[Federal Register Volume 68, Number 19 (Wednesday, January 29, 2003)]
[Rules and Regulations]
[Pages 4364-4367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1958]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 236 and 241

[INS No. 2203-02]
RIN 1115-AG67


Release of Information Regarding Immigration and Naturalization 
Service Detainees in Non-Federal Facilities

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This final rule governs the public disclosure by any state or 
local government entity or by any privately operated facility of the 
name and other information relating to any immigration detainee being 
housed or otherwise maintained or provided service on behalf of the 
Immigration and Naturalization Service (INS or Service). This rule 
establishes a uniform policy on the public release of information on 
Service detainees and ensures the Service's ability to support the law 
enforcement and national security needs of the United States.

DATES: This rule is effective on January 29, 2003.

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

SUPPLEMENTARY INFORMATION: The Commissioner of the Immigration and 
Naturalization Service (``Service'') published this rule as an interim 
rule with request for comments on April 22, 2002. 67 FR 19508. In the 
60-day comment period, the Service received only four comments.
    The comments received may be described as follows: One commenter 
contended that the rule violates non-citizens' constitutional rights, 
the public's right to know under the First Amendment, the States' 
rights under the Tenth Amendment and the Guarantee Clause of Article IV 
of the Constitution. This comment also argued that the manner of 
promulgation of the interim rule violated the Administrative Procedure 
Act (APA), and that consent to the rule by a non-federal institution 
could not validate the rule. A second commenter asserted that the rule 
violates the First Amendment and the Due Process Clause of the Fifth 
Amendment to the Constitution; that the rule derogates treaty 
obligations of the United States under international law; that, in 
enacting the interim rule, the Service failed to comply with the notice 
and comment provisions of the APA; that the rule violates the Tenth 
Amendment; and that the rule exceeds the scope of delegated authority 
under the Immigration and Nationality Act (``Act''). The third comment 
also took the position that the rule exceeds the authority delegated 
under the Act. The fourth comment urged that the rule is impractical 
and affects the ability of third persons to communicate with detainees. 
All of the commenters were of the view that the rule reflects 
undesirable public policy.
    Rather than respond to each comment individually, the Service 
believes that it is more functional to respond to the concerns raised, 
organized by subject matter. The Service has considered the comments 
and responds as follows:
    1. The commenters' suggestion that the rule exceeds the Attorney 
General's authority under federal law is without merit. Federal control 
over matters regarding aliens and immigration is plenary and exclusive. 
``Control over immigration and naturalization is entrusted exclusively 
to the Federal Government, and a State has no power to interfere.'' 
Nyquist v. Mauclet, 432 U.S. 1, 10 (1977); see also, e.g., Mathews v. 
Diaz, 426 U.S. 67, 81 (1976) (``[T]he responsibility for regulating the 
relationship between the United States and our alien visitors has been 
committed to the political branches of the Federal Government.''). 
Under federal law, the Attorney General is explicitly charged with the 
administration and enforcement of the Nation's immigration laws. 8 
U.S.C. 1103(a)(1) (``[t]he Attorney General shall be charged with the 
administration and

[[Page 4365]]

enforcement of this chapter and all other laws relating to the 
immigration and naturalization of aliens''); see INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). Pursuant to those responsibilities, 
the Attorney General possesses broad and express authority to 
promulgate appropriate immigration regulations. See 8 U.S.C. 1103(a)(3) 
(the Attorney General ``shall establish such regulations; * * * issue 
such instructions; and perform such other acts as he deems necessary 
for carrying out his authority under the provisions of this 
chapter.''). In addition, the Attorney General has explicit statutory 
authority to detain aliens in connection with removal proceedings, 8 
U.S.C. 1226(a), 1231, and to enter into agreements with State and local 
governments for the housing of aliens detained under provisions of the 
immigration laws. 8 U.S.C. 1103(a)(9)(A). The Attorney General has 
delegated substantial immigration responsibilities to the Commissioner 
of the INS. See 8 U.S.C. 1103(c); 8 CFR 2.1.
    These provisions plainly authorize the Attorney General or the 
Commissioner to set the terms of alien detention contracts and to 
provide by regulation that persons housing INS detainees on behalf of 
the federal government shall not publicly disclose the names and other 
information regarding those detainees, particularly where such 
disclosure would threaten harm to vital national interests. The 
regulation is further supported by the plenary federal authority with 
respect to matters of national security. See, e.g., Haig v. Agee, 453 
U.S. 280, 307 (1981) (``It is obvious and unarguable that no 
governmental interest is more compelling than the security of the 
nation'') (citation omitted); Murphy v. Waterfront Comm'n of N.Y. 
Harbor, 378 U.S. 52, 76 n.16 (1964) (noting ``the paramount federal 
authority in safeguarding national security'') (citation and internal 
quotation marks omitted). The rule is necessary because, as the New 
Jersey appellate court, in reviewing the legality and effect of interim 
rule, pointed out, ``The counties are not privy to the character and 
extent of federal investigations in progress nor, apparently, do they 
possess any independently acquired information regarding the role of 
the INS detainees in those investigations.'' ACLU v. County of Hudson, 
799 A.2d 629, 643 (N.J. Super. App. Div.), certification denied, 803 
A.2d 1162 (N.J. 2002).
    Moreover, to the extent that the rule implicates contracts between 
the federal government and state, local or private entities, to house 
federal detainees, those contracts are governed by federal law. The 
``rights of the United States under its contracts are governed 
exclusively by federal law,'' Boyle v. United Technologies Corp., 487 
U.S. 500, 504 (1988). With respect to contracts to house INS detainees, 
the regulation confirms what should always have been evident: that 
federal contractors with the INS may not use the information obtained 
in housing federal detainees to impair the federal government's 
enforcement of the immigration and criminal laws.
    Further, the issue is not whether a non-federal entity consents to 
the regulation. Any non-federal entity providing housing for federal 
detainees may take steps to terminate its relationship with the Service 
if it so chooses. The rule simply relieves the non-federal entity of 
responsibility for releasing or withholding information regarding the 
detainees, and places that responsibility with the federal government 
subject to standards established by federal law.
    The validity of the interim rule has recently been confirmed by the 
Superior Court of New Jersey, Appellate Division, in ACLU v. County of 
Hudson, 799 A.2d 629, 643 (N.J. Super. App. Div.), certification 
denied, 803 A.2d 1162 (N.J. 2002). In that decision, the court relied 
on the interim rule to reverse the judgment of a lower court requiring 
disclosure of information by county officials. The New Jersey court 
confirmed that ``the regulation falls within the authority delegated to 
the Commissioner by Congress through the Attorney General.'' Id., at 
649; see also, at 650. The court found that it need ``not assess the 
strength of the government's argument that national security interests 
create a generalized authority within the government to promulgate 8 
CFR 236.6 or any other measures limiting the rights of individuals, for 
we view the government's argument based upon the delegation of 
authority under the INA to provide a sufficiently authoritative 
independent basis of support for the Commissioner's action.'' Id., at 
650.
    2. Some of the commenters asserted that the interim rule was 
improperly promulgated under the Administrative Procedure Act (APA). As 
the Service explained in promulgating the interim rule, implementation 
of the rule as an interim rule, with provisions for post-promulgation 
public comments, was properly based on the APA's ``good cause'' 
exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). 67 FR at 19510.
    The statement accompanying the promulgation of the interim rule 
easily satisfied the requirements of 5 U.S.C. 553(b)(B) and (d)(3). The 
``good cause'' exceptions may be used in ``emergency situations,'' 
Util. Solid Waste Activities Group v. EPA, 236 F.3d 749, 754 (D.C. Cir. 
2001), and the circumstances surrounding promulgation of the interim 
rule easily met that criterion. Public disclosure of the information at 
issue would have endangered national security and undermined crucial 
federal law enforcement interests. Immediate promulgation of a rule to 
clarify federal law and ensure the protection of those national 
interests was vital. In those circumstances, the government was not 
required to await completion of a notice-and-comment period to take 
immediate action.
    With the adoption of this final rule, it is the final rule, and not 
the interim rule, that is operative. Even if a court were to find that 
the interim rule was improperly adopted, the court would look to this 
final rule in determining the rule's legal efficacy.
    3. The commenters' constitutional challenges lack force. First, the 
Tenth Amendment is not implicated. The rule against commandeering 
applies only when the federal government requires state legislatures to 
enact regulatory schemes, New York v. United States, 505 U.S. 144, 168-
69, 173 (1992), or ``conscripts'' state officials to execute a federal 
program, Printz v. United States, 521 U.S. 898, 935 (1997). The rule 
has no application where the federal government requires a state not to 
release information pursuant to a framework, such as this rule, that 
applies equally to both state and private actors. Thus, in Reno v. 
Condon, 528 U.S. 141 (2000), the Supreme Court unanimously rejected a 
Tenth Amendment challenge to a federal law that prohibited states from 
disclosing a driver's personal information, such as a person's name and 
address.
    The Supreme Court has also made clear that the ``anti-
commandeering'' principle places no constraint on the federal 
government's ability to impose conditions on the receipt of federal 
funds. See New York, 505 U.S. at 168-69, 173. Pursuant to explicit 
congressional authority, the federal government has expended and is 
expending substantial funds in connection with the housing of 
immigration detainees by non-federal entities. The conditions attached 
to the receipt of those funds--funds which recipients are free to 
accept or reject as they please--do not implicate the Tenth Amendment. 
See id.
    Second, the commenters' invocation of the Guarantee Clause of 
Article IV of the Constitution also fails. The Guarantee Clause 
provides that ``[t]he United States shall guarantee to every State in 
this Union a Republican Form

[[Page 4366]]

of Government.'' U.S. Const., Art. IV, Sec.  4. That constitutional 
provision is not implicated here.
    Third, the commenters' Due Process concerns are unfounded. Under 
federal law, INS detainees in removal proceedings are entitled to 
invoke a panoply of applicable administrative and judicial procedures. 
See, e.g., 8 U.S.C. 1226-31; 8 CFR 240.10. The rule in no way abrogates 
any of those rights. Moreover, administrative removal proceedings are 
``intended to provide a streamlined determination of eligibility to 
remain in this country, nothing more.'' INS v. Lopez-Mendoza, 468 U.S. 
1032, 1039 (1984). Thus, due process requirements in this context are 
reduced, and hearings need not comply with ``the forms of judicial 
procedure.'' Yamataya v. Fisher, 189 U.S. 86, 97 (1903); see also, 
e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 271-273 (1990) 
(due process ``accord[s] differing protection to aliens than to 
citizens''); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (political 
branches may adopt rules for aliens `` `that would be unacceptable if 
applied to citizens' '' (citation omitted)); Landon v. Plasencia, 459 
U.S. 21, 34 (1982) (``it must weigh heavily in the [due process] 
balance that control over matters of immigration is a sovereign 
prerogative, largely within the control of the executive and the 
legislature''). The disclosure rule here invades no due process rights.
    Fourth, the rule does not infringe upon any public First Amendment 
rights. Rather, the rule ensures that any disclosure of information 
pertaining to federal detainees will be governed by the federal Freedom 
of Information Act (FOIA), 5 U.S.C. 552. The FOIA provides generally 
for disclosure of records by federal agencies, but contains exceptions 
that Congress believed crucial to the effective functioning of the 
national government. See, e.g., 5 U.S.C. 552(b)(1), (7)(A), (C), (E), 
(F). The rule here ensures that federal interests will be protected by 
channeling information requests through the FOIA. In addition, the rule 
guarantees that information regarding federal detainees will be 
released under a uniform federal scheme rather than the varying laws of 
fifty states. It is this Act of Congress and this implementing rule 
that are controlling, not the Constitutional bar to impairment of 
freedom of speech. ``The Constitution itself is neither a Freedom of 
Information Act nor an Official Secrets Act.'' Houchins v. KQED, Inc., 
438 U.S. 1, 12 (1978) (quoting Stewart, ``Or of the Press,'' 26 
Hastings L.J. 631, 636 (1975)). By channeling requests for information 
through the FOIA, which contains a privacy exception, the rule also 
protects detainees' privacy. Just as the government has a substantial 
interest in protecting legitimate national security, intelligence and 
law enforcement functions under the FOIA, detainees may have a 
substantial privacy interest in their names and the personal 
information connected with their status as detainees. 5 U.S.C. 
552(b)(1), (6), (7)(A), (C), (E). For example, individuals who were 
originally detained because of their possible connection to terrorism, 
have an overwhelming interest in not being connected with such 
activity. And particularly with respect to those individuals 
cooperating with the government's law enforcement investigations, there 
are powerful reasons why such persons would wish to conceal their 
identities and whereabouts. Indeed, other INS regulations expressly 
shield from disclosure information pertaining to or contained in an 
asylum application. See 8 CFR 208.6(a). Contrary to some of the 
commenters' suggestions, the fact that certain detainees may wish to 
publicly identify themselves, which they are free to do, in no way 
undermines this assessment.
    4. The contention that the rule violates international law is 
similarly without basis. Federal law explicitly addresses the issue of 
access to consular officials. The Vienna Convention requires that a 
detained individual be advised of his or her right to contact his or 
her country's consul, and consular notification upon request of the 
detainee. See Vienna Convention on Consular Relations, 21 U.S.T. 77, 
T.I.A.S. No. 6820, Art. 36(1)(b). However, an alien detainee may not 
wish to have his nation's representatives advised of his detention and 
may wish to apply for refugee status or asylum. Consular notification 
is mandatory only if the bilateral consular convention specifically 
requires notifying consular officials of all arrests or detentions. See 
8 CFR 236.1(e) (listing countries covered by such bilateral 
conventions).
    5. Finally, all of the comments argue that the rule reflects 
unwarranted public policy choices. The Service disagrees. In this post-
September 11, 2001, era of heightened national security concerns, it is 
necessary that information regarding aliens detained in the United 
States be released with great care. As explained in connection with 
promulgation of the interim rule, the inappropriate release of 
information concerning detained aliens can provide hostile interests 
with intelligence harmful to the national security and law enforcement 
interests of the United States. In upholding the regulation, the 
Appellate Division of the New Jersey Superior Court expressly 
accept[ed] the government's characterization of the interests affected 
as important, i.e., facilitation of law enforcement operations, the 
protection of detainees, and promotion of national security.'' ACLU v. 
County of Hudson, supra, 799 A.2d at 652; see also id., at 649 (``With 
regard to the government's national security argument, there can be no 
question that the government of the United States has a compelling 
interest in securing the safety of the nation's citizens against 
terrorist attack''). The Service continues to believe that the rule is 
fully warranted and adopts the analysis and legal authority in the 
supplementary information to the interim rule as support for the 
adoption of this final rule. 67 FR at 19501-19510.
    The commenters' contention that the rule is impractical has not 
proven to be true. The FOIA has a long history of success in providing 
for proper public access to information while also protecting 
appropriate public safety, national security, and individual privacy 
interests. The Service is fully capable of carrying out this mandate in 
the context of federal immigration detainees housed in non-federal 
facilities, and the commenters have supplied no evidence to the 
contrary.
    Accordingly, the Service is adopting the interim rule as a final 
rule without amendment.

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 this rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule applies only to release of information about 
Service detainees being housed or maintained in a state or local 
government entity or a privately operated detention facility. It does 
not have any adverse 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.

[[Page 4367]]

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 Act of 1996. 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 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, Immigration 
and Naturalization Service, 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. This rule merely pertains to the public 
disclosure of information concerning Service detainees housed, 
maintained or otherwise served in state or local government or 
privately operated detention facilities under any contract or other 
agreement with the Service. In effect, the rule will relieve state or 
local government entities of responsibility for the public release of 
information relating to any immigration detainee being housed or 
otherwise maintained or provided service on behalf of the Service. 
Instead, the rule reserves that responsibility to the Service with 
regard to all Service detainees. 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 set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act.

List of Subjects

8 CFR Part 236

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 241

    Administrative practice and procedure, Aliens, Immigration.
    Accordingly, the interim rule amending 8 CFR parts 236 and 241 
which was published at 67 FR 19508 on April 22, 2002, is adopted as a 
final rule without change.

    Dated: January 23, 2003.
Michael J. Garcia,
Acting Commissioner, Immigration and Naturalization Service.
[FR Doc. 03-1958 Filed 1-28-03; 8:45 am]
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