[Federal Register Volume 65, Number 63 (Friday, March 31, 2000)]
[Rules and Regulations]
[Pages 17127-17128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7963]



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 Rules and Regulations
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  Federal Register / Vol. 65, No. 63 / Friday, March 31, 2000 / Rules 
and Regulations  

[[Page 17127]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 340

[INS No. 1858-97]
RIN 1115-AF63


Revoking Grants of Naturalization

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations relating to administrative revocation of 
naturalization by changing the burden of proof the Service must satisfy 
in order to administratively revoke a grant of naturalization and 
clarifying the 180-day period for the rendering of the district 
director's decision. This rule clarifies these issues in the final rule 
that was published in the Federal Register on October 28, 1996, at 61 
FR 55550.

DATES: Effective date: This rule is effective March 31, 2000.
    Comment date: Written comments must be submitted on or before May 
30, 2000.

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 No. 1858-97 on 
your 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: Janice B. Podolny, Office of the 
General Counsel, Immigration and Naturalization Service, 425 I Street, 
NW, Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: Section 310(a) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 1421(a), gives the Attorney General 
the sole authority to grant a person naturalization as a United States 
citizen. As a concomitant to the authority under section 310(a), 
section 340(h) of the Act, 8 U.S.C. 1451(h), preserves the Attorney 
General's authority to ``correct, reopen, alter, modify, or vacate an 
order naturalizing [a] person'' as a United States citizen. On October 
28, 1996, the Service published a final rule in the Federal Register at 
61 FR 55550 promulgating regulations at 8 CFR 340.1, to provide a 
regulatory procedure for exercising this authority.
    The Service's final rule provided that the Service could reopen a 
naturalization proceeding and revoke naturalization if the Service 
obtained ``credible and probative evidence'' that the individual's 
naturalization was subject to revocation. The regulation provided that 
after this initial showing by the Service, the burden of proof shifted 
to the individual whose naturalization was subject to revocation to 
establish that he or she was, in fact, eligible for naturalization. The 
Service, however, determined that it would adhere to the higher 
standard of proof applicable in judicial denaturalization proceedings, 
rather than the credible and probative standard. Accordingly, the 
Service has only initiated revocation proceedings where it has obtained 
clear, unequivocal, and convincing evidence and has revoked 
naturalization only in cases where the Service is able to sustain this 
burden throughout the administrative proceeding.
    Consistent with this approach, the Service has made every effort, 
including review of all proposed revocation cases at the Headquarters 
level, to ensure that revocation of naturalization be pursued only if 
the evidence meets this higher standard. This interim rule changes the 
applicable burden of proof to conform with Service practice. This 
interim rule provides that the Service will only initiate revocation 
proceedings based on clear unequivocal, and convincing evidence with 
the burden of proof remaining with the Service throughout the 
administrative process. If it comes to the attention of the Service 
that in any case that became final before March 31, 2000, the Service 
relied on the lower standard of proof, the Service will, on its own 
motion, reconsider the decision under the clear, unequivocal, and 
convincing standard of proof.
    In addition, this interim rule clarifies that the expiration of the 
180-day period for the district director's decision does not preclude 
the district director from making a final decision on the merits. 
Consequently, this interim rule indicates that the Service should, 
where practicable, render a decision within 180 days of service of the 
notice of intent to reopen naturalization proceedings and to revoke 
naturalization. This ensures that the Service is able to carefully 
review all of the evidence in every administrative revocation case and 
render a correct decision without overly rigid and artificial time 
restrictions. Since this naturalized citizen continues to enjoy the 
rights of citizenship until the decision to reopen and revoke 
naturalization becomes administratively final, this amendment does not 
adversely affect the rights of the naturalized citizen.

Notice and Comment

    Since this regulation simply restates the higher burden of proof 
that the Service has been applying in administrative revocation 
proceedings, this rule is a general statement of policy. The change to 
the 180-day period to render a decision is an interpretative rule of 
agency practice and procedure. The Service, therefore, has authority 
under 5 U.S.C. 553 to adopt this rule without prior notice and comment. 
The Commissioner, nevertheless, considers it appropriate to seek public 
comments on this rule, and has established a 60-day comment period.
    Despite the comment period, this rule is an interim rule that will 
enter into force upon publication in the Federal Register. Because the 
current 8 CFR 340.1 places the burden of proof on the naturalized 
citizen, naturalized citizens may, in good faith, misunderstand the 
evidentiary standards and procedural requirements that the Service must 
satisfy in order to reopen and revoke a grant of naturalization. The 
Service has already ensured that each notice of intent to reopen 
naturalization proceedings and to revoke naturalization states the 
burden of proof as clear, unequivocal, and convincing

[[Page 17128]]

evidence. By clarifying the burden of proof that the Service has been 
adhering to in practice, this interim rule provides full protection of 
the naturalization citizen's rights. For this reason, the Commissioner 
finds that it would be contrary to the public interest for the Service 
to observe the 30-day delay that must ordinarily apply before a new 
regulation may enter into force. The Commissioner, therefore, also 
finds that good cause exists for making this rule effective upon 
publication in the Federal Register.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule proposes a procedure for the Service to 
revoke grants of naturalization. The affected parties are not small 
entities, and the impact of the regulation is not an economic one.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure, in the aggregate, of 
$100 million of more in any 1 year, by State, local, and tribal 
government, or by the private sector, and the rule will not 
significantly or uniquely affect small government. 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 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in cost or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Office of Management and Budget to 
be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review. Accordingly, the Service 
has submitted this regulation to the Office of Management and Budget 
for review.

Executive Order 13132

    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 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 Civil Justice Reform

    This rule meets the applicable standards provided in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

List of Subjects in 8 CFR Part 340

    Citizenship and naturalization, Law enforcement.

    Accordingly, part 340 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

    1. The authority citation for part 340 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1443.

    2. Section 340.1 is amended by:
    a. Revising paragraph (a) introductory text;
    b. Revising paragraph (b)(6); and by
    c. Revising paragraph (d)(1), to read as follows:


Sec. 340.1  Reopening of a naturalization application by a district 
director pursuant to section 340(h) of the Act.

    (a) Reopening general. On its own motion, the Service may reopen a 
naturalization proceeding and revoke naturalization in accordance with 
this section, if the Service obtains clear, convincing, and unequivocal 
evidence which:
* * * * *
    (b) * * *
    (6) Burden of proof. Upon service of a notice of intent to reopen 
naturalization proceedings and to revoke naturalization, the Service 
bears the burden of proof by clear, convincing, and unequivocal 
evidence that the grounds for reopening and revoking set forth in the 
notice have been met.
* * * * *
    (d) * * *
    (1) The district director shall render, where practicable, a 
written decision on the reopened naturalization application within 180 
days of service of the notice of intent to reopen naturalization 
proceedings and to revoke naturalization. The decision shall consist of 
findings of fact, conclusions of law, and a final determination on the 
naturalization application. Notice of decision shall be served on the 
applicant or his or her attorney or representative, if applicable.
* * * * *

    Dated: March 24, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-7963 Filed 3-30-00; 8:45 am]
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