[Federal Register: December 26, 2002 (Volume 67, Number 248)]
[Rules and Regulations]
[Page 78675-78678]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de02-3]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 212
[INS No. 2249-02; AG Order No. 2641-2002]
RIN 1115-AG90
Waiver of Criminal Grounds of Inadmissibility for Immigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: On July 9, 2002, the Department of Justice published a
proposed rule to implement a law authorizing the adjustment of status
for certain aliens from Cambodia, Vietnam, and Laos, and to codify the
Attorney General's approach to granting waivers under section 212(h) of
the Immigration and Nationality Act of the criminal grounds of
inadmissibility. This rule amends the Department of Justice regulations
concerning the standards for waivers of the criminal grounds of
inadmissibility for immigrants and responds to public comments on the
notice of proposed rulemaking published on July 9, 2002. In order to
allow the public an additional opportunity for public comment on this
change in the regulations, this rule is being published as an interim
final rule with a further 30-day comment period.
DATES: Effective date: This rule is effective January 27, 2003.
Comment date: Written comments must be submitted on or before
January 27, 2003.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street NW., Room 4034, Washington, DC 20536. To ensure proper
handling, please reference INS Number 2249-02 on the correspondence.
Comments may also be submitted electronically at insregs@usdoj.gov.
When submitting comments electronically, include INS No. 2249-02 in the
subject box so that the comments can be properly routed to
[[Page 78676]]
the appropriate office. Comments are available for public inspection at
the above address by calling (202) 514-3291 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Michael Valverde, Residence and Status
Branch, Immigration and Naturalization Service, 425 I Street, NW., Room
3214, Washington, DC 20536, Telephone (202) 514-4754.
SUPPLEMENTARY INFORMATION: On July 9, 2002, the Department of Justice
published a proposed rule in the Federal Register at 67 FR 45402 to
implement section 586 of Pub. L. 106-429, 8 U.S.C. 1255 note, and to
amend the regulations concerning waivers of the criminal grounds of
inadmissibility for immigrants, with a 60-day period for public
comment. Section 586 provides for adjustment of status to that of
lawful permanent resident for 5,000 eligible natives or citizens of
Vietnam, Cambodia, and Laos who were paroled into the United States
before October 1, 1997, and otherwise meet the standards of the law.
Many provisions of the proposed rule dealt with the process for
eligible aliens to apply for adjustment of status under section 586,
including the means for applicants to demonstrate that they were
physically present in the United States on October 1, 1997. The
Department is finalizing those provisions of that proposed rule in a
separate rule published elsewhere in this issue of the Federal
Register.
The procedures for implementing section 586 was not the only issue
addressed in the proposed rule. In addition, the proposed rule
addressed at some length the related issue of the standards for
granting waivers of the criminal grounds of inadmissibility for
immigrants under section 212(h) of the Immigration and Nationality Act
(``Act'') (8 U.S.C. 1182(h)). See 67 FR at 45404, 45407.
Although section 586(c) provides that four grounds of
inadmissibility do not apply, and provides special rules for waivers of
several other grounds, section 586 does not mention the availability of
waivers for criminal aliens. Even so, the Department has determined
that criminal aliens who are inadmissible under section 212(a)(2) of
the Act (8 U.S.C. 1182(a)(2)) may apply for a waiver under section
212(h) of the Act. The Department is aware that many aliens who might
otherwise be eligible under section 586 are inadmissible on criminal
grounds.
The Attorney General has determined to exercise the discretion
accorded to him under section 212(h) of the Act in connection with
applicants under section 586. Because section 212(h) of the Act is a
general provision applicable to waivers for immigrants, it is
appropriate to adopt standards for the exercise of discretion in all
cases under section 212(h) of the Act, rather than creating a new
standard applicable only to the Indochinese population covered by
section 586. As was made clear in the title of the July 2002 proposed
rule, and in the supplementary information for that rule as well as the
proposed regulatory text, the proposed amendment to Sec. 212.7(d),
regarding the exercise of discretion under section 212(h) of the Act,
was applicable to all aliens seeking waivers under the latter
provision.
In response to the July 9, 2002, proposed rule, one commenter urged
that the Department address the amendment to Sec. 212.7(d) in a
separate rule, because that regulatory change is applicable to all
immigrants seeking a waiver of the criminal grounds of inadmissibility.
The Department believes that this issue is linked to the implementation
of the adjustment provisions in section 586 and that both changes need
to be made at the same time. However, in addressing the two sets of
issues, the Department has agreed to promulgate the amendment to Sec.
212.7(d) in a separate, companion rulemaking. Although for
administrative purposes this interim final rule has been assigned a
different tracking number (RIN) than the July 9, 2002, proposed rule,
this interim final rule is adopting in final form the proposed
amendment to Sec. 212.7(d) that was set forth in the July 2002
proposed rule. This rule will take effect 30 days after publication in
the Federal Register. It is being issued as an interim rule for the
purpose of soliciting additional public comment. After consideration of
these additional public comments, the Department will publish a final
rule.
In the final rule implementing section 586 (published elsewhere in
this issue of the Federal Register), the Department has responded to
many of the public comments regarding the availability of waivers of
inadmissibility to eligible Indochinese applicants for adjustment of
status under section 586. The following discussion responds to the
public comments that related specifically to the amendment to Sec.
212.7(d) with respect to the Attorney General's exercise of discretion
under section 212(h) of the Act to waive the criminal grounds of
inadmissibility for any alien applying or reapplying for a visa,
seeking admission to the United States, or seeking adjustment of status
to that of an alien admitted for permanent residence.
Comments Regarding the Exercise of Discretion Under Section 212(h) of
the Act
The Proposed Regulations Are Outside of the Authority of the Department
Several commenters argued that the Attorney General does not have
the authority to adopt the standard at 8 CFR 212.7(d) regarding waivers
of the criminal grounds of inadmissibility under section 212(h) of the
Act.
To the contrary, the Attorney General does have the authority to
establish, by regulation, standards for the exercise of discretion
under section 212(h) of the Act. Section 212(h)(1) of the Act requires
a waiver applicant to establish, to the satisfaction of the Attorney
General, one of the eligibility criteria set forth in that provision.
Once the applicant has established his or her threshold eligibility,
the Attorney General must then determine, under section 212(h)(2) of
the Act, whether to grant the waiver. This determination is in the sole
discretion of the Attorney General. Moreover, the Attorney General has
the authority to decide when and how this discretion will be exercised.
Section 212(h)(2) of the Act provides that the Attorney General may
grant a waiver if he, ``in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of status.'' 8 U.S.C.
1182(h)(2) (emphasis added).
This interim rule, at 8 CFR 212.7(d), sets forth a general rule for
when the Attorney General will exercise his discretion pursuant to his
authority under section 212(h)(2) of the Act. Except in extraordinary
circumstances, the Attorney General will not exercise discretion in
favor of an applicant where the application involves a violent or
dangerous crime. Extraordinary circumstances include situations where
the alien has established exceptional and extremely unusual hardship,
or situations where there are overriding national security or foreign
policy considerations. Moreover, depending on the nature and severity
of the underlying offense that renders the applicant inadmissible, the
Attorney General retains the discretion to determine that the mere
existence of extraordinary circumstances is insufficient to warrant the
grant of a waiver. This standard was set forth in Matter of Jean, 23 I.
& N. Dec. 373 (A.G. 2002), in the context of a discretionary waiver
under section 209(c) of the Act (8 U.S.C. 1159(c)) pertaining to
refugees,
[[Page 78677]]
and for applicants for asylum under section 208 of the Act (8 U.S.C.
1158).
With this interim rule, the Department is now codifying these same
principles in connection with other aliens who seek discretionary
relief under section 212(h) of the Act from the criminal grounds of
inadmissibility. This interim rule extends the standard the Attorney
General articulated in Matter of Jean and makes it applicable to
criminal aliens applying or reapplying for a visa, seeking admission to
the United States, or seeking adjustment of status. This action is in
accord with the provisions of section 212(h)(2) of the Act, which
provides that the Attorney General has authority by regulation to set
standards for discretion for aliens seeking waivers for the criminal
grounds of inadmissibility.
One of the threshold bases for establishing eligibility for a
waiver under section 212(h) of the Act is to demonstrate ``to the
satisfaction of the Attorney General that the alien's denial of
admission would result in extreme hardship to the United States citizen
or lawfully resident spouse, parent, son, or daughter of such alien.''
Section 212(h)(1)(B) (8 U.S.C. 1182(h)(1)(B)). Some commenters
suggested that the language of the proposed rule in Sec. 212.7(d)
conflicts with the statutory standard of ``extreme hardship'' in
section 212(h)(1)(B) of the Act.
The Department disagrees with this contention. The standard in 8
CFR 212.7(d) for the exercise of the Attorney General's discretion does
not relate to the threshold eligibility requirement of ``extreme
hardship'' in section 212(h)(1)(B) of the Act. Satisfying one of the
statutory standards for determining an alien's threshold eligibility
for seeking a waiver is only the first part of the waiver process. Even
after the waiver applicant has met the required showing of ``extreme
hardship,'' or one of the other threshold standards, the law also
provides, in section 212(h)(2) of the Act, that the Attorney General
has the discretion whether to grant affirmatively the requested relief
to each alien. The regulation at 8 CFR 212.7(d) governs only the
exercise of discretion under section 212(h)(2) of the Act, after the
alien has met the threshold requirements of section 212(h)(1) of the
Act.
Moreover, simply because an alien has established ``extreme
hardship'' under section 212(h)(1)(B) of the Act, such a determination
does not bind the Attorney General in exercising his discretion under
section 212(h)(2) of the Act. See INS v. Yueh-Shaio Yang, 519 U.S. 26,
30-31 (1996) (in determining whether to waive deportation of aliens
deportable for entry fraud, Attorney General could decide not to grant
waiver because of the fraud, even though committing entry fraud made
alien eligible for waiver; Attorney General could take such conduct
into account when deciding whether or not to grant waiver because the
statute ``establishes only the alien's eligibility for the waiver. Such
eligibility in no way limits the considerations that may guide the
Attorney General in exercising her discretion to determine who, among
those eligible, will be accorded grace.'') (emphasis in original).
The standard in 8 CFR 212.7(d) is also grounded in cases
interpreting the Act. As discussed in the proposed rule, in assessing
whether an applicant has met the burden that a waiver is warranted in
the exercise of discretion, the adjudicator must balance adverse
factors evidencing inadmissibility as a lawful permanent resident with
the social and humane considerations presented to determine if the
grant of relief appears to be in the best interests of the United
States. Matter of Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996)
(involving a waiver under section 212(h)(1)(B) of the Act).
Establishment of extreme hardship and eligibility for a waiver
requiring a showing of such hardship does not create an entitlement to
the relief sought. Id.; Matter of Cervantes-Gonzalez, 22 I. & N. Dec.
560 (BIA 1999). Extreme hardship, once established, is but one
favorable discretionary factor to be considered. Id.; Matter of Mendez-
Moralez, 21 I. & N. Dec. 296 (BIA 1996).
In view of these considerations, this rule will codify the
regulations proposed at 8 CFR 212.7(d), with one technical amendment to
conform the language more closely to the text of section 212(h)(2) of
the Act.
Other Issues Relating to the Discretion of the Attorney General to
Grant Waivers
The Department received three comments raising other issues
relating to the Attorney General's discretion to grant waivers of
criminal grounds of inadmissibility.
One commenter suggested that the final regulations clarify that the
waiver referred to in the proposed rule 8 CFR 212.7(d) is available
only to aliens who are applying to adjust status under section 209 of
the Act (8 U.S.C. 1159). The commenter stated that clarification of
this point is necessary in order to prevent adjustment applicants who
are not refugees from erroneously concluding that there is a broad
waiver of certain criminal grounds of inadmissibility available to
them, when in fact the statute expressly restricts the Attorney
General's authority to grant such waivers to inadmissible aliens in
accordance to section 212(h) of the Act (8 U.S.C. 1182(h)) except in
very narrow circumstances.
The Department agrees with the commenter that the statutory
language authorizing a waiver of the criminal grounds of
inadmissibility found in section 212(a)(2) of the Act (8 U.S.C.
1182(a)(2)) in connection with an application for adjustment of status
under section 209 of the Act is broader than that found in section
212(h) of the Act, which authorizes waivers of criminal grounds of
inadmissibility in connection with applicants for adjustment of status
under other provisions of the immigration law. The Attorney General's
decision in Matter of Jean already governs the standards under which a
criminal ground of inadmissibility waiver may be granted as a matter of
discretion in a section 209 adjustment case. However, the amendments
contained in this interim rule harmonize the exercise of discretion to
grant criminal waivers among applicants for adjustment of status by
extending the Matter of Jean standards to those applications for the
waiver of criminal grounds of inadmissibility made under section
212(h)(2) of the Act, including, but not limited to, adjustment of
status under section 586 of Pub. L. 106-429 or section 245(a) of the
Act (8 U.S.C. 1255(a)).
Similarly, one commenter requested that the final rule be amended
to clarify that the Attorney General is not compelled to grant any
available waiver of a ground of inadmissibility. Rather, stated the
commenter, all such grants fall within the discretion of the Attorney
General. Moreover, the commenter contended that the regulations should
be amended to state that the Attorney General will not grant waivers of
criminal grounds of inadmissibility to adjustment applicants under
section 209 of the Act who are convicted of aggravated felonies.
The Department agrees with the commenter that the Attorney General
has complete discretion to grant a waiver under section 209(c) of the
Act and section 212(h) of the Act. The Department also agrees that, in
general, individuals convicted of aggravated felonies would not warrant
the Attorney General's use of this discretion. In fact, the proposed
regulations stated that even if the applicant can meet the
``exceptional and extremely unusual hardship'' standard for the
exercise of discretion, depending upon the severity of the offense,
this might ``still be
[[Page 78678]]
insufficient'' to obtain the waiver. See 67 FR at 45407. That language
would substantially limit the circumstances under which an individual
convicted of an aggravated felony would be granted a waiver as a matter
of discretion. Therefore, the Department believes that this language
achieves the goal of the commenter while not unduly constraining the
Attorney General's discretion to render waiver decisions on a case-by-
case basis.
Finally, one commenter stated that the final rule should clarify
that only the Immigration and Naturalization Service (``Service'') has
the discretionary authority to grant waivers under section 209(c) of
the Act, and not the Board of Immigration Appeals or Executive Office
for Immigration Review (EOIR). This is a matter outside the scope of
this rulemaking action because the proposed amendment to 8 CFR 212.7(d)
does not relate to the granting of waivers under section 209(c) of the
Act with regard to refugees. Nevertheless, the Department notes that it
does not agree with this comment. The Act and the Department's
regulations both provide the alien with the opportunity to renew his or
her application for adjustment in removal proceedings. See 8 CFR
209.1(e). Because the alien is renewing his or her case before the
immigration judge, the alien may seek the same waivers of grounds of
inadmissibility made available to him or her by the section of law
under which the application for adjustment of status was filed. See
Matter of H-N-, 22 I. & N. Dec. 1039 (BIA 1999).
The commenter is correct in that the Act does require the alien to
demonstrate that he or she is not inadmissible under section 212 of the
Act. See section 240(c)(2) of the Act (8 U.S.C. 1229a(c)(2)). However,
the waiver available at section 209(c) of the Act (8 U.S.C. 1159(c))
provides a means for eligible aliens, in the discretion of the Attorney
General, to obtain a waiver of certain grounds of inadmissibility. See
section 209(c) of the Act. As such, these waivers are available to an
alien seeking to demonstrate that he or she is not inadmissible before
the Service and in immigration proceedings.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (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. This rule only
affects aliens who are subject to inadmissibility on criminal grounds
by amending Department of Justice standards for waivers of the criminal
grounds for inadmissibility for immigrants under section 212(h) of the
Act. This rule will have no effect on 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 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 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. 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 the United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.
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
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Pub. L. 104-17, all
departments are required to submit to the Office of Management and
Budget, for review and approval, any reporting requirements inherent in
a final rule. This rule does not impose any new reporting or
recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects in 8 CFR Part 212
Administrative practice and procedure, Aliens, Passports and visas,
Immigration, Reporting and recordkeeping requirements.
Accordingly, part 212 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. 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; 8 CFR part 2.
2. Section 212.7(d) is added, to read as follows:
Sec. 212.7 Waiver of certain grounds of inadmissibility.
* * * * *
(d) Criminal grounds of inadmissibility involving violent or
dangerous crimes. The Attorney General, in general, will not favorably
exercise discretion under section 212(h)(2) of the Act (8 U.S.C.
1182(h)(2)) to consent to an application or reapplication for a visa,
or admission to the United States, or adjustment of status, with
respect to immigrant aliens who are inadmissible under section
212(a)(2) of the Act in cases involving violent or dangerous crimes,
except in extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an alien
clearly demonstrates that the denial of the application for adjustment
of status or an immigrant visa or admission as an immigrant would
result in exceptional and extremely unusual hardship. Moreover,
depending on the gravity of the alien's underlying criminal offense, a
showing of extraordinary circumstances might still be insufficient to
warrant a favorable exercise of discretion under section 212(h)(2) of
the Act.
Dated: December 19, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-32606 Filed 12-24-02; 8:45 am]
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