[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Rules and Regulations]
[Pages 82254-82256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33133]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 208, 210, 212, 235, 241, and 245a
[INS No. 2004-99]
RIN 1115-AF53
Clarification of Parole Authority
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations concerning the authority to grant the parole of
aliens from Service custody by specifically identifying the scope of
that authority. This action is being taken to clarify which officials
are authorized by the Attorney General, acting through the
Commissioner, to grant parole from Service custody.
DATES: Effective Date: This interim rule is effective January 29, 2001.
Comment Date: Written comments must be submitted on or before
February 26, 2001.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW, Room 4034, Washington, DC
20536. To ensure proper handling, please reference INS No. 2004-99 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: Yvette M. LaGonterie, Office of
International Affairs, Parole Branch, 111 Massachusetts Avenue NW.,
ULLICO Building, third floor, Washington, DC 20001, telephone (202)
305-2670.
SUPPLEMENTARY INFORMATION:
How Does This Rule Amend the Existing Regulation?
Section 212(d)(5)(A) of the Immigration and Nationality Act (Act)
gives the Attorney General discretion to parole into the United States,
temporarily, for urgent humanitarian reasons or significant public
benefit, any alien applying for admission to the United States. While
the power to delegate this authority clearly flows from the Attorney
General through the Commissioner to her designees, Sec. 212.5 appears
to delegate this parole authority solely to the district director (DD)
and the chief patrol agent (CPA). This rule amends Sec. 212.5 to bring
it into conformity a with the delegation of authority provisions
contained in Secs. 2.1 and 103.1. This rule adds a new paragraph (a) to
Sec. 212.5 which specifically states that the scope of the authority to
grant parole flows from the Commissioner through her designees, so that
the Deputy Commissioner, the Executive Associate Commissioner (EAC) for
Field Operations, regional directors (RD) and other designees have the
power to grant parole.
Why is This Rule Necessary?
This rule is intended to clarify the existing authority of Service
officials to grant parole. Some have interpreted Sec. 212.5 to mean
that the authority to grant parole is limited to the DD and the CPA.
This interpretation is erroneous. See Matter of ACCARDI, 14 I. & N.
Dec. 367 (BIA 1973). Under section 212(d)(5) of the Act, parole
authority is vested with the Attorney General. It is well established
under both precedent decisions and Sec. 2.1 that the Attorney General
has delegated authority to the Commissioner to implement and enforce
the provisions of the Act, but that the Attorney General retains that
authority. Section 103.1 further establishes the power of the
Commissioner to delegate her authority to subordinate officials, so
that the authority to enforce the Act flows from the Commissioner to
her designees, but without divesting the Commissioner or her
subordinates of the delegated authority. The specific reference to the
DD and the CPA in Sec. 212.5 presumes a delegation of authority from
the Commissioner through the chain of command set forth in Sec. 103.1.
To clarify this delegation of authority and to avoid an erroneous
interpretation, Sec. 212.5 will be amended to specifically recognize
that authority. Therefore, the authority to parole aliens under
Sec. 212.5 is
[[Page 82255]]
clarified to include the Commissioner and officers within the
Commissioner's chain of command, including the Deputy Commissioner, the
EAC for Field Operations, the RD, the DD and the CPA.
Exceptions to Notice and Comment
The Service's implementation of this rule as an interim rule with
provisions for post-promulgation public comment is based upon the
exceptions to notice and comment found at 5 U.S.C. 553(a)(2) and
553(b)(3)(A) for the following reason: this rule relates to agency
management and the rules of agency organization. It does not create a
new authority, but merely clarifies the delegation of an existing
authority.
Regulatory Flexibility Act
The Commission of the Immigration and Naturalization Service, 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
economic impact on a substantial number of small entities because this
rule merely provides authority to Service officials to grant parole of
aliens from Service custody. The aliens in Service custody are not
considered 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 1 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 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 provided in section 3(a)
and 3(b)(2) of Executive Order 12988.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 210
Aliens, Migrant labor, Reporting and recordkeeping requirements.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 241
Aliens.
8 CFR Part 245a
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Sec. 103.12 [Amended]
2. Section 103.12 is amended by revising the reference to
``212.5(a)(3)'' to read ``212.5(b)(3)'' in paragraph (a)(3)(ii).
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
3. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
Sec. 208.8 [Amended]
4. Section 208.8 is amended by revising the reference to
``212.5(e)'' to read ``212.5(f)'' in paragraph (a) and (b).
PART 210--SPECIAL AGRICULTURAL WORKERS
5. The authority citation for part 210 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.
Sec. 210.4 [Amended]
6. Section 210.4 is amended by revising the reference to
``212.5(e)'' to read ``212.5(f)'' in the last sentence of paragraph
(b)(2).
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
7. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
8. Section 212.5 is amended by:
a. Redesignating paragraphs (a) through (g) as paragraphs (b)
through (h) respectively;
b. Adding a new paragraph (a);
c. Revising the reference to ``(a)(3)(i)'' to read ``(b)(3)(i)'' in
the introductory text in newly redesignated paragraph (b)(3);
d. Revising the reference to ``paragraph (a)'' to read ``paragraph
(b)'' in the first sentence of newly redesignated paragraph (c);
e. Revising the reference to ``paragraph (c)'' to read ``paragraph
(d)''
[[Page 82256]]
in the first sentence of newly redesignated paragraph (c);
f. Revising the reference to ``paragraph (e)'' to read ``paragraph
(f)'' in the second sentence of newly redesignated paragraph (c);
g. Revising the reference to ``paragraph (a) or (b)'' to read
``paragraph (b) or (c)'' in the first sentence of the introductory text
of newly redesignated paragraph (d);
h. Revising the reference to ``(d)(2)'' to read ``(e)(2)'' in newly
redesignated paragraph (e)(1);
i. Revising the reference to ``(d)(1)'' to read ``(e)(1)'' in newly
redesignated paragraph (e)(2)(i);
j. Revising the reference to ``212.5(d)(2)(i)'' to read
``212.5(e)(2)(i)'' in the last sentence of newly redesignated paragraph
(e)(2)(ii); and by
k. Revising the reference to ``(g)(2)'' to read ``(h)(2)'' in newly
redesignated paragraph (h)(1), to read as follows:
Sec. 212.5 Parole of aliens into the United States.
(a) The authority of the Commissioner to continue an alien in
custody or grant parole under section 212(d)(5)(A) of the Act shall be
exercised by the district director or chief patrol agent, subject to
the parole and detention authority of the Commissioner or her
designees, which include the Deputy Commissioner, the Executive
Associate Commissioner for Field Operations, and the regional director,
any of whom in the exercise of discretion may invoke this authority
under section 212(d)(5)(A) of the Act.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
9. The authority citation for part 235 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
Sec. 235.3 [Amended]
10. Section 235.3 is amended by revising the reference to
``212.5(a)'' to read ``212.5(b)'' in the second sentence of paragraph
(c).
Sec. 235.4 [Amended]
11. Section 235.4 is amended by revising the reference to
``212.5(a)'' to read ``212.5(b)'' in the last sentence.
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
12. The authority citation for part 241 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1223, 1227, 1251, 1253, 1255, and
1330; 8 CFR part 2.
Sec. 241.33 [Amended]
13. Section 241.33 is amended by revising the reference to
``212.5(a)'' to read ``212.5(b)'' in the introductory text of paragraph
(a).
PART 245a--ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR
LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF
THE IMMIGRATION AND NATIONALITY ACT
14. The authority citation for part 245a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.
Sec. 245a.2 [Amended]
15. Section 245a.2 is amended by revising the reference to
``212.5(e)'' to read ``212.5(f)'' in paragraph (m)(1), and in the last
sentence of paragraph (n)(2)(i).
Sec. 245a.4 [Amended]
16. Section 245a.4 is amended by revising the reference to
``212.5(e)'' to read ``212.5(f)'' in paragraph (b)(13)(i), and in the
last sentence of paragraph (b)(14)(ii)(A).
Dated: December 21, 2000.
Mary Ann Wyrsch,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-33133 Filed 12-27-00; 8:45 am]
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