[Federal Register Volume 67, Number 248 (Thursday, December 26, 2002)]
[Rules and Regulations]
[Pages 78675-78678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32606]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 2249-02; AG Order No. 2641-2002]
RIN 1115-AG90


Waiver of Criminal Grounds of Inadmissibility for Immigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: On July 9, 2002, the Department of Justice published a 
proposed rule to implement a law authorizing the adjustment of status 
for certain aliens from Cambodia, Vietnam, and Laos, and to codify the 
Attorney General's approach to granting waivers under section 212(h) of 
the Immigration and Nationality Act of the criminal grounds of 
inadmissibility. This rule amends the Department of Justice regulations 
concerning the standards for waivers of the criminal grounds of 
inadmissibility for immigrants and responds to public comments on the 
notice of proposed rulemaking published on July 9, 2002. In order to 
allow the public an additional opportunity for public comment on this 
change in the regulations, this rule is being published as an interim 
final rule with a further 30-day comment period.

DATES: Effective date: This rule is effective January 27, 2003.
    Comment date: Written comments must be submitted on or before 
January 27, 2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference INS Number 2249-02 on the correspondence. 
Comments may also be submitted electronically at [email protected]. 
When submitting comments electronically, include INS No. 2249-02 in the 
subject box so that the comments can be properly routed to

[[Page 78676]]

the appropriate office. Comments are available for public inspection at 
the above address by calling (202) 514-3291 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Michael Valverde, Residence and Status 
Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 
3214, Washington, DC 20536, Telephone (202) 514-4754.

SUPPLEMENTARY INFORMATION: On July 9, 2002, the Department of Justice 
published a proposed rule in the Federal Register at 67 FR 45402 to 
implement section 586 of Pub. L. 106-429, 8 U.S.C. 1255 note, and to 
amend the regulations concerning waivers of the criminal grounds of 
inadmissibility for immigrants, with a 60-day period for public 
comment. Section 586 provides for adjustment of status to that of 
lawful permanent resident for 5,000 eligible natives or citizens of 
Vietnam, Cambodia, and Laos who were paroled into the United States 
before October 1, 1997, and otherwise meet the standards of the law.
    Many provisions of the proposed rule dealt with the process for 
eligible aliens to apply for adjustment of status under section 586, 
including the means for applicants to demonstrate that they were 
physically present in the United States on October 1, 1997. The 
Department is finalizing those provisions of that proposed rule in a 
separate rule published elsewhere in this issue of the Federal 
Register.
    The procedures for implementing section 586 was not the only issue 
addressed in the proposed rule. In addition, the proposed rule 
addressed at some length the related issue of the standards for 
granting waivers of the criminal grounds of inadmissibility for 
immigrants under section 212(h) of the Immigration and Nationality Act 
(``Act'') (8 U.S.C. 1182(h)). See 67 FR at 45404, 45407.
    Although section 586(c) provides that four grounds of 
inadmissibility do not apply, and provides special rules for waivers of 
several other grounds, section 586 does not mention the availability of 
waivers for criminal aliens. Even so, the Department has determined 
that criminal aliens who are inadmissible under section 212(a)(2) of 
the Act (8 U.S.C. 1182(a)(2)) may apply for a waiver under section 
212(h) of the Act. The Department is aware that many aliens who might 
otherwise be eligible under section 586 are inadmissible on criminal 
grounds.
    The Attorney General has determined to exercise the discretion 
accorded to him under section 212(h) of the Act in connection with 
applicants under section 586. Because section 212(h) of the Act is a 
general provision applicable to waivers for immigrants, it is 
appropriate to adopt standards for the exercise of discretion in all 
cases under section 212(h) of the Act, rather than creating a new 
standard applicable only to the Indochinese population covered by 
section 586. As was made clear in the title of the July 2002 proposed 
rule, and in the supplementary information for that rule as well as the 
proposed regulatory text, the proposed amendment to Sec.  212.7(d), 
regarding the exercise of discretion under section 212(h) of the Act, 
was applicable to all aliens seeking waivers under the latter 
provision.
    In response to the July 9, 2002, proposed rule, one commenter urged 
that the Department address the amendment to Sec.  212.7(d) in a 
separate rule, because that regulatory change is applicable to all 
immigrants seeking a waiver of the criminal grounds of inadmissibility. 
The Department believes that this issue is linked to the implementation 
of the adjustment provisions in section 586 and that both changes need 
to be made at the same time. However, in addressing the two sets of 
issues, the Department has agreed to promulgate the amendment to Sec.  
212.7(d) in a separate, companion rulemaking. Although for 
administrative purposes this interim final rule has been assigned a 
different tracking number (RIN) than the July 9, 2002, proposed rule, 
this interim final rule is adopting in final form the proposed 
amendment to Sec.  212.7(d) that was set forth in the July 2002 
proposed rule. This rule will take effect 30 days after publication in 
the Federal Register. It is being issued as an interim rule for the 
purpose of soliciting additional public comment. After consideration of 
these additional public comments, the Department will publish a final 
rule.
    In the final rule implementing section 586 (published elsewhere in 
this issue of the Federal Register), the Department has responded to 
many of the public comments regarding the availability of waivers of 
inadmissibility to eligible Indochinese applicants for adjustment of 
status under section 586. The following discussion responds to the 
public comments that related specifically to the amendment to Sec.  
212.7(d) with respect to the Attorney General's exercise of discretion 
under section 212(h) of the Act to waive the criminal grounds of 
inadmissibility for any alien applying or reapplying for a visa, 
seeking admission to the United States, or seeking adjustment of status 
to that of an alien admitted for permanent residence.

Comments Regarding the Exercise of Discretion Under Section 212(h) of 
the Act

The Proposed Regulations Are Outside of the Authority of the Department

    Several commenters argued that the Attorney General does not have 
the authority to adopt the standard at 8 CFR 212.7(d) regarding waivers 
of the criminal grounds of inadmissibility under section 212(h) of the 
Act.
    To the contrary, the Attorney General does have the authority to 
establish, by regulation, standards for the exercise of discretion 
under section 212(h) of the Act. Section 212(h)(1) of the Act requires 
a waiver applicant to establish, to the satisfaction of the Attorney 
General, one of the eligibility criteria set forth in that provision. 
Once the applicant has established his or her threshold eligibility, 
the Attorney General must then determine, under section 212(h)(2) of 
the Act, whether to grant the waiver. This determination is in the sole 
discretion of the Attorney General. Moreover, the Attorney General has 
the authority to decide when and how this discretion will be exercised. 
Section 212(h)(2) of the Act provides that the Attorney General may 
grant a waiver if he, ``in his discretion, and pursuant to such terms, 
conditions and procedures as he may by regulations prescribe, has 
consented to the alien's applying or reapplying for a visa, for 
admission to the United States, or adjustment of status.'' 8 U.S.C. 
1182(h)(2) (emphasis added).
    This interim rule, at 8 CFR 212.7(d), sets forth a general rule for 
when the Attorney General will exercise his discretion pursuant to his 
authority under section 212(h)(2) of the Act. Except in extraordinary 
circumstances, the Attorney General will not exercise discretion in 
favor of an applicant where the application involves a violent or 
dangerous crime. Extraordinary circumstances include situations where 
the alien has established exceptional and extremely unusual hardship, 
or situations where there are overriding national security or foreign 
policy considerations. Moreover, depending on the nature and severity 
of the underlying offense that renders the applicant inadmissible, the 
Attorney General retains the discretion to determine that the mere 
existence of extraordinary circumstances is insufficient to warrant the 
grant of a waiver. This standard was set forth in Matter of Jean, 23 I. 
& N. Dec. 373 (A.G. 2002), in the context of a discretionary waiver 
under section 209(c) of the Act (8 U.S.C. 1159(c)) pertaining to 
refugees,

[[Page 78677]]

and for applicants for asylum under section 208 of the Act (8 U.S.C. 
1158).
    With this interim rule, the Department is now codifying these same 
principles in connection with other aliens who seek discretionary 
relief under section 212(h) of the Act from the criminal grounds of 
inadmissibility. This interim rule extends the standard the Attorney 
General articulated in Matter of Jean and makes it applicable to 
criminal aliens applying or reapplying for a visa, seeking admission to 
the United States, or seeking adjustment of status. This action is in 
accord with the provisions of section 212(h)(2) of the Act, which 
provides that the Attorney General has authority by regulation to set 
standards for discretion for aliens seeking waivers for the criminal 
grounds of inadmissibility.
    One of the threshold bases for establishing eligibility for a 
waiver under section 212(h) of the Act is to demonstrate ``to the 
satisfaction of the Attorney General that the alien's denial of 
admission would result in extreme hardship to the United States citizen 
or lawfully resident spouse, parent, son, or daughter of such alien.'' 
Section 212(h)(1)(B) (8 U.S.C. 1182(h)(1)(B)). Some commenters 
suggested that the language of the proposed rule in Sec.  212.7(d) 
conflicts with the statutory standard of ``extreme hardship'' in 
section 212(h)(1)(B) of the Act.
    The Department disagrees with this contention. The standard in 8 
CFR 212.7(d) for the exercise of the Attorney General's discretion does 
not relate to the threshold eligibility requirement of ``extreme 
hardship'' in section 212(h)(1)(B) of the Act. Satisfying one of the 
statutory standards for determining an alien's threshold eligibility 
for seeking a waiver is only the first part of the waiver process. Even 
after the waiver applicant has met the required showing of ``extreme 
hardship,'' or one of the other threshold standards, the law also 
provides, in section 212(h)(2) of the Act, that the Attorney General 
has the discretion whether to grant affirmatively the requested relief 
to each alien. The regulation at 8 CFR 212.7(d) governs only the 
exercise of discretion under section 212(h)(2) of the Act, after the 
alien has met the threshold requirements of section 212(h)(1) of the 
Act.
    Moreover, simply because an alien has established ``extreme 
hardship'' under section 212(h)(1)(B) of the Act, such a determination 
does not bind the Attorney General in exercising his discretion under 
section 212(h)(2) of the Act. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 
30-31 (1996) (in determining whether to waive deportation of aliens 
deportable for entry fraud, Attorney General could decide not to grant 
waiver because of the fraud, even though committing entry fraud made 
alien eligible for waiver; Attorney General could take such conduct 
into account when deciding whether or not to grant waiver because the 
statute ``establishes only the alien's eligibility for the waiver. Such 
eligibility in no way limits the considerations that may guide the 
Attorney General in exercising her discretion to determine who, among 
those eligible, will be accorded grace.'') (emphasis in original).
    The standard in 8 CFR 212.7(d) is also grounded in cases 
interpreting the Act. As discussed in the proposed rule, in assessing 
whether an applicant has met the burden that a waiver is warranted in 
the exercise of discretion, the adjudicator must balance adverse 
factors evidencing inadmissibility as a lawful permanent resident with 
the social and humane considerations presented to determine if the 
grant of relief appears to be in the best interests of the United 
States. Matter of Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996) 
(involving a waiver under section 212(h)(1)(B) of the Act). 
Establishment of extreme hardship and eligibility for a waiver 
requiring a showing of such hardship does not create an entitlement to 
the relief sought. Id.; Matter of Cervantes-Gonzalez, 22 I. & N. Dec. 
560 (BIA 1999). Extreme hardship, once established, is but one 
favorable discretionary factor to be considered. Id.; Matter of Mendez-
Moralez, 21 I. & N. Dec. 296 (BIA 1996).
    In view of these considerations, this rule will codify the 
regulations proposed at 8 CFR 212.7(d), with one technical amendment to 
conform the language more closely to the text of section 212(h)(2) of 
the Act.

Other Issues Relating to the Discretion of the Attorney General to 
Grant Waivers

    The Department received three comments raising other issues 
relating to the Attorney General's discretion to grant waivers of 
criminal grounds of inadmissibility.
    One commenter suggested that the final regulations clarify that the 
waiver referred to in the proposed rule 8 CFR 212.7(d) is available 
only to aliens who are applying to adjust status under section 209 of 
the Act (8 U.S.C. 1159). The commenter stated that clarification of 
this point is necessary in order to prevent adjustment applicants who 
are not refugees from erroneously concluding that there is a broad 
waiver of certain criminal grounds of inadmissibility available to 
them, when in fact the statute expressly restricts the Attorney 
General's authority to grant such waivers to inadmissible aliens in 
accordance to section 212(h) of the Act (8 U.S.C. 1182(h)) except in 
very narrow circumstances.
    The Department agrees with the commenter that the statutory 
language authorizing a waiver of the criminal grounds of 
inadmissibility found in section 212(a)(2) of the Act (8 U.S.C. 
1182(a)(2)) in connection with an application for adjustment of status 
under section 209 of the Act is broader than that found in section 
212(h) of the Act, which authorizes waivers of criminal grounds of 
inadmissibility in connection with applicants for adjustment of status 
under other provisions of the immigration law. The Attorney General's 
decision in Matter of Jean already governs the standards under which a 
criminal ground of inadmissibility waiver may be granted as a matter of 
discretion in a section 209 adjustment case. However, the amendments 
contained in this interim rule harmonize the exercise of discretion to 
grant criminal waivers among applicants for adjustment of status by 
extending the Matter of Jean standards to those applications for the 
waiver of criminal grounds of inadmissibility made under section 
212(h)(2) of the Act, including, but not limited to, adjustment of 
status under section 586 of Pub. L. 106-429 or section 245(a) of the 
Act (8 U.S.C. 1255(a)).
    Similarly, one commenter requested that the final rule be amended 
to clarify that the Attorney General is not compelled to grant any 
available waiver of a ground of inadmissibility. Rather, stated the 
commenter, all such grants fall within the discretion of the Attorney 
General. Moreover, the commenter contended that the regulations should 
be amended to state that the Attorney General will not grant waivers of 
criminal grounds of inadmissibility to adjustment applicants under 
section 209 of the Act who are convicted of aggravated felonies.
    The Department agrees with the commenter that the Attorney General 
has complete discretion to grant a waiver under section 209(c) of the 
Act and section 212(h) of the Act. The Department also agrees that, in 
general, individuals convicted of aggravated felonies would not warrant 
the Attorney General's use of this discretion. In fact, the proposed 
regulations stated that even if the applicant can meet the 
``exceptional and extremely unusual hardship'' standard for the 
exercise of discretion, depending upon the severity of the offense, 
this might ``still be

[[Page 78678]]

insufficient'' to obtain the waiver. See 67 FR at 45407. That language 
would substantially limit the circumstances under which an individual 
convicted of an aggravated felony would be granted a waiver as a matter 
of discretion. Therefore, the Department believes that this language 
achieves the goal of the commenter while not unduly constraining the 
Attorney General's discretion to render waiver decisions on a case-by-
case basis.
    Finally, one commenter stated that the final rule should clarify 
that only the Immigration and Naturalization Service (``Service'') has 
the discretionary authority to grant waivers under section 209(c) of 
the Act, and not the Board of Immigration Appeals or Executive Office 
for Immigration Review (EOIR). This is a matter outside the scope of 
this rulemaking action because the proposed amendment to 8 CFR 212.7(d) 
does not relate to the granting of waivers under section 209(c) of the 
Act with regard to refugees. Nevertheless, the Department notes that it 
does not agree with this comment. The Act and the Department's 
regulations both provide the alien with the opportunity to renew his or 
her application for adjustment in removal proceedings. See 8 CFR 
209.1(e). Because the alien is renewing his or her case before the 
immigration judge, the alien may seek the same waivers of grounds of 
inadmissibility made available to him or her by the section of law 
under which the application for adjustment of status was filed. See 
Matter of H-N-, 22 I. & N. Dec. 1039 (BIA 1999).
    The commenter is correct in that the Act does require the alien to 
demonstrate that he or she is not inadmissible under section 212 of the 
Act. See section 240(c)(2) of the Act (8 U.S.C. 1229a(c)(2)). However, 
the waiver available at section 209(c) of the Act (8 U.S.C. 1159(c)) 
provides a means for eligible aliens, in the discretion of the Attorney 
General, to obtain a waiver of certain grounds of inadmissibility. See 
section 209(c) of the Act. As such, these waivers are available to an 
alien seeking to demonstrate that he or she is not inadmissible before 
the Service and in immigration proceedings.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. This rule only 
affects aliens who are subject to inadmissibility on criminal grounds 
by amending Department of Justice standards for waivers of the criminal 
grounds for inadmissibility for immigrants under section 212(h) of the 
Act. This rule will have no effect on small entities as that term is 
defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. 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 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

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

Executive Order 13132

    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 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

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Pub. L. 104-17, all 
departments are required to submit to the Office of Management and 
Budget, for review and approval, any reporting requirements inherent in 
a final rule. This rule does not impose any new reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Passports and visas, 
Immigration, 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 continues to read as 
follows:

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

    2. Section 212.7(d) is added, to read as follows:


Sec.  212.7  Waiver of certain grounds of inadmissibility.

* * * * *
    (d) Criminal grounds of inadmissibility involving violent or 
dangerous crimes. The Attorney General, in general, will not favorably 
exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 
1182(h)(2)) to consent to an application or reapplication for a visa, 
or admission to the United States, or adjustment of status, with 
respect to immigrant aliens who are inadmissible under section 
212(a)(2) of the Act in cases involving violent or dangerous crimes, 
except in extraordinary circumstances, such as those involving national 
security or foreign policy considerations, or cases in which an alien 
clearly demonstrates that the denial of the application for adjustment 
of status or an immigrant visa or admission as an immigrant would 
result in exceptional and extremely unusual hardship. Moreover, 
depending on the gravity of the alien's underlying criminal offense, a 
showing of extraordinary circumstances might still be insufficient to 
warrant a favorable exercise of discretion under section 212(h)(2) of 
the Act.

    Dated: December 19, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-32606 Filed 12-24-02; 8:45 am]
BILLING CODE 4410-10-P