One commenter expressed concern about the exception for asylum seekers who arrive in the United States pursuant to a validly issued United States visa or other valid admission document. The commenter effectively noted that DHS may consider such documents, even if genuine, to support a charge of fraud in violation of section 212(a)(6)(C) of the Act if they were procured by applicants whose true intentions were to enter the United States to apply for asylum. The commenter sought clarification as to whether su ch United States visas would be considered “validly issued” under the exception to the Agreement. The DHS has not amended its rule in this area; however, the supplementary information to the DHS final rule states that for the limited purposes of applying the exception to the Agreement, USCIS will issue and apply operational guidance interpreting the term “validly issued” without regard to the asylum seeker's subjective intent. If an alien is placed into removal proceedings under section 240 of the Act, the parties may raise any issues concerning the interpretation of this exception before the immigration judge in the course of removal proceedings. The Department notes that the factual basis for a possible finding of inadmissibility under section 212(a)(6)(C) of the Act will be scrutinized, because such a finding may permanently bar an alien from admission. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994).

3. Public Interest Exception

    One commenter raised several issues concerning the application of the public interest exception for aliens in removal proceedings. For example, the commenter recommended that minors who have a parent or legal guardian in the United States and do not meet any of the specific exceptions to the Agreement should be considered under the public interest exception. The DHS rule provides that an asylum officer may decide in the public interest to allow an alien covered by the Agreement to pursue a claim for asylum or other protection even though the alien does not meet a specific exception to the Agreement. If the alien is in removal proceedings, DHS may file a written notice of its decision before the immigration judge. See 8 CFR 240.11(g)(3). The Attorney General has decided that the decision to invoke this authority will be left solely within the discretion of DHS and will not be within the discretion of the immigration judges to review or adjudicate in the first instance. The Department therefore declines to expa nd or amend the public interest definition as has been suggested by the commenter. We note that the supplementary information to the DHS rule concluded that the public interest exception is best administered through operational guidance and on a case-by-case basis. In addition, DHS has stated in the preamble to its rule that it will be sensitive to the unique issues facing minors and will proceed carefully in those cases.

    The commenter also recommended that the proposed rule establish a procedure between the Department and DHS to ensure that DHS fully considers the application of the public interest exception in those cases being adjudicated before an immigration judge. The Department declines to accept the commenter's recommendation. This rule provides that an immigration judge may consider asylum issues regarding an alien who otherwise would be barred by the Agreement if DHS notifies the immigration judge that it has invok ed the public interest exception. If an issue arises in removal proceedings related to the public interest exception, and it is within the jurisdiction of the immigration judge to address, the parties may raise the matter during the proceedings under the existing rules.

E. Procedures for Asylum Seekers Returned to the United States

    One commenter sought an explanation as to how asylum seekers returned to the United States from Canada under the Agreement will be received and processed. The commenter understood that these returnees, without lawful status in the United States, will be processed as if apprehended in the interior of the United States and thus will be placed in removal proceedings, rather than being treated as arriving aliens subject to expedited removal.

    The manner in which asylum seekers returned to the United States from Canada under the Agreement will be received and processed is within the province of DHS. See, e.g., Matter of Bahta, 22 I&N Dec. 1381, 1391 (BIA 2000) (addressing the former Immigration and Naturalization Service's fundamental authority to exercise procedural discretion on whether to commence removal proceedings). The supplementary information to the DHS final rule provides a discussion of how these asylum seekers will be received and pro cessed.

    The commenter recommended that, if DHS decides to detain an asylum seeker returned under the Agreement, immigration judges should either order the release of the individual or set a low bond if the person does not pose a danger to the community and his or her identity has been established.

    The Department declines to adopt special rules in this situation. In general, an alien whom DHS has chosen to place in removal proceedings before an immigration judge will be subject to the established procedures governing custody and bond determinations. See 8 CFR 236.1, 1003.19, and 1236.1(d). Those procedures do not apply, however, with respect to arriving aliens whom DHS has placed in expedited removal under section 235 of the Act. See also 8 CFR 235.3(c) (arriving aliens remain subject to detention as arriving aliens even if they are placed into removal proceedings under section 240 of the Act, but may be paroled by DHS). An arriving alien's custody status is not subject to review by an immigration judge. See 8 CFR 1003.19(h)(2)(i)(B); Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998).

    The commenter further expressed concern about a possible surge of asylum seekers to the United States-Canadian ports-of-entry before the implementation of the Agreement, which would result in the Canadian authorities being overwhelmed with requests and having to “direct back” aliens to the United States with re-scheduled Canadian interviews. This has reportedly happened in the past, and one consequence was that asylum seekers were detained in the United States and unable to return to Canada for their interv iews. The commenter recommended that, with respect to asylum seekers placed in removal proceedings “as a result of a Canadian direct-back, and absent any serious security concerns,” immigration judges either release these individuals on their own recognizance or set a low bond so that they can return to Canada to attend their scheduled hearings. The commenter also recommended that the removal proceedings of such individuals be administratively closed while they pursue their refugee claims in Canada.

    The Department declines to accept the commenter's recommendations. Because the Agreement does not contemplate that special consideration be given to such aliens, DHS will in the first instance decide how to deal with these individuals in the exercise of its enforcement discretion. If the aliens are placed into removal proceedings before an immigration judge, they will have recourse to existing procedures, including procedures for custody and bond redeterminations, and requests for administrative closure. Fo r a more complete discussion of how these aliens may be processed should this situation arise, see the SUPPLEMENTARY INFORMATION section in the DHS final rule published elsewhere in this Federal Register.

F. Reconsideration by Canada for Asylum Seekers Returned to the United States

    One commenter has encouraged Canada to establish a mechanism to reconsider cases, based on new evidence or changed circumstances, after a person has been returned to the United States under the Agreement. The commenter seeks an explanation as to how the Department would assist Canadian authorities if such a reconsideration was sought. The commenter specifically recommends that, in the event Canadian authorities seek the alien's presence at the United States-Canadian border to reconsider a claim, the immigra tion judge should order the release or appropriately lower the bond of that alien, and administratively close the alien's case if he or she is admitted into Canada to pursue a refugee claim.

    The Agreement does not address the issue of reconsideration of claims after they are adjudicated by either country. The Department will not speculate about what future developments in this area might occur. If Canadian officials do seek to reconsider the case of an alien who is in removal proceedings, the initial determination on how to respond would be made by DHS, not by the immigration judge. The parties to the proceedings may present their positions concerning the alien's detention in the course of any custody review properly before the immigration judge. Further, any request for administrative closure of a removal proceeding should be addressed on a case-by-case basis. See generally Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996) (administrative closure is used to temporarily remove a case from the docket, and is not permitted if opposed by either party).

The Department therefore declines to accept the commenter's recommendation.

G. Inadmissibility of Aliens Removed to Canada Under the Agreement

    One commenter recommended that an alien who is returned to Canada under the Agreement should not subsequently be found inadmissible to the United States under section 212(a)(9)(A)(i) of the Act (providing that any alien who has been ordered removed under section 235(b)(1) of the Act, or at the end of removal proceedings under section 240 of the Act initiated upon the alien's arrival, is inadmissible for 5 years after the date of such removal).

    The Department notes that the applicability of the Agreement does not change the fact that an alien has been ordered removed in the context of expedited removal proceedings or removal proceedings under section 240 of the Act. The Department finds no reason why section 212(a)(9)(A) of the Act, or any related provisions concerning aliens removed from the United States, would not apply in the case of an alien subject to the Agreement who is subject to expedited removal or is ordered removed to Canada by an imm igration judge. As for other arriving aliens who have been ordered removed, the alien may seek DHS' consent to reapply for admission, pursuant to section 212(a)(9)(A)(iii) of the Act.

H. Requests for Reconsideration for Asylum Seekers Returned to Canada

    One commenter recommended that the immigration judge and the Board permit requests by the individual asylum seeker, or the Canadian government, to reconsider a decision that an alien did not qualify for an exception to the Agreement, even after an alien has been removed to Canada.

    The Department declines to accept the commenter's recommendation. The rules governing motions for reopening and reconsideration do not provide authority for third parties, such as the Canadian government, to file motions in proceedings before the immigration judge or the Board. See 8 CFR 1003.2(a) and 1003.23(b). In addition, the regulations provide that a motion to reopen or reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequ ent to his or her departure from the United States. See 8 CFR 1003.2(d) and 1003.23(b). The Department declines to make any amendments to these existing regulations.

    The commenter requested that, at a minimum, individuals returned to Canada be permitted to resubmit asylum claims at the border, assuming they are not detained. With respect to an alien who already has been returned to Canada under the Agreement in order to seek protection under Canadian law, allowing such an alien to return once again to the United States and resubmit his or her asylum claims after being denied relief in Canada would undermine a general premise of the Agreement, which is that a covered ali en is able to seek protection in one country or the other, but not both. If such an alien later returns to a U.S.-Canada land border port-of-entry seeking protection, he or she would remain subject to the Agreement and be removed to Canada again unless he or she was able to establish an exception to the Agreement.

I. Miscellaneous Issues

    The Department also received several miscellaneous comments from one commenter who asserted that the United States has too many illegal immigrants (which drives up various costs), that battered women should stay in their own countries and work to change laws there, and that this rule is a “major rule” that will costs taxpayers millions of dollars.

    In response, it is the Department's long-standing position that America is a welcoming country to persons who come here lawfully--whether they come here as immigrants or non-immigrants (including as refugees from human rights abuses)--and that lawful immigration benefits this country. However, the Department and other agencies of the United States government vigorously enforce American immigration laws against illegal immigration. The Department disagrees that this rule is a “major rule” under the Small Bus iness Regulatory Enforcement Fairness Act or that it is “economically significant” within the meaning of Executive Order 12866. This rule simply implements a statutorily-authorized agreement between the United States and Canada that allocates responsibility between the United States and Canada for processing claims of certain asylum seekers.

    Finally, the Department has added one minor conforming amendment at 8 CFR 1235.3(b)(4) to accommodate DHS' use of the threshold screening process in applying the Agreement. For more details concerning the DHS amendment to 8 CFR 235.3(b)(4), see the DHS final rule also appearing in this Federal Register. This rule makes a conforming amendment to 8 CFR 1235.3(b)(4) to cross-reference the provisions of the DHS rule rather than restating them. The Department is also correcting a typographical error to the part heading of 8 CFR 1235.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects individual aliens, as it relates to claims of asylum. It does not affect small entities, as that term is defined in 5 U.S.C. 601(6).

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 251 of the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). 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

    The Attorney General has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been submitted to the Office of Management and Budget for review. In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6), and has made a reasoned determination that the benefits of this regulation justify its costs.

    The rule would implement a bilateral Agreement that allocates responsibility between the United States and Canada for processing claims of certain asylum-seekers, enhancing the two nations' ability to manage, in an orderly fashion, asylum claims brought by persons crossing our common border. The rule applies to certain individuals in removal proceedings who apply for asylum. This rule simply adds another factor for immigration judges to consider in removal proceedings. Therefore, the “tangible” costs of thi s rulemaking to the U.S. Government are minimal. Applicants who are found to be subject to the bilateral Agreement with Canada will be returned to Canada to seek asylum, saving the U.S. Government the cost of adjudicating their asylum claims.

    The cost to asylum-seekers who, under the rule, will be returned to Canada are the costs of pursuing an asylum claim in Canada, as opposed to the United States. There is no fee to apply for asylum in Canada and, under Canadian law, asylum-seekers are provided social benefits for which they are not eligible in the United States. Therefore, the tangible costs of seeking asylum in Canada are no greater than they are in the United States. The “intangible” costs to asylum-seekers who would be returned to Canada under the rule are the costs of potential separation from support networks they may be seeking to join in the United States. However, the Agreement contains broad exceptions based on principles of family unity that would allow many of those with family connections in the United States to seek asylum in the United States under existing regulations.

Executive Order 13132

    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 section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

Family Assessment Statement

    The Attorney General has reviewed this regulation and assessed this action in accordance with the criteria specified by section 654(c)(1) of the Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A. The Attorney General has determined that it will not affect family well-being as that term is defined in section 654.

    The separate final rule published by the Department of Homeland Security explains that an alien arriving at U.S.-Canada land border port-of-entry may qualify for an exception to the bilateral Agreement with Canada, which otherwise requires individuals to seek protection in the country of last presence (Canada), by establishing a relationship to a family member in the United States who has lawful status in the United States, other than a visitor, or is 18 years of age or older and has an asylum application p ending. The DHS proposed rule addresses issues relating to family well-being in connection with that rule.

    This rule provides that the immigration judges will apply the definition of “family member” used in the Agreement and DHS rule, in those cases where DHS has chosen to place an alien who is subject to the Agreement into removal proceedings under section 240 of the Act. However, that is expected to occur only very rarely. In any other case, where DHS does not choose to place an arriving alien into removal proceedings under section 240 of the Act, this rule has no effect on family well-being, because the immig ration judges will not be involved. DHS determinations made under the Agreement will not be reviewed by the Department of Justice.