[Federal Register Volume 68, Number 113 (Thursday, June 12, 2003)]
[Rules and Regulations]
[Pages 35151-35152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14932]



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 Rules and Regulations
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  Federal Register / Vol. 68, No. 113 / Thursday, June 12, 2003 / Rules 
and Regulations  

[[Page 35151]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 212

[ICE No. 2278-03]
RIN 1653 AA25


Authority of the Secretary of Homeland Security; Parole Authority

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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

SUMMARY: On November 25, 2002, the President signed into law the 
Homeland Security Act of 2002 (Pub. L. 107-296) (HSA), which created 
the new Department of Homeland Security (Department or DHS). The 
functions of the Immigration and Naturalization Service (Service) and 
all authorities with respect to those functions, transferred to DHS on 
March 1, 2003, and the Service was abolished on that date, pursuant to 
the HSA and the Department of Homeland Security Reorganization Plan, as 
modified (Reorganization Plan). DHS is promulgating this rule to 
continue the process of conforming the text of Title 8 of the Code of 
Federal Regulations to the governmental structures established in the 
HSA and Reorganization Plan. The rule addresses parole authority under 
section 212(d)(5) of the Immigration and Nationality Act. With regard 
to parole authority the rule implements changes in the field structures 
of the Bureau of Citizenship and Immigration Services (BCIS), the 
Bureau of Customs and Border Protection (CBP), and the Bureau of 
Immigration and Customs Enforcement (ICE) by amending the titles of 
officers given parole authority.

DATES: This final rule is effective June 12, 2003.

FOR FURTHER INFORMATION CONTACT: Catherine Muhletaler, Bureau of 
Immigration and Customs Enforcement, Office of General Counsel, 425 I 
Street, NW., Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION:

Explanation of Changes

    This rule amends parole authority under 8 CFR 212.5 to reflect the 
new titles under the organizational structures of the BCIS, CBP, and 
ICE. The term ``Commissioner'' has been replaced with ``Secretary'' to 
reflect the transfer of authority over parole issues from the Service 
to DHS and the component organizations of the BCIS, CBP, and ICE. 
Component heads of the three bureaus are the Director of the BCIS, 
Commissioner of CBP and Assistant Secretary for ICE. The rule does not 
make any substantive changes to the standards for making determinations 
regarding requests for parole.

Procedural Requirements

Good Cause Exception

    Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking or 
delayed effective date is unnecessary as this rule relates to agency 
organization and management. Accordingly, it is not a ``rule'' as that 
term is used by the Congressional Review Act (Subtitle E of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)), and the 
reporting requirement of 5 U.S.C. 801 does not apply.

Executive Order 12866

    This rule is limited to agency organization, management or 
personnel matters, and therefore is not a regulation or rule as defined 
by Executive Order 12866. It has also been determined that this 
rulemaking is not a significant regulatory action for the purposes of 
Executive Order 12866. Accordingly, a regulatory impact analysis is not 
required.

Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply.

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 12988: Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal government, 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.

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, the Department of Homeland Security has 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), 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, Immigration, 
Reporting and recordkeeping requirements.

[[Page 35152]]


0
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

0
1. The authority citation for part 212 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 
1184, 1187, 1225, 1226, 1227, 1228; Public Law 107-296, 116 Stat 
2135 (6 U.S.C. 1, et seq.); 8 CFR part 2.


0
2. Section 212.5 is amended by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (b)(3) introductory text;
0
c. Revising paragraph (b)(5);
0
d. Revising paragraph (c);
0
e. Revising paragraph (d) introductory text;
0
f. Revising paragraph (d) (1); and by
0
g. Revising paragraph (e)(2)(i).
    The revisions read as follows:


Sec.  212.5  Parole of aliens into the United States.

    (a) The authority of the Secretary to continue an alien in custody 
or grant parole under section 212(d)(5)(A) of the Act shall be 
exercised by the Assistant Commissioner, Office of Field Operations; 
Director, Detention and Removal; directors of field operations; port 
directors; special agents in charge; deputy special agents in charge; 
associate special agents in charge; assistant special agents in charge; 
resident agents in charge; field office directors; deputy field office 
directors; chief patrol agents; district directors for services; and 
those other officials as may be designated in writing, subject to the 
parole and detention authority of the Secretary or his designees. The 
Secretary or his designees may invoke, in the exercise of discretion, 
the authority under section 212(d)(5)(A) of the Act.
    (b) * * *
    (3) Aliens who are defined as juveniles in Sec.  236.3(a) of this 
chapter. The Director, Detention and Removal; directors of field 
operations; field office directors; deputy field office directors; or 
chief patrol agents shall follow the guidelines set forth in Sec.  
236.3(a) of this chapter and paragraphs (b)(3)(i) through (iii) of this 
section in determining under what conditions a juvenile should be 
paroled from detention:
* * * * *
    (5) Aliens whose continued detention is not in the public interest 
as determined by those officials identified in paragraph (a) of this 
section.
    (c) In the case of all other arriving aliens, except those detained 
under Sec.  235.3(b) or (c) of this chapter and paragraph (b) of this 
section, those officials listed in paragraph (a) of this section may, 
after review of the individual case, parole into the United States 
temporarily in accordance with section 212(d)(5)(A) of the Act, any 
alien applicant for admission, under such terms and conditions, 
including those set forth in paragraph (d) of this section, as he or 
she may deem appropriate. An alien who arrives at a port-of-entry and 
applies for parole into the United States for the sole purpose of 
seeking adjustment of status under section 245A of the Act, without 
benefit of advance authorization as described in paragraph (f) of this 
section shall be denied parole and detained for removal in accordance 
with the provisions of Sec.  235.3(b) or (c) of this chapter. An alien 
seeking to enter the United States for the sole purpose of applying for 
adjustment of status under section 210 of the Act shall be denied 
parole and detained for removal under Sec.  235.3(b) or (c) of this 
chapter, unless the alien has been recommended for approval of such 
application for adjustment by a consular officer at an Overseas 
Processing Office.
    (d) Conditions. In any case where an alien is paroled under 
paragraph (b) or (c) of this section, those officials listed in 
paragraph (a) of this section may require reasonable assurances that 
the alien will appear at all hearings and/or depart the United States 
when required to do so. Not all factors listed need be present for 
parole to be exercised. Those officials should apply reasonable 
discretion. The consideration of all relevant factors includes:
    (1) The giving of an undertaking by the applicant, counsel, or a 
sponsor to ensure appearances or departure, and a bond may be required 
on Form I-352 in such amount as may be deemed appropriate;
* * * * *
    (e) * * *
    (2)(i) On notice. In cases not covered by paragraph (e)(1) of this 
section, upon accomplishment of the purpose for which parole was 
authorized or when in the opinion of one of the officials listed in 
paragraph (a) of this section, neither humanitarian reasons nor public 
benefit warrants the continued presence of the alien in the United 
States, parole shall be terminated upon written notice to the alien and 
he or she shall be restored to the status that he or she had at the 
time of parole. When a charging document is served on the alien, the 
charging document will constitute written notice of termination of 
parole, unless otherwise specified. Any further inspection or hearing 
shall be conducted under section 235 or 240 of the Act and this 
chapter, or any order of exclusion, deportation, or removal previously 
entered shall be executed. If the exclusion, deportation, or removal 
order cannot be executed within a reasonable time, the alien shall 
again be released on parole unless in the opinion of the official 
listed in paragraph (a) of this section the public interest requires 
that the alien be continued in custody.
* * * * *

    Dated: June 3, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-14932 Filed 6-10-03; 2:49 pm]
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