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List of Countries for Which Privilege of Communication is Allowed [60 FR 16042][FR 16-95]
FEDERAL REGISTER CITE:
60 FR 16042
March 29, 1995
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1616-93]
List of Countries for Which Privilege
of Communication is Allowed
Immigration and Naturalization Service, Justice.
Interim rule with request for comments.
This rule revises the list of countries with which the United States has existing treaties requiring immediate communication with appropriate consular or diplomatic officers whenever nationals of those countries are detained in exclusion or expulsion proceedings. This rule is necessary to ensure that foreign nationals who are arrested by immigration officers in the United States will be aware of their privilege of communication with the consular or diplomatic officers of the country of his or her nationali
ty. It is also necessary that immigration officers be kept abreast of changes of United States treaty obligations that require mandatory notification to certain countries when nationals of those countries are arrested. When aliens are detained by the Immigration and Naturalization Service (INS) officers at ports of entry, consular or diplomatic officers must be notified as presently required in 8 CFR 242 for deportation proceedings. Therefore, a addition will be made to 8 CFR 235 to make clear that the no
tification requirement applies equally in exclusion proceedings. This revision will have an impact on ensuring that the treaty rights of foreign nationals are protected.
This interim rule is effective March 29, 1995. Written comments must be submitted on or before May 30, 1995.
Please submit written comments, in triplicate, to the Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536 Attention: Public Comment Clerk. To ensure proper handling please reference INS number 1616-93 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3038 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT:
Ira L. Frank, Senior Special Agent, Investigations Division, Immigration and Naturalization Service, 425 I Street, NW., Room 1000, Washington, DC 20536, telephone (202) 514-0747.
A number of changes are necessary to revise 8 CFR 242.2(g), the regulation that ensures immediate communication with appropriate consular or diplomatic officers whenever nationals of particular countries with which we have existing treaties are detained in exclusion or expulsion proceedings. A cross reference is being made to part 235 by adding a subsection, 235.3(g), to make clear that the mandatory notification requirement applies equally to exclusion and deportation proceedings.
Three countries, Malawi, Kenya, and Uganda are being removed from the list of countries for which consular notification is mandatory. The United States-United Kingdom consular convention which made notification mandatory is no longer in effect for these three countries, although it was in effect for a time after they became independent.
Other countries removed from the mandatory notification list include Algeria, Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Cameroon, Canada, Chile, Colombia, Cuba, Czechoslovakia, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, France, Gabon, Federal Republic of Germany, Guatemala, Holy See, Honduras, Iraq, Ireland, Italy, Laos, Lesotho, Liechtenstein, Luxembourg, Madagascar, Mali, Mexico, Nepal, New Zealand, Niger, Oman, Pakistan, Panama, Paraguay, Portugal, Republic of China, Rwanda,
Senegal, Somalia, Spain, Sweden, Switzerland, Tunisia, Uruguay, Upper Volta, Venezuela, Republic of Viet-Nam, and Yugoslavia. These countries have been removed because the Service has been informed by the Department of State that there has never been an obligation required by treaty to provide mandatory notification. Henceforth, the listing will only reflect those countries that do have treaties with the United States.
The disintegration of the Union of Soviet Socialist Republics (USSR) causes us to list the twelve Soviet successor states separately. The twelve states are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
We are also, however, listing "Union of Soviet Socialist Republics (USSR)," with a footnote listing the twelve successor states and noting that they continue to be covered by the mandatory notice provision of the United States--USSR consular convention. Including "USSR" with a footnote as a safeguard is advisable for the time being, since some nationals of the successor states may still be travelling on USSR passports.
Due to the break up of Czechoslovakia, the Czech and Slovak Republics will be listed separately as mandatory notification countries. The consular convention with Czechoslovakia, which contained a mandatory notification provision, remains in force with respect to both new countries.
Other countries being added to the mandatory notification list as a result of treaties with the United States include Albania, Antigua, Bahamas, Barbados, Belize, Brunei, Bulgaria, Dominica, Grenada, Kiribati, Mongolia, St. Kitts/Nevis, St. Lucia, St. Vincent/Grenadines, Seychelles, South Korea, and Tuvalu.
The Service's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the "good cause" exception found at 5 U.S.C. 553(d)(3). The reasons and the necessity for immediate implementation of this interim rule are as follows: The treaties to which the United States is a signatory require immediate communication with appropriate consular or diplomatic officers whenever nationals of particular countries are detained in exclusion or expulsion proceedings.
Accordingly, implementation of this requirement cannot be delayed without the United States being in violation of its treaty obligations.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), 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 because of the following factors. The rule primarily concerns matters of agency records and proof of facts at administrative hearings that do not concern small entities.
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, Sec. 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 regulations proposed herein will not have substantial direct effect 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 12606
The Commissioner of the Immigration and Naturalization Service certifies that she has assessed this rule in light of the criteria in Executive Order 12606 and has determined that this regulation has no impact on family well-being.
List of Subjects
8 CFR Part 235
Administrative practice and procedure, Aliens, Detention, Immigration, Port of entry, Reporting and recordkeeping requirements.
8 CFR Part 242
Administrative practice and procedure, Aliens.
Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:
PART 235-INSPECTION OF PERSONS APPLYING FOR ADMISSION
The authority citation for part 235 continues to read as follows:
8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 1226, 1227, 1228, 1252.
In Sec. 235.3, a new paragraph (g) is added to read as follows:
Sec. 235.3 Detention and deferred inspection.
* * * * *
Privilege of communication
The mandatory notification requirements of consular and diplomatic officers pursuant to 8 CFR 242.2(g) apply to exclusion proceedings.
PART 242-PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
The authority citation for part 242 continues to read as follows:
8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252b, 1254, 1362; 8 CFR part 2.
In Sec. 242.2, paragraph (g) is revised to read as follows:
Sec. 242.2 Apprehension, custody, and detention.
* * * * *
Privilege of communication
Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever nationals of the following countries are detained in exclusion or expulsion proceedings, whether or not requested by the alien and even if the alien requests that no communication be undertaken in his or her behalf:
China (People's Republic of)
Arrangements with these countries provide that U.S. authorities shall notify responsible representatives within 72 hours of the arrest or detention of one of their nationals.
When Taiwan nationals (who carry "Republic of China" passports) are detained, notification should be made to the nearest office of the Coordination Council for North American Affairs, the unofficial entity representing Taiwan's interests in the United States.
British dependencies are also covered by this agreement. They are: Anguilla, British Virgin Islands, Hong Kong, Bermuda, Montserrat, and the Turks and Caicos Islands. Their residents carry British passports.
All U.S.S.R. successor states are covered by this agreement. They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
* * * * *
March 23, 1995
Commissioner,Immigration and Naturalization Service.