[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Rules and Regulations]
[Pages 19382-19384]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 98-10354]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 1

[INS Order No. 1868-97]
RIN 1115-AE87


Amendment of the Regulatory Definition of Arriving Alien

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations by changing the regulatory definition of an 
arriving alien. Under section 235(b)(1)(A)(i) of the Immigration and 
Nationality Act (Act), which was effective on April 1, 1997, certain 
arriving aliens are subject to expedited removal procedures. The 
existing regulatory definition of arriving alien includes parolees 
whose parole is terminated, without regard to the date of parole or the 
circumstances under which parole was granted. As a matter of policy, 
the Service has decided that it is appropriate to exempt from the new 
expedited removal procedures aliens who were paroled into the United 
States before April 1, 1997, as well as aliens who, either before or 
after April 1, 1997, return to the United States pursuant to a grant of 
advance parole that they applied for and obtained while physically 
present in and prior to their departure from the United States. This 
rule clarifies that these two types of parolees will not be subjected 
to expedited removal.

DATES: Effective Dates: The interim rule is effective April 20, 1998.
    Comment Date: Written comments must be received on or before June 
19, 1998.

ADDRESSES: 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 1868-97 
on your 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:
Linda Loveless, Assistant Chief Inspector, Immigration and 
Naturalization Service, 425 I Street NW., Room 4064, Washington, DC 
20536, telephone number (202) 616-7489.

SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Pub. L. 104-208, which was enacted on 
September 30, 1996, created new expedited removal procedures for aliens 
attempting to enter the United States through fraud or 
misrepresentation or without proper documents. This provision was 
effective on April 1, 1997, and is applicable to aliens who are 
``arriving in the United States'' as contained in section 
235(b)(1)(A)(i) of the Act.
    The existing regulatory definition of arriving alien includes 
parolees, starting that ``[a]n arriving alien remains such even if 
paroled pursuant to section 212(d)(5) of the Act.'' Including certain 
parolees in the definition of arriving aliens is consistent with 
section 212(d)(5) of the Act, which states that ``* * * such parole of 
such alien shall not be regarded as an admission of the alien and when 
the purpose of such parole shall, in the opinion of the Attorney 
General, have been served the alien shall forthwith return or be 
returned to the custody from which he was paroled and thereafter his 
case shall continue to be dealt with in the same manner as that of any 
other applicant for admission to the United States.'' Existing 
regulations on the termination of parole are also consistent with the 
classification of certain paroled aliens as arriving aliens, stating 
that ``* * * he or she shall be restored to the status that he or she 
had at the time of parole.'' 8 CFR 212.5(d)(2)(i).
    The definition as currently in effect, though consistent with the 
Act and prior regulations, encompasses certain groups not best regarded 
as arriving aliens for purposes of the applicability of expedited 
removal, such as aliens initially paroled before (often well before) 
the effective date of the expedited removal provisions, and aliens 
previously present in the United States (in some cases for long 
periods) who departed from and returned to the United States pursuant 
to advance parole. Because the Act does not contain a definition of 
``arriving alien,'' it is left to the Attorney General to define the 
term in a manner that conforms with

[[Page 19383]]

congressional intent as embodied in the Act. This rule clarifies that 
aliens who were paroled before April 1, 1997, and aliens who return to 
the United States pursuant to advance parole that they applied for and 
obtained while physically present in and prior to their departure from 
the United States, will not be subject to expedited removal when their 
parole is terminated. This exception does not alter the legal status of 
these parolees; these paroled aliens remain applicants for admission as 
in the past.
    This rule also amends the arriving alien definition by replacing 
the reference to an alien who ``seeks admission to or transit through 
the United States'' with a reference to an ``applicant for admission 
coming or attempting to come into the United States at a port-of-entry, 
or an alien seeking transit through the United States at a port-of-
entry.'' The new language better conveys the intent of the definition, 
which is to delineate a particular segment of those aliens described in 
section 235(a)(1) of the Act, which defines aliens deemed to be 
applicants for admission. The term ``applicant for admission'' is a 
term of art under the Act as revised by IIRIRA. Section 235(a)(1) of 
the Act makes clear that an alien coming from abroad to a port in the 
United States may be considered an applicant for admission regardless 
of whether he or she subjectively desires admission. To the extent that 
the word ``seeks'' in the existing Sec. 1.1(q) suggests that an alien 
must have a subjective intent to gain admission in order to be an 
arriving alien, it may be susceptible to interpretations that are not 
consistent with the statute. Replacing the term ``seeks'' in the 
arriving aliens definition with the term ``coming or attempting to 
come'' prevents the possibility of such confusion.
    Finally, the rule removes the reference to 8 CFR part 235, which 
deals with inspection of persons applying for admission. This reference 
is not necessary and its removal will streamline the definition of 
arriving alien.

Good Cause Exception

    This interim rule is effective on publication in the Federal 
Register, although the Service invites post-promulgation comments 
within a 60-day comment period and will address any such comments in a 
final rule. For the following reasons, the Service finds that good 
cause exists under 5 U.S.C. 553(b)(B) and (d)(3) for implementing this 
rule as an interim rule without the prior notice and comment period 
ordinarily required under that provision. First, in certain respects, 
this rule simply clarifies issues that may appear ambiguous in the 
existing regulation defining arriving aliens. Second, to the extent 
that this rule substantively changes Service regulations, it simply 
provides more advantageous treatment for the limited number of parolees 
involved by exempting them from expedited removal procedures. Early 
implementation will be advantageous to the intended beneficiaries of 
this rule. Therefore, it is unnecessary and contrary to the public 
interest to delay the implementation of this rule until after a notice 
and comment period.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b) has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant impact on a substantial number of small 
entities because of the following factors: This rule makes two changes 
to the existing Sec. 1.1(q). First, by changing the arriving alien 
definition to provide that the expedited removal provisions will not 
apply to aliens paroled into the United States prior to April 1 or 
pursuant to advance parole which the aliens applied for and obtained in 
the United States, this rule simply provides that, where appropriate, a 
finite number of aliens will be subject to removal proceedings under 
section 240 of the Act, rather than to expedited removal under section 
235(b)(1)(A)(i) of the Act. This change will not affect small entities. 
Second, this rule also changes the arriving alien definition to use 
language that is clearer and more consistent with the Act. This change 
does not alter the meaning of the regulation and does not affect small 
entities.

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 804 of the 
Small Business Regulatory Enforcement Act of 1996. 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

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 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 regulation adopted herein 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 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 12988 Civil Justice Reform

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

List of Subjects in 8 CFR Part 1

    Administrative practice and procedures, Aliens, Immigration, 
Reporting and recordkeeping requirements.

    Accordingly, part 1 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 1--DEFINITIONS

    1. The authority citation for part 1 continues to read as follows:

    Authority: 8 U.S.C. 1101, 8 CFR part 2.

    2. Section 1.1 is amended by revising paragraph (q) to read as 
follows:


Sec. 1.1  Definitions.

* * * * *
    (q) The term arriving alien means an applicant for admission coming 
or attempting to come into the United States at a port-of-entry, or an 
alien seeking transit through the United States at a port-of-entry, or 
an alien interdicted in international or United States waters and 
brought into the United States by any means, whether or not to a 
designated port-of-entry, and

[[Page 19384]]

regardless of the means of transport. An arriving alien remains such 
even if paroled pursuant to section 212(d)(5) of the Act, except that 
an alien who was paroled before April 1, 1997, or an alien who was 
granted advance parole which the alien applied for and obtained in the 
United States prior to the alien's departure from and return to the 
United States, shall not be considered an arriving alien for purposes 
of section 235(b)(1)(A)(i) of the Act.
* * * * *
    Dated: February 13, 1998.
Doris Meissner,
Commissioner of the Immigration and Naturalization Service.
[FR Doc. 98-10354 Filed 4-17-98; 8:45 am]
BILLING CODE 4410-10-M