[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48405-48406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23491]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

28 CFR Part 0

[INS No. 1791-96; AG Order No. 2055-96]
RIN 1115-AE50


Agreements Promising Non-Deportation or Other Immigration 
Benefits

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule requires Federal prosecutors, law 
enforcement agencies, and other officials to obtain written consent 
from the Immigration and Naturalization Service (Service) when entering 
into a plea agreement, cooperation agreement, or similar agreement 
promising an alien favorable treatment by the Service. This rule 
ensures that favorable treatment under the immigration laws is extended 
only after a full consideration of its effect on overall immigration 
enforcement, alleviates confusion over the authority to enforce the 
immigration laws, and prevents the Service from being bound by 
agreements undertaken without its knowledge and approval. The rule 
codifies a long-standing position of the Department of Justice.

DATES: This interim rule is effective October 15, 1996. Written 
comments must be submitted on or before November 12, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 ``I'' Street NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS number 1791-96 
on all correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
Brad Glassman, Office of the General Counsel, Immigration and 
Naturalization Service, 425 ``I'' Street NW., Room 6100, Washington, DC 
20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: Considerable uncertainty has arisen as to 
whether plea agreements, cooperation agreements, and other agreements 
undertaken by agencies other than the Immigration and Naturalization 
Service (Service) may bind the Service in the exercise of its authority 
under the immigration laws. The Supreme Court has held that ``anyone 
entering into an agreement with the Government takes the risk of having 
accurately ascertained that he who purports to act for the Government 
stays within the bounds of his authority.'' Federal Crop Ins. Corp. v. 
Merrill, 332 U.S. 380, 384 (1947). Accordingly, the Eleventh Circuit 
has held that ``officials at the INS may initiate deportation 
proceedings against a particular defendant without considering whether 
(a) * * * U.S. Attorney has promised the defendant non-deportation as 
part of a plea agreement.'' San Pedro v. United States, 79 F.3d 1065, 
1071 (11th Cir. 1996).
    However, two United States Courts of Appeals have taken a different 
view, relying on common law agency principles to enforce a plea 
agreement and a cooperation agreement against the Service. Margalli-
Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (plea agreement); Thomas v. 
INS, 35 F.3d 1332 (9th Cir. 1994) (cooperation agreement). This rule 
will clarify which components within the Department of Justice have 
authority to bind the Department in matters concerning the immigration 
laws. The consent requirement ensures that favorable treatment under 
the immigration laws is extended only after a full consideration of its 
effect on overall immigration enforcement, preserves the authority of 
the Service to enforce the immigration laws, and prevents the Service 
from being bound by agreements undertaken without its knowledge and 
approval. Cf. Thomas, 35 F.3d at 1341 (``If the Attorney General wished 
to limit the incidental authority of United States Attorneys [to bind 
the Service without its consent], she could easily do so with a section 
in the Code of Federal Regulations * * *.''). This rule codifies a 
long-standing position of the Department of Justice.
    The Attorney General's implementation of this rule as an interim 
rule, with provision for post-promulgation public comment, is based 
upon the exception found at 5 U.S.C. 553(b)(3)(A) for ``rulers of 
agency organization, procedure, or practice.'' The Attorney General 
certifies, in accordance with 5 U.S.C. 605(b) (1995), that this rule 
does not have a significant adverse economic impact on a substantial 
number of small entities. This rule is not considered to be a 
``significant regulatory action'' within the meaning of E.O. 12866, 
section 3(f), and accordingly has not been reviewed by the Office of 
Management and Budget. This rule is not considered to have federalism 
implications warranting the preparation of a Federalism Assessment in 
accordance with E.O. 12612.

[[Page 48406]]

List of Subjects in 28 CFR Part 0

    Authority delegations (government agencies), Government employees, 
Organization and functions (government agencies), Whistleblowing.

    Accordingly, part 0 of chapter I of Title 28 of the Code of Federal 
Regulations is amended as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

    1. The authority citation for Part 0 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

    2. In part 0, subpart CC, a new Sec. 0.197 is added to read as 
follows:


Sec. 0.197  Agreements, in connection with criminal proceedings or 
investigations, promising non-deportation or other immigration 
benefits.

    The Immigration and Naturalization Service (Service) shall not be 
bound, in the exercise of its authority under the immigration laws, 
through plea agreements, cooperation agreements, or other agreements 
with or for the benefit of alien defendants, witnesses, or informants, 
or other aliens cooperating with the United States Government, except 
by the authorization of the Commissioner of the Service or the 
Commissioner's delegate. Both the agreement itself and the necessary 
authorization must be in writing to be effective, and the authorization 
shall be attached to the agreement.

    Dated: September 9, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-23491 Filed 9-12-96; 8:45 am]
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