[Federal Register Volume 59, Number 57 (Thursday, March 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6993]


[[Page Unknown]]

[Federal Register: March 24, 1994]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1344-91; AG Order No. 1856-94]
RIN 1115-AC90

 

Mariel Cuban Parole Determinations

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule clarifies and expands the discretionary authority of 
the Immigration and Naturalization Service (the Service), under the 
Cuban Review Plan, to withdraw parole approval for excludable Mariel 
Cubans where circumstances make it impossible to execute the parole 
decision, and release of the detainee is contrary to the public 
interest. It further provides for flexibility in the scheduling of 
parole reviews in the case of a new or returning Mariel Cuban detainee 
whose previous immigration parole has been revoked. These changes are 
necessary to reduce administrative costs and to clarify the status of 
the detainee whose parole decision cannot be implemented.

EFFECTIVE DATE: March 24, 1994.

FOR FURTHER INFORMATION CONTACT:
Joan Lieberman, Assistant General Counsel, Office of the General 
Counsel, Immigration and Naturalization Service, 425 I Street, NW., 
room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: On May 7, 1991, a proposed rule to amend 8 
CFR 212.12(e) and 212.12(g)(1), with request for public comments, was 
published in the Federal Register, at 56 FR 21100. The comment period 
expired on June 6, 1991. The Service received four comments, 
representing the views of an alien advocacy organization, a Federal 
Government agency, and private attorneys. The Service greatly 
appreciates these comments. Each comment has been considered and some 
aspects of the comments have been taken into account in this rule.
    This rule will revise and expand the discretionary authority of the 
Service under 8 CFR part 212 to withdraw parole approval previously 
authorized for excludable Mariel Cubans where circumstances warrant a 
reversal of the parole approval decision. The proposed changes amend 
the current regulation, which does not provide the cases where 
sponsorship is declined or appropriate sponsorship is unavailable. The 
amendments clarify the authority of the Associate Commissioner for 
Enforcement to withdraw parole of a detainee prior to release for any 
appropriate reason, not merely because of the detainee's conduct. 
Finally, the proposed changes will provide for greater flexibility in 
the parole review process for Mariel Cubans who are subject to 
repatriation.
    Only one comment was received on the proposed amendment to 8 CFR 
212.12(g)(1). That comment suggested word changes to the proposed 
amendment. The suggested change has been incorporated in the final 
rule, which replaces the phrase ``if such detainee's return to Cuba has 
been negotiated'' with ``if such detainee's prompt deportation is 
practicable and proper.''
    The remainder of the comments addressed the proposed changes to 8 
CFR 212.12(e). One commenter indicated that the detainee should not be 
advised of a release decision if the Service is aware that the few 
programs that are available for the placement of released detainees 
will not accept those detainees. Unfortunately, this situation may 
arise despite Service efforts to prevent its occurrence. It is beyond 
the scope of this rule to address that issue. However, one commenter 
suggested that the panels making release decisions should be informed 
of the criteria used by the Community Relations Service and the Public 
Health Service in determining whether an individual is suitable for 
their programs. The Service has and will continue to address this issue 
with the review panels.
    Two commenters expressed concern that those making the placement 
decisions sometimes rely on incomplete, outdated, or inaccurate 
information. The Service attempts throughout the parole process to 
obtain updated, accurate information and to make reasonable efforts to 
identify suitable sponsorship opportunities, as described in 8 CFR 
212.12(f). For example, detainees are asked at the time of each panel 
interview for the names of potential sponsors. In order to further 
address this concern, however, the Service, where appropriate, may 
extend an additional opportunity to detainees to demonstrate that there 
are unexplored reasonable sponsorship alternatives.
    One commenter asserted that the proposed rule was too broad in 
scope. The commenter also faulted the proposal because it does not 
require the Service to notify detainees of the reasons for withdrawal 
of parole approval, and advise them of what efforts had been made to 
secure sponsorship. Furthermore, the commenter objected that the 
proposed rule does not provide detainees with an opportunity to secure 
appropriate sponsorship. The Service has attempted to provide such 
notification whenever possible in cases where suitable sponsorship has 
not been located. Such notification specifies what sponsorship efforts 
have been made and the results of each attempt to secure suitable 
sponsorship. Where appropriate, detainees may be provided with the 
opportunity to submit evidence of appropriate sponsorship prior to 
withdrawal of parole approval. Further, if the detainee's parole 
approval is withdrawn, he or she will continue to receive a yearly 
interview at which time he or she may advise the Service of any 
sponsorship opportunities.
    This same commenter also asserted that the proposed rule fails to 
provide independent review of the decision to repatriate an eligible 
detainee. It is beyond the scope of this regulation to address that 
issue. This rule deals solely with parole of Mariel Cubans, rather than 
repatriation procedures and determinations.
    One commenter contended that the Associate Commissioner for 
Enforcement should not be permitted to withdraw parole approval for 
reasons that do not relate to the established guidelines for parole 
release. However, the revocation authority exercised pursuant to 8 CFR 
212.12(e) is identical to that which was granted by the Attorney 
General to the Departmental Panels in 8 CFR 212.13. The ultimate 
criteria for the Associate Commissioner for Enforcement to follow in 
determination of parole release under both 8 CFR 212.12(e) and 212.13 
is set forth in section 212(d)(5)(A) of the Immigration and Nationality 
Act, 8 U.S.C. 1182(d)(5)(A). When a detainee cannot be sponsored by 
someone who can help him or her integrate into the community, that fact 
is a significant consideration in determining whether the detainee's 
release on parole is in the public interest. Without an appropriate 
support system, vocational training, and essential social skills, the 
detainee will be unable in many instances to maintain acceptable 
behavior upon release. This difficulty is recognized in 8 CFR 
212.12(f), which prohibits release without suitable sponsorship or 
placement. The Service is committed to the task of locating suitable 
placement for each detainee whose release has been approved. However, 
administration of the Cuban Review Program has been severely 
handicapped by cases where suitable placement cannot be secured. In 
such cases, the detainee remains in custody without any resolution of 
his or her status. In sponsorship problem cases, parole approval will 
be withdrawn only after reasonable efforts to secure appropriate 
placement and after the detainee, where appropriate, has been afforded 
an opportunity to demonstrate reasonable sponsorship alternatives. The 
current process does not preclude the detainee from offering 
sponsorship alternatives. In fact, many detainees do suggest 
sponsorship possibilities, particularly family sponsors, some of which 
may ultimately be selected for placement. The Service retains final 
authority to evaluate sponsorship alternatives and to determine whether 
release of a detainee is in the public interest.
    Several commenters also expressed the hope that exhaustive efforts 
to locate appropriate sponsorship should be made to ensure that those 
detainees who have been approved for release are actually released from 
custody. As indicated, the Service will make reasonable efforts to 
ensure appropriate placement for each detainee approved for release.
    One of these commenters also maintained that it is inappropriate to 
withdraw parole approval without a hearing. The Service disagrees. See 
Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991), cert. 
denied, 113 U.S. 127 (1992); Fernandez-Roque v. Smith, 734 F.2d 576, 
582 (11th Cir. 1984). These court decisions establish that withdrawal 
of parole approval can be accomplished without a hearing. Nevertheless, 
in cases of sponsorship problems, it is in the Government's best 
interest to explore alternatives in order to reduce detention costs and 
to ensure the safe release of an individual into the community. 
Detainees are encouraged to submit sponsorship alternatives to the 
Associate Commissioner for Enforcement, as appropriate.
    Where the Associate Commissioner for Enforcement determines that 
the inability to secure sponsorship is the sole reason behind 
withdrawal of parole approval, he may, in the exercise of discretion, 
give the detainee notice of that fact and the opportunity to present 
proposals for appropriate placement. This authority is made 
discretionary with the Associate Commissioner for Enforcement to allow 
for cases where it would be inappropriate to delay the decision to 
withdraw parole approval, such as where the detainee has previously 
provided erroneous or inappropriate information relating to 
sponsorship.
    The Service benefits from the detainee's submission of reasonable 
sponsorship alternatives by the potential for reduction in detention 
costs. This also may assist the Service in securing the detainee's 
release pursuant to the initial grant of parole approval. The 
sponsorship area is particularly amenable to input from the detainee, 
who may be able to provide information of reasonable sponsorship 
opportunities otherwise unknown to the Service. The detainee's 
participation in the placement process will help ensure that no 
detainee who is approved for parole continues in custody where suitable 
sponsorship is available and where identifying that sponsorship is the 
only issue remaining in obtaining release to the community.
    An opportunity for the detainee to present information to the 
Associate Commissioner for Enforcement prior to withdrawal of parole 
approval is only appropriate where the sole grounds for revocation is 
the Service's inability to locate appropriate sponsorship. Under these 
narrow circumstances, it may prove beneficial to solicit any 
information the detainee possesses in order to implement the parole 
decision. Where the detainee's parole has been revoked for other 
reasons, it would be inappropriate and contrary to the public interest 
to delay the revocation decision in order to solicit information from 
the detainee. For example, in cases where the misconduct of the 
detainee is the cause of revocation of parole approval, immediate 
action is required in the interest of public safety.
    One commenter was concerned that the proposed rule change could 
have a major impact on future political events involving the 
relationship between the Governments of the United States and Cuba. 
This issue is beyond the scope of this rule. Should the Cuban Review 
Plan be substantially changed or abolished, such action will be 
published, as appropriate, in the Federal Register.
    One commenter expressed the view that insufficient programs exist 
as alternatives to detention. It is beyond the scope of this rule to 
address this issue. It should be noted, however, that the Department 
continues to work with other government agencies and private enterprise 
to develop additional programs.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule will not have a significant adverse economic impact on a 
substantial number of small entities. The rule affects only a class of 
Cuban Nationals in their individual capacity who are in the custody of 
the Attorney General and will have no impact on small entities.
    This rule has not been reviewed by the Office of Management and 
Budget pursuant to Executive Order 12866. This rule does not have 
Federalism implications warranting the preparation of a Federal 
Assessment in accordance with Executive Order 12612.

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Detention, 
Immigration, Parole, Passports and visas, 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 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227, 1228, 1252; and 8 CFR part 2.

    2. Section 212.12 is amended by revising paragraph (e), and by 
adding a new sentence at the end of paragraph (g)(1), to read as 
follows:


Sec. 212.12  Parole determinations and revocations respecting Mariel 
Cubans.

* * * * *
    (e) Withdrawal of parole approval. The Associate Commissioner for 
Enforcement may, in his or her discretion, withdraw approval for parole 
of any detainee prior to release when, in his or her opinion, the 
conduct of the detainee, or any other circumstance, indicates that 
parole would no longer be appropriate.
* * * * *
    (g) * * *
    (1) * * * In the case of a Mariel Cuban who is in the custody of 
the Service, the Cuban Review Plan Director may, in his or her 
discretion, suspend or postpone the parole review process if such 
detainee's prompt deportation is practicable and proper.
* * * * *
    Dated: March 15, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-6993 Filed 3-23-94; 8:45 am]
BILLING CODE 4410-10-M