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Agreements Promising Non-Deportation or Other Immigration Benefits [61 FR 48405] [FR 55-96]
FEDERAL REGISTER CITE:
61 FR 48405
September 13, 1996
BILLING CODE 4410-01-M
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
28 CFR Part 0
[INS No. 1791-96; AG Order No. 2055-96]
Agreements Promising Non-Deportation or Other
Department of Justice.
Interim rule with request for comments.
This interim rule requires Federal prosecutors, law enforcement agencies, and other officials to obtain written consent from the Immigration and Naturalization Service (Service) when entering into a plea agreement, cooperation agreement, or similar agreement promising an alien favorable treatment by the Service. This rule ensures that favorable treatment under the immigration laws is extended only after a full consideration of its effect on overall immigration enforcement, alleviates confusion over the au
thority to enforce the immigration laws, and prevents the Service from being bound by agreements undertaken without its knowledge and approval. The rule codifies a long-standing position of the Department of Justice.
This interim rule is effective October 15, 1996. Written comments must be submitted on or before November 12, 1996.
Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 "I" Street NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS number 1791-96 on all correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT:
Brad Glassman, Office of the General Counsel, Immigration and Naturalization Service, 425 "I" Street NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895.
Considerable uncertainty has arisen as to whether plea agreements, cooperation agreements, and other agreements undertaken by agencies other than the Immigration and Naturalization Service (Service) may bind the Service in the exercise of its authority under the immigration laws. The Supreme Court has held that "anyone entering into an agreement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority." Fe
deral Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947). Accordingly, the Eleventh Circuit has held that "officials at the INS may initiate deportation proceedings against a particular defendant without considering whether (a) * * * U.S. Attorney has promised the defendant non-deportation as part of a plea agreement." San Pedro v. United States, 79 F.3d 1065, 1071 (11th Cir. 1996).
However, two United States Courts of Appeals have taken a different view, relying on common law agency principles to enforce a plea agreement and a cooperation agreement against the Service. Margalli-Olvera v. INS, 43 F. 3d 345 (8th Cir. 1994) (plea agreement); Thomas v. INS, 35 F.3d 1332 (9th Cir. 1994) (cooperation agreement). This rule will clarify which components within the Department of Justice have authority to bind the Department in matters concerning the immigration laws. The consent requirement
ensures that favorable treatment under the immigration laws is extended only after a full consideration of its effect on overall immigration enforcement, preserves the authority of the Service to enforce the immigration laws, and prevents the Service from being bound by agreements undertaken without its knowledge and approval. Cf. Thomas, 35 F.3d at 1341 ("If the Attorney General wished to limit the incidental authority of United States Attorneys [to bind the Service without its consent], she could easily d
o so with a section in the Code of Federal Regulations * * *."). This rule codifies a long-standing position of the Department of Justice.
The Attorney General's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the exception found at 5 U.S.C. 553(b)(3)(A) for "rulers of agency organization, procedure, or practice." The Attorney General certifies, in accordance with 5 U.S.C. 605(b) (1995), that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered to be a "significant regulatory action" within the me
aning of E.O. 12866, section 3(f), and accordingly has not been reviewed by the Office of Management and Budget. This rule is not considered to have federalism implications warranting the preparation of a Federalism Assessment in accordance with E.O. 12612.
List of Subjects in 28 CFR Part 0
Authority delegations (government agencies), Government employees, Organization and functions (government agencies), Whistleblowing.
Accordingly, part 0 of chapter I of Title 28 of the Code of Federal Regulations is amended as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
1. The authority citation for Part 0 continues to read as follows:
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
2. In part 0, subpart CC, a new Sec. 0.197 is added to read as follows:
§ 0.197 Agreements, in connection with criminal proceedings or investigations, promising non-deportation or other immigration benefits.
The Immigration and Naturalization Service (Service) shall not be bound, in the exercise of its authority under the immigration laws, through plea agreements, cooperation agreements, or other agreements with or for the benefit of alien defendants, witnesses, or informants, or other aliens cooperating with the United States Government, except by the authorization of the Commissioner of the Service or the Commissioner's delegate. Both the agreement itself and the necessary authorization must be in writing to
be effective, and the authorization shall be attached to the agreement.
September 9, 1996