there needed to be a more formal notification structure developed before provisions relating to nonimmigrant aliens subject to special registration already in the United States could be enforced because the proposal affects such a small segment of society. The commenter argued that these ind ividuals should be given some other way to voice their opinions other than the notice and comment period, citing Londoner v. City & County of Denver, 210 U.S. 373 (1908), and the notion that due process requires that they be given an individualized hearing. The commenter argues that those individuals, with limited English proficiency or literacy, are not being given adequate notice and that the opportunity to be heard must be tailored to the regulated group. Another commenter suggested that publication in t he Federal Register as public notification of a requirement is a legal fiction.

    These comments raise an issue related to two different processes. First, the commenters appear to raise the issue of whether the publication of the proposed and final rule in the Federal Register is sufficient notice of the content and applicability of the regulation under the Due Process Clause of the Fifth Amendment to the United States Constitution. Second, the commenters appear to raise the issue of whether publication of a notice in the Federal Register, as required by § 264.1(f)(4), of the applicability of the requirements of this rule to a specific country or class, is sufficient notice of the application of the rule under the Due Process Clause.

    Such notice by publication in the Federal Register unequivocally constitutes sufficient notice for due process purposes. Congress has specified this form of notice and made that notice binding on all who are within the jurisdiction of the United States. 44 U.S.C. 1507 (publication in Federal Register “is sufficient to give notice of the contents of the document to a person subject to or affected by it”). The courts have clearly relied upon the adequacy of notice by publication in the Federal Register since the Federal Register's inception. See, e.g., Lyng v. Payne, 476 U.S. 926, 942-43 (1986); Dixson v. United States, 465 U.S. 482, 489 n.6 (1984); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). The Department rejects the notion that more notice is required as a matter of law.

    The Department does recognize that the efficacy of the law is more assured when those subject to the law have actual notice of its terms, and, accordingly, the Department is taking steps in addition to publication in the Federal Register to publicize its actions relating to immigration matters. When classes of nonimmigrant aliens already in the United States are required to present themselves for special registration, the Department expects to publicize such announcements in additional fora, beyond what is required by the Constitution and the laws of the United States. However, as a legal matter there is no question that one who is within the jurisdiction of the law of the United States, whether by statute or regulation, must comply with th e terms of the law. It is the individual's responsibility to know the law.

2. Notice of Violative Conduct

    One commenter argued that the proposed rule, in defining the special registration requirements and applying the Attorney General's interpretive authority to violations of the requirements as indicia of disregard for the laws of the United States and the potential for further violations, creates a new violation of the Immigration and Nationality Act (“INA” or “Act”) that would be both obscure and de minimis, based only on publicity by Federal Register notices rather than actual notice. The commenter suggests that this rule would provide the most technical and non-substantive bases by which individuals could be detained and eventually removed.

The Department disagrees. As noted above, all who are subject to the jurisdiction of the laws of the United States are required to abide by those laws. Notice of the laws by publication is sufficient notice under the Constitution.

3. Discrimination

Several commenters argued that the rule targets specific minority ethnic groups and members of a specific religion, i.e., Arabs and Muslims. The commenters noted that several individuals currently being detained or prosecuted would not have been covered by the specific criteria set forth in the proposed rule. One commenter in particular argued that the proposal “will further stigmatize innocent Arab and Muslim visitors * * * who have committed no crimes and pose no danger to us.”

    The Department disagrees with this analysis. There are several means by which an alien may become subject to special registration. First, as provided in the regulations being amended and in the final rule, the Attorney General may designate specific countries, the nationals and citizens of which are subject to special registration. Currently, nonimmigrant aliens from Iran, Iraq, Libya, and Sudan are subject to special registration requirements, including fingerprinting. 63 FR 39109 (July 21, 1998). Accordin gly, contrary to what some commenters appear to believe, this method is not new.

    Second, a specific alien may be subject to special registration if intelligence information indicates that the individual, while qualified for a visa, warrants closer attention. Pre-established criteria will be applied. These criteria will be based on intelligence regarding the activities and behavior patters of terrorist organizations, not on racial, ethnic, or religious stereotypes. The Department strongly disagrees with the implication that it would develop or apply such criteria in an invidious manner o n the basis of race, religion, or membership in a social group.

    The Department strongly disagrees with the premise of the comments that the rule is invidiously discriminatory. Congressional enactments and regulations concerning immigration have historically drawn distinctions on the basis of nationality and related criteria. The political branches of the government have plenary authority in the immigration area. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); Matthews v. Diaz, 476 U.S. 67, 80-82 (1976). In the context of immigration and nationality laws, the Supreme Court has particularly “underscore[d] the limited scope of judicial inquiry.” Fiallo, 430 U.S. at 792. The Supreme Court has stated that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens * * * [T]he power to expel or exclude aliens [i]s a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.

Id. (internal quotations and citations omitted). Congress's “inevitable process of `line drawing' “ in the immigration context is therefore given great deference. Id. at 795 n.6. The substantive decision to relax requirements for only specified nationals, while excluding all others, is among those political decisions that are “wholly outside the concern and competence of the Judiciary,” Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Frankfurter, J., concurring). When the Executive Branch exercises aut hority delegated by Congress in the immigration area, a court will not “look behind the exercise of that discretion.” See Fiallo, 430 U.S. at 794-95 (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). As in Fiallo, the Attorney General must here make compromises involving “the inevitable process of `line drawing,' “ [whereby] Congress has determined that certain classes of aliens are more likely than others to satisfy national objectives without undue cost, and [it] granted preferential status only to thos e classes.” Fiallo, 430 U.S. at 795 n.6. “Congress regularly makes rules that would be unacceptable if applied to citizens.” Mathews, 426 U.S. at 80. The distinctions drawn by the rule are appropriate in the context of immigration law and national security.

    The Department recognizes that a few individuals in the United States have questioned the loyalty of some Muslim Americans to the United States. The Department also recognizes that some American Muslims have been targets of discrimination. Some mosques have been damaged and desecrated. A number of Muslim Americans--and others wrongly believed to be Muslims--have been threatened or attacked. These attacks against Muslim Americans and the Muslim communities are not only reprehensible; like terrorism, they are also attacks against the United States and humanity. The Federal Bureau of Investigation (FBI) has investigated such attacks and threats against Arab, Muslim, and Sikh Americans. The FBI has initiated more than 360 investigations in concert with state and local law enforcement authorities. More than 100 individuals have already been charged with federal, state, and local crimes relating to such attacks. The Department continues to treat such crimes as civil rights violations and will vigorously prosecute t hese violations.

    The Department remains firmly committed to protecting the civil rights of all individuals in the United States while seeking to prevent acts of terrorism. The Department unequivocally rejects the notion that the requirements of the final rule, or the criteria for application of the final rule, to nonimmigrant aliens subject to special registration are, or are intended to be, invidiously discriminatory.

4. Applicability of the Act

    One commenter argued that the reporting structure for nonimmigrant aliens subject to special registration once they have arrived in the United States does not fully comply with the reporting structure formulated in the Act. This commenter believed that section 265 of the Act (8 U.S.C. 1305) continues to require that aliens report to the Attorney General, in writing, their current address before January 31st of every year and that certain aliens update this address every three months for the duration of the time that they remain in the United States. These provisions of the Act were modified in 1981 to eliminate the “January registration” and 3-month provisions. The amendments continued a 10-day notification of change of address requirement. Public Law 97-116, section 11, 95 Stat. 1617 (1981).

    As discussed in the proposed rule, section 262(a) of the Act (8 U.S.C. 1302(a)) provides that all aliens who have not previously been registered and fingerprinted pursuant to section 221(b) of the Act (8 U.S.C. 1201(b)), have a duty to apply for registration and to be fingerprinted if they remain in the United States for 30 days or longer. 1/ Under the existing regulations at 8 CFR 264.1(a), the Immigration and Naturalization Service (“Service” or “INS”) registers nonimmigrants using Form I-94 (Arrival-Departure Record). As authorized by section 262(c) of the Act (8 U.S.C. 1302(c)), however, the Service's existing regulations at 8 CFR 264.1(e) contain general provisions waiving the fingerprinting requirement for many nonimmigrants. Accordingly, the vast majority of nonimmigrant aliens are admitted to the United States without being either finge rprinted or photographed.

Notwithstanding the general registration requirements, section 263(a) of the Act (8 U.S.C. 1303(a)) also authorizes the Attorney General to prescribe special regulations and forms for the registration, among other classes, of “aliens of any other class not lawfully admitted to the United States for permanent residence.” Pursuant to this section, as well as the Attorney General's general registration authority under section 262 of the Act (8 U.S.C. 1302), the Attorney General promulgated 8 CFR 264.1(f), whic h authorizes the Attorney General, by notice published in the Federal Register , to direct that certain nonimmigrant aliens from designated foreign countries be registered, fingerprinted, and photographed by the Service at the port of entry at the time the nonimmigrant aliens apply for admission. See 58 FR 68024 (Dec. 23, 1993) (final rule); 63 FR 39109 (July 21, 1998) (notice). Moreover, the Attorney General is authorized to prescribe conditions for the admission of nonimmigrant aliens under section 214 of the Act (8 U.S.C. 1184). Section 265 of the Act (8 U.S.C. 1305) requires that all aliens who remain in the United States for 30 days or more (other than A or G nonimmigrants) must file a notice of change of address with the Attorney General within 10 days of any change of address.

    This final rule provides for implementation of these requirements for nonimmigrant aliens subject to special registration. However, this Supplementary Information also serves as a reminder to all aliens (not just those nonimmigrant aliens subject to special registration) of their legal obligations under section 265 of the Act to notify the Attorney General, as delegated to the Service, within 10 days of any change of address by filing the general change of address form, Form AR-11.