[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Proposed Rules]
[Pages 30188-30189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15169]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 /
Proposed Rules
[[Page 30188]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 1732-95]
RIN 1115-AE17
Conditions on Nonimmigrant Status: Disclosure of Information
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service (``the Service'') regulations by removing the current
regulatory language conditioning an alien's nonimmigrant status on his
or her providing full and truthful information requested by the
Service, regardless of the requested information's materiality. This
proposed regulation would clarify that a nonimmigrant's maintenance of
status is conditioned on, among other things, the provision of all
information deemed necessary to ensure that the alien has acquired, and
is maintaining, lawful nonimmigrant status during the entire period of
his or her stay, or that the alien is eligible to receive a benefit
under the Immigration and Nationality Act (``the Act''). This rule
addresses the concern expressed by the court in Romero v. I.N.S., 39
F.3d 977 (9th Cir. 1994), that, under the current wording of the
regulations, the Service may elicit information unrelated to that
required to ensure the alien's continued eligibility for nonimmigrant
status or benefits under the Act.
DATES: Written comment must be submitted on or before August 13, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536, Attention: Public Comment Clerk. To ensure proper handling,
please reference INS Number 1732-95 on your correspondence.
FOR FURTHER INFORMATION CONTACT: Miriam Jawitz Hetfield, Senior
Adjudications Officer, Nonimmigrant Branch, Immigration and
Naturalization Service, Room 3214, 425 I Street, NW., Washington, DC
20536, telephone: (202) 514-5014.
SUPPLEMENTARY INFORMATION: Section 214(a)(1) of the Act provides that
the Attorney General may by regulation prescribe the length and the
conditions of a nonimmigrant alien's stay, in order to ensure that the
nonimmigrant will depart from the United States at the expiration of
the period of admission or upon failure of the nonimmigrant to maintain
nonimmigrant status. Under section 241(a)(1)(C)(i) of the Act, a
nonimmigrant who fails to maintain nonimmigrant status, or to comply
with the conditions of such status, is deportable.
Under current 8 CFR 214.1(f), a condition of an alien's
nonimmigrant status is that he or she provide full and truthful
information requested by the Service, ``regardless of whether or not
the information requested was material.'' The Service promulgated this
regulation to ensure that it is furnished with the information
necessary to perform its statutory function of regulating the admission
and control of nonimmigrants, to ensure compliance with the Act, and to
locate and deport those nonimmigrant aliens who have violated their
status. 44 FR 65726-65727. It was the opinion of the Service, in
promulgating this regulation, that, to meet this responsibility, it is
necessary to have information which ``possibly may not be considered
material in the strict legal connotation of the term.'' Id. at 44 FR
65727. Despite such broad language, the current regulation was intended
to require the provision of only information bearing a reasonable
relationship to the Service's above-described responsibility in
prescribing the conditions of a nonimmigrant's stay. Id.
On November 3, 1994, the court in Romero v. I.N.S., 39 F.3d 977
(9th Cir. 1994), invalidated the parenthetical phrase in current 8 CFR
214.1(f), ``(regardless of whether or not the information requested was
material).'' In Romero, the Service charged the plaintiff with
violating section 241(a)(1)(C)(i) of the Act for failing to maintain
nonimmigrant status, contending that she had not disclosed certain
information requested by a Service officer. Specifically, in response
to a question by a Service officer, the plaintiff stated that she had
not informed another alien that someone could help that alien obtain an
extension of nonimmigrant status for money. The Service officer sought
this information in connection with an investigation of alleged
corruption among customs officers. The immigration court found that, in
making this statement, the plaintiff had provided a Service officer
with false information in violation of 8 CFR 214.1(f), and therefore
was deportable under section 241(a)(1)(C)(i) of the Act. In ordering
that the case be remanded for withdrawal of the order of deportation,
the Romero court found that the statement the plaintiff made to the
Service officer was not material in any way to the alien's immigration
status, but related only to a criminal investigation of other persons.
The court held that, as currently worded, the disclosure requirement of
8 CFR 214.1(f) is inconsistent with the purpose of the enabling
statute, section 214(a)(1) of the Act, which is to ensure that the
alien is eligible for nonimmigrant status or immigration benefits.
This proposed regulatory change would clarify that a nonimmigrant's
maintenance of status and/or continued receipt of immigration benefits
is conditioned on the alien fully and truthfully disclosing all
information he or she possesses, or reasonably should have knowledge
of, which the Service deems material in order to ensure that the alien
is eligible for nonimmigrant status and/or immigration benefits under
the Act. This regulation does not give the Service the authority to
require disclosure of information in the hope that it might uncover
information to be used for another purpose, such as an investigation of
another person or persons. For information to be deemed ``material''
for purposes of this regulation, there must exist a reasonable
connection between the information sought and the determination of
whether an alien is eligible under the Act for nonimmigrant status or
immigration benefits. In this regard. ``material'' information includes
that information which, if known to the Service, would be predictably
capable of
[[Page 30189]]
affecting a decision regarding whether an alien has violated a
condition of his or her nonimmigrant stay or eligibility for benefits.
See Kungys v. United States, 485 U.S. 759, 771 (1988).
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Commissioner of the
Immigration and Naturalization Service certifies that this rule will
not, if promulgated, have a significant adverse economic impact on a
substantial number of small entities. This rule merely clarifies that a
nonimmigrant's status in this country is conditioned on, among other
things, his or her providing full and truthful disclosure of all
information deemed necessary to ensure that the alien has acquired, and
is maintaining, lawful nonimmigrant status during the entire period of
his or her stay, or to ensure that the alien is eligible to receive any
other benefit under the Act. Any impact this proposed regulation will
have on small business entities, therefore, will be negligible.
Executive Order 12866
This proposed 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 12612
This regulation 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 Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federal
Assessment.
Paperwork Reduction Act
This rule contains information collection requirements which have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. The OMB control numbers for
these collections are contained in 8 CFR 299.5, Display of control
numbers.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Reporting and
recordkeeping requirements.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
2. In Sec. 214.1, paragraph (f) is revised to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(f) Disclosure of information. (1) A condition of a nonimmigrant's
admission and maintenance of status in the United States is that he or
she fully and truthfully disclose all information deemed by the Service
to be material in determining whether the nonimmigrant:
(i) Is eligible for, and/or is maintaining the nonimmigrant status
in which the alien was admitted or to which the alien has changed under
section 248 of the Act, or
(ii) Is eligible to receive any benefit under the Act.
(2) Willful failure by a nonimmigrant to provide full and truthful
disclosure of such material information when requested by a Service
officer constitutes a failure to maintain nonimmigrant status under
section 241(a)(1)(C)(i) of the Act.
* * * * *
Dated: March 4, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-15169 Filed 6-13-96; 8:45 am]
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