[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Rules and Regulations]
[Pages 29467-29469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13586]



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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 3
[EOIR No. 101F; AG Order No. 1970-95]
RIN 1125-AA05

Citizenship Requirement for Employment
AGENCY: Department of Justice.

ACTION: Final rule.
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SUMMARY: This final rule requires that employees hired by the Executive 
Office for Immigration Review (EOIR or Agency) be citizens of the 
United States of America. This rule exempts EOIR from the Immigration 
Reform and Control Act of 1986's general prohibition of discrimination 
based on citizenship status and supplements E.O. 11935, which requires 
United States citizenship for almost all Federal employees in the 
competitive service.

EFFECTIVE DATE: July 5, 1995.

FOR FURTHER INFORMATION CONTACT:
Gerald S. Hurwitz, Counsel to the Director, Executive Office for 
Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, 
Virginia 22041, Telephone: (703) 305-0470.

SUPPLEMENTARY INFORMATION: The Department of Justice published a 
proposed rule on October 27, 1994 (59 FR 53946) in order to exempt the 
Executive Office for Immigration Review (EOIR) from the general rule of 
the Immigration Reform and Control Act of 1986, 8 U.S.C. 1324b(a)(1) 
(IRCA), by invoking IRCA's provision for regulatory exception to the 
general rule, 8 U.S.C. 1324b(a)(2)(C). The proposed rule is corollary 
to E.O. 11935, 41 FR 37301 (1976), which requires United States 
citizenship for almost all Federal employees in the competitive 
service. The Agency did not receive any timely comments. One comment 
was received well after the closing date.
    The rule authorizes EOIR to require its employees and volunteers to 
be citizens of the United States of America. This rule will affect EOIR 
employees such as Immigration Judges, Board Members of the Board of 
Immigration Appeals and their legal staffs. The primary mission of 
these employees is to adjudicate or to facilitate the adjudication of 
immigration-related cases. Such Agency employees and volunteers often 
have access to sensitive information and handle complex and sensitive 
immigration issues. Furthermore, the citizenship requirement is 
designed to bolster public confidence in the proper administration of 
the country's immigration laws. It is imperative that individuals who 
work at EOIR, either as employees or volunteers, demonstrate their 
allegiance to the United States by being able to document that they are 
United States citizens.
    Pursuant to E.O. 11935, 41 FR 37301 (1976), the Executive Branch 
requires United States citizenship for employees hired in the 
competitive service. This rule extends the citizenship requirement to 
all EOIR employees and volunteers. The rule exempts EOIR from the 
prohibition of discrimination based on citizenship status, pursuant to 
the procedures established by IRCA. This Attorney General rule is 
consistent with E.O. 11935. The rule is an exercise of the Attorney 
General's authority to regulate the employment of sensitive, non-
competitive service Department of Justice employees.
    Additionally, this rule allows the Agency to exercise its 
discretion to hire non-citizens when necessary to accomplish the 
Agency's mission. For example, this rule would permit the Director of 
the Agency to authorize hiring an interpreter skilled in the English 
language and an unusual foreign language when a United States citizen 
interpreter is not available.
    This rule draws on well-established Supreme Court jurisprudence 
upholding the reservation of certain rights, such as the right to 
govern, to citizens. Foley v. Connelie, 435 U.S. 291 (1978) (affirming 
a requirement that police officers be citizens based on the precept 
that ``[t]he act of becoming a citizen is more than a ritual * * * [The 
citizen] is entitled to participate in the process of democratic 
decisionmaking. Id. at 295)''). See also Ambach v. Norwick, 441 U.S. 68 
(1979) (affirming a citizenship requirement for public school 
teachers). The Supreme Court recognized that a citizenship employment 
requirement is sometimes necessary in Bernal v. Fainter, 467 U.S. 216 
(1984), holding that, ``[s]ome public positions are so closely bound up 
with the formulation and implementation of self-government that the 
State is permitted to exclude from those positions persons outside the 
political community, hence persons who have not become part of the 
process of democratic self-determination.'' Id., at 221. The Bernal 
court relied on an [[Page 29468]] earlier Supreme Court case which held 
inter alia, ``Aliens are by definition those outside this [political] 
community.'' Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).
    The untimely comment received by the Agency objects to the rule on 
three grounds. The comment states that: (1) The rule is 
unconstitutional because Article III of the United States Constitution 
does not require Article III judges to be citizens; (2) the rule 
contravenes case law; and (3) the rule lacks a rational basis.
    After careful consideration of the comment, the Agency has decided 
not to follow the comment's suggestion that the rule be withdrawn or 
modified. The final rule retains the language of the proposed rule for 
the following reasons:
    (1) The absence of a citizenship requirement for Article III judges 
cannot be understood as a constitutional prohibition against a 
citizenship requirement for Executive Branch immigration judges.
    (2) These cases do not persuade the Agency that the rule needs 
modification. Three of the four cited cases pre-date IRCA but, even 
considered on the merits, these cases do not persuade the Agency that 
it needs to modify this rule. The three pre-IRCA cases cited are: 
Bernal v. Fainter, 467 U.S. 216 (1984) (strict scrutiny standards 
applies to state law distinction based on alienage except when laws 
exclude aliens from positions closely related to processes of 
democratic government); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) 
(rule imposing wholesale ban on aliens throughout the federal civil 
service was not justified by reasons within the authority of the Civil 
Service Commission to advance); and In Re Griffiths, 413 U.S. 717, 724 
(1973) (Connecticut's prohibition on aliens sitting for the bar 
violates equal protection because the authority of attorneys does not 
``involve matters of state policy or acts of such unique responsibility 
as to entrust them only to citizens,'' nor does practice of law offer 
``meaningful opportunities adversely to affect the interest of the 
United States'').
    The comment's reliance on Bernal versus Fainter is misplaced. As 
discussed above, the Bernal decision expressly states that it is 
appropriate to exclude non-citizens from some government employment. 
467 U.S. at 221.
    The comment's analysis of Hampton versus Mow Sun Wong is not 
persuasive either. At issue in Hampton was a Civil Service Commission 
regulation requiring civil servants to be United States citizens. 
Hampton held that a federal executive agency could discriminate on the 
basis of citizenship where there is a legitimate national interest for 
such discrimination. The Hampton court found that the rule at issue did 
not meet the legitimate national interest standard and therefore held 
the rule unconstitutional. In contrast to the Civil Service 
Commission's rule, the EOIR rule meets the Hampton standard. The 
national interest is served by ensuring that individuals who are 
involved in the adjudication of immigration-related cases are citizens. 
It is also noteworthy that subsequent to judicial invalidation of the 
Civil Service Commission rule requiring citizenship in Hampton, the 
identical requirement was put into place by Executive Order. E.O. 
11935, 41 FR 37301 (1976). The restriction barring noncitizens from 
employment in the federal competitive civil service, as authorized by 
the Executive Order, is still in effect.
    In Re Griffiths is inapposite to this rulemaking. Griffiths 
examined whether a state had the authority to ban non-citizens from the 
practice of law. In finding that such a ban violated the Equal 
Protection Clause of the Fourteenth Amendment, the Court found that the 
state had not meet its burden of showing that the classification was 
necessary to promote or safeguard the state's interest in the 
qualifications of those admitted to the practice of law. 413 U.S. at 
724-727. The practice of law, the Court found, does not involve matters 
of state policy or acts of such unique responsibility as to entrust 
them only to citizens. Furthermore, as stated in the decision, the 
practice of law does not offer meaningful opportunities adversely to 
affect the interest of the United States. Id. at 724. In contrast, EOIR 
employment frequently involves federal immigration matters which can 
impact national policy and affect the interest of the United States. 
Therefore, EOIR employment should be held exclusively by United States 
citizens.
    The fourth case cited by the comment, City of Orlando v. Florida, 
751 F. Supp. 974 (M.D. Fla. 1990), is also factually inapposite to this 
rulemaking. Orlando struck down that part of the state's loyalty oath 
requiring an affirmation of citizenship. Nonetheless, the Orlando court 
expressly held that, ``this ruling does not mean that the State cannot 
require citizenship of Florida and/or the United States in certain 
classes of employment; rather, it means only that citizenship cannot be 
a prerequisite to taking the loyalty oath given to all employees and 
officers of the State of Florida. * * *'' City of Orlando v. Florida, 
751 F. Supp. at 976. Since this rule does not require a loyalty oath, 
the narrow holding of City of Orlando does not inform this rulemaking.
    (3) The rule has a rationale, namely that individuals adjudicating, 
or assisting in the adjudication of, immigration laws should be able to 
demonstrate allegiance to this country by virtue of their citizenship, 
as addressed in more detail in other portions of the supplementary 
information.
    Insertion of this rule requires a slight reorganization of 8 CFR 
Part 3.
    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, 
certifies that this rule will not have a significant adverse economic 
impact on a substantial number of small entities. 5 U.S.C. 605(b).
    This rule has been drafted and reviewed in accordance with E.O. 
12866, section 1(b), Principles of Regulation. The Attorney General has 
determined that this rule is not a ``significant regulatory action'' 
under E.O. 12866, section 3(f), Regulatory Planning and Review, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.
    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 E.O. 12612, it is 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

List of Subjects in 8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 of title 8 is revised to read 
as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 
CFR, 1949-1953 Comp., p. 1002.

    2. Section 3.0 is amended by designating its existing text as 
paragraph (a), and adding a heading, and by adding paragraph (b) to 
read as follows:


Sec. 3.0  Executive Office for Immigration Review.

    (a) Organization. * * *
    (b) Citizenship Requirement for Employment. (1) An application to 
work [[Page 29469]] at the Executive Office for Immigration Review 
(EOIR or Agency), either as an employee or as a volunteer, must include 
a signed affirmation from the applicant that he or she is a citizen of 
the United States of America. Upon the Agency's request, the applicant 
must document United States citizenship.
    (2) The Director of EOIR may, by explicit written determination and 
to the extent permitted by law, authorize the appointment of an alien 
to an Agency position when necessary to accomplish the work of EOIR.

    Dated: May 23, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-13586 Filed 6-2-95; 8:45 am]
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