[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Pages 14418-14419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6121]



Office of the Secretary

Exercise of Authority Under Section 212(d)(3)(B)(i) of the 
Immigration and Nationality Act

AGENCY: Office of the Secretary, DHS.

ACTION: Notice of determination.


    Authority:  8 U.S.C. 1182(d)(3)(B)(i).

    Following consultations with the Secretary of State and the 
Attorney General, I hereby conclude, as a matter of discretion in 
accordance with the authority granted to me by section 212(d)(3)(B)(i) 
of the Immigration and Nationality Act (INA), 8 U.S.C. 
1182(d)(3)(B)(i), as amended, as well as the foreign policy and 
national security interests deemed relevant in these consultations, 
that subsection 212(a)(3)(B)(i)(VIII) of the INA, 8 U.S.C. 
1182(a)(3)(B)(i)(VIII), shall not apply, with respect to an alien, who 
received military-type training (as defined in section 2339D(c)(1) of 
title 18, United States Code) under duress from, or on behalf of, a 
terrorist organization as described in subsection 212(a)(3)(B)(vi), 8 
U.S.C. 1182(a)(3)(B)(vi), provided that the alien satisfies the 
relevant agency authority that the alien:
    (a) Is seeking a benefit or protection under the INA and has been 
determined to be otherwise eligible for the benefit or protection;
    (b) Has undergone and passed all relevant background and security 
    (c) Has fully disclosed, to the best of his or her knowledge, in 
all relevant applications and interviews with U.S. government 
representatives and agents, the nature and circumstances of each 
instance of military-type training and any other activity or 
association falling within the scope of section 212(a)(3)(B) of the 
INA, 8 U.S.C. 1182(a)(3)(B);
    (d) Has not received training that itself poses a risk to the 
United States or United States interests (e.g., training on production 
or use of a weapon of mass destruction, as defined by 18 U.S.C. Section 
2332a(c)(2), torture, or espionage);
    (e) Poses no danger to the safety and security of the United 
States; and
    (f) Warrants an exemption from the relevant inadmissibility 
provision in the totality of the circumstances.
    Implementation of this determination will be made by U.S. 
Citizenship and Immigration Services (USCIS), in consultation with U.S. 
Immigration and Customs Enforcement (ICE), or by U.S. consular 
officers, as applicable, who shall ascertain, to their satisfaction, 
and in their discretion, that the particular applicant meets each of 
the criteria set forth above.
    When determining whether the military-type training was received 
under duress, the following factors, among others, may be considered: 
Whether the applicant reasonably could have avoided, or took steps to 
avoid, receiving military-type training, including whether the 
applicant left or escaped the training at the earliest opportunity, if 
one presented itself; the severity and type of harm inflicted or 
threatened and to whom the harm was directed; and the perceived 
imminence of the harm threatened and the perceived likelihood that the 
harm would be inflicted.
    When considering the totality of the circumstances, factors to be 
considered, in addition to the duress-related factors stated above, may 
include, among others: The length and nature of the military-type 
training provided; the nature of the activities committed by the 
terrorist organization; the alien's awareness of those activities; the 
alien's conduct since the time of the military-type training; and any 
other relevant factor.
    This exercise of authority may be revoked as a matter of discretion 
and without notice at any time with respect to any and all persons 
subject to it. Any determination made under this exercise of authority 
as set out above can inform but shall not control a decision regarding 
any subsequent benefit or protection applications, unless such exercise 
of authority has been revoked.
    This exercise of authority shall not be construed to prejudice, in 
any way, the ability of the U.S. government to commence subsequent 
criminal or civil proceedings in accordance with U.S. law involving any 
beneficiary of this exercise of authority (or any other person). This 
exercise of authority creates no substantive or procedural right or 
benefit that is legally enforceable by any party against the United 
States or its agencies or officers or any other person.
    In accordance with section 212(d)(3)(B)(ii) of the INA, 8 U.S.C. 
1182(d)(3)(B)(ii), a report on the aliens to whom this exercise of 
authority is applied, on the basis of case-by-case

[[Page 14419]]

decisions by the U.S. Department of Homeland Security or by the U.S. 
Department of State, shall be provided to the specified congressional 
committees not later than 90 days after the end of the fiscal year.
    This determination is based on an assessment related to the 
national security and foreign policy interests of the United States as 
they apply to the particular persons described herein and shall not 
have any application with respect to other persons or to other 
provisions of U.S. law.

    Dated: January 7, 2011.
Janet Napolitano,
Secretary of Homeland Security.
[FR Doc. 2011-6121 Filed 3-15-11; 8:45 am]