[Federal Register Volume 89, Number 163 (Thursday, August 22, 2024)]
[Rules and Regulations]
[Pages 67857-67859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18659]


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DEPARTMENT OF STATE

22 CFR Part 40

[Public Notice: 12464]
RIN 1400-AF77


Visas: Visa Ineligibility

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (``Department'') is amending a 
regulation relating to the effect of certain pardons on criminal-
related grounds of visa ineligibility.

DATES: This final rule is effective on August 22, 2024.

FOR FURTHER INFORMATION CONTACT: Jami Thompson, Office of Visa 
Services, Bureau of Consular Affairs, Department of State; telephone 
(202) 485-7586, [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    The Department of State (``Department'') is amending its 
regulations at 22 CFR 40.21(a)(5), and 22 CFR 40.22(c) regarding the 
effect of a pardon on a visa applicant's ineligibility under section 
212(a)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C. 
1182(a)(2)(A)) and INA section 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)), 
respectively. The current regulation at 22 CFR 40.21(a)(5) provides 
that an alien is not ineligible for a visa under INA section 
212(a)(2)(A) if a full and unconditional pardon has been granted by the 
President of the United States, by a governor of a state of the United 
States, or by certain other specified officials. Similarly, the current 
regulation at 22 CFR 40.22(c) provides that an alien is not ineligible 
for a visa under INA section 212(a)(2)(B) based on having been 
convicted of two or more offenses, if a full and unconditional pardon 
has been granted by the President of the United States, by a governor 
of a state of the United States, or by certain other specified 
officials. The Seventh Circuit Court of Appeals recently examined the 
regulation at 22 CFR 40.21(a)(5), finding that it conflicts with INA's 
provisions in section 212(a)(2)(A)(i) governing inadmissibility based 
on conviction or admission of certain crimes, which do not include an 
exception or waiver to that inadmissibility for applicants who receive 
a pardon.

. . . the [INA] is clear that a pardon does not make an otherwise 
inadmissible noncitizen admissible, even if a pardon can save a 
resident noncitizen from being removed . . . and where agency 
regulations conflict with statutory text, statutory text wins out 
every time. We simply cannot square [22 CFR 40.21(a)(5)] with the 
text and structure of the INA as it was amended in 1990.

    Wojciechowicz v. Garland, 77 F.4th 511, 514, 518 (7th Cir. 2023) 
(internal citations and parentheticals omitted). The Department agrees 
with the Seventh Circuit's opinion in Wojciechowicz as it applies to 
gubernatorial pardons and finds that the court's analysis regarding the 
lack of underlying authority in the INA giving effect to such pardons 
also extends to the Department's regulation at 22 CFR 40.22(c) 
regarding ineligibility for multiple criminal convictions.

B. Legal Background

    The Department first promulgated these rules in 1959 at 22 CFR 
41.91(a)(9)-(10).\1\ At the time the regulations were first 
promulgated, the Immigration and Nationality Act of 1952, as amended 
(``1952 Act''), provided that noncitizens were excludable \2\ from the 
United States and ineligible for visas if they had been convicted of a 
crime involving moral turpitude or two or more criminal offenses. 
Unlike the 1952 Act's provisions on grounds of deportation, which did 
provide that the criminal-related ground of deportation ``shall not 
apply'' to individuals who had received a full and unconditional pardon 
by the President of the United States or by the Governor of any of the 
several States, the 1952 Act did not include a provision on the effect 
of a pardon on excludability. Section 222(a) of the 1952 Act did, 
however, speak to the possible relevance of a previous pardon or 
amnesty to an individual's eligibility for an immigrant visa, requiring 
that all immigrant visa applicants provide such information among a 
range of other specified fields.
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    \1\ See 24 FR 6678 (Aug. 18, 1959).
    \2\ The 1952 Act referred to ``classes of aliens [that] shall be 
ineligible to receive visas and [that] shall be excluded from 
admission into the United States'' (emphasis added). The Illegal 
Immigration Reform and Immigration Responsibility Act of 1996 
(IIRIRA), 110 Stat. 3009-546, introduced the language of 
``inadmissible aliens'' as part of a broader reorganization of the 
INA.
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    While the 1952 Act did not expressly include a provision on the 
effect of a pardon on excludability, the Board of Immigration Appeals 
(BIA) held in 1954 that such pardons also remove excludability under 
now-INA section 212(a)(2)(A)(i). Matter of H--, 6 I&N Dec. 90, 96 (BIA 
1954) (``As long as there is a full and unconditional pardon granted by 
the President or by a Governor of a State covering the crime which 
forms the ground of deportability, whether in exclusion or expulsion, 
the immunizing feature of the pardon clause applies . . .'') (emphasis 
added).
    Following promulgation of the Department's 1959 rule, amendments to 
the Immigration and Nationality Act and multiple court decisions have 
removed any ambiguity about whether there is a statutory basis to 
except individuals from inadmissibility under INA section 
212(a)(2)(A)(i) or INA section 212(a)(2)(B) based on a gubernatorial 
pardon. Congress revised the grounds of deportation relating to 
convictions of crimes involving moral turpitude and aggravated felonies 
under section 602(a) of the Immigration Act of 1990 (``IMMACT 90'') 
and, among the revisions, added a new clause to that ground expressly 
authorizing waivers of that ground in cases of certain pardons, 
including gubernatorial pardons. In the same Act, Congress similarly 
revised the INA's ground of inadmissibility in INA section 
212(a)(2)(A)(i) for conviction of certain crimes to include a separate 
clause of exceptions to that ground and did not include any such 
language excepting applicants from ineligibility if their relevant 
conviction had been pardoned. Congress also subsequently amended INA 
section 222(a) to no longer expressly require that all immigrant visa 
applicants provide information on a previous pardon or amnesty.\3\
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    \3\ Immigration and Nationality Technical Corrections Act of 
1994, Public Law 103-416, Section 205(a).
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    In more recent years, courts have also consistently reached the 
opposite conclusion of Matter of H-- regarding the effect of a pardon 
on a conviction that leads to criminal-related inadmissibility, like 
the court's findings in Wojciechowicz. Each court that has considered 
the effect of a gubernatorial pardon on admissibility has uniformly 
found that Congress did not include an exception to inadmissibility 
under INA section 212(a)(2)(A)(i) based on having received a pardon as 
it had done in the corresponding section outlining the criminal grounds 
for deportation. For example, in Balogun vs. U.S. Attorney General, a 
case involving a gubernatorial pardon, the Eleventh Circuit held that 
because the criminal-related inadmissibility ground ``does not have a 
pardon provision like [8 U.S.C.]

[[Page 67858]]

section 1227 does,'' the logical conclusion was that Congress must not 
have ``intended to extend the pardon waiver to inadmissible aliens.'' 
Balogun v. U.S. Atty. Gen., 425 F.3d 1356, 1362 (11th Cir. 2005). The 
Ninth Circuit subsequently reached the same conclusion in another case 
involving a gubernatorial pardon, with the court finding that the 
``statutory language dealing with pardons applies only to aliens who 
are charged based upon convictions under [8 U.S.C. 1227] . . . It does 
not apply to aliens charged with inadmissibility under [8 U.S.C. 
1182(a)].'' Aguilero-Montero v. Mukasey, 548 F.3d 1248, 1250 (9th Cir. 
2008).
    Consistent with these courts' uniform findings on the issue, the 
BIA has also consistently reached the opposite conclusion of Matter of 
H--, and specifically held that the statutory language on effects of 
pardons applies only to the criminal-related grounds of deportation and 
not inadmissibility.\4\ See, e.g., Matter of Suh, 23 I&N Dec. 626, 628 
(BIA 2003); Matter of Dillingham, 21 I&N Dec. 1001 (BIA 1997).
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    \4\ Wojciechowicz, as well as other judicial and administrative 
decisions confronting the impact of a pardon on inadmissibility, 
involved pardons not issued by the President of the United States. 
This rule implements Wojciechowicz's interpretation of the INA vis-
[agrave]-vis a gubernatorial pardon, which the court found 
conflicted with the Department's regulation at 22 CFR 40.21(a)(5). 
The Department therefore need not address whatever separation of 
powers concerns may or may not exist regarding the INA and the 
President's Article II pardon authority. See Aristy-Rosa v. Att'y 
Gen., 994 F.3d 112, 117 (9th Cir. 2021) (``These separation of 
powers concerns are absent here, however, because Aristy-Rosa's case 
concerns only a state pardon[.])''; see also Aguilera-Montero, 548 
F3d at 1255 n.9.
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    While the Department agrees with the uniform findings from the 
courts and the BIA that the text and structure of the INA do not 
provide a basis for a pardon waiver of inadmissibility under INA 
section 212(a)(2)(A)-(B), these cases do not address the constitutional 
authority of the President to pardon an offense against the United 
States, and the effect of such pardons on a criminal-related 
inadmissibility. Irrespective of express statutory authority to waive 
the effects of a criminal conviction, a pardon granted by the President 
of the United States removes the attachment of all consequences based 
on the offense. See U.S. Const. art. II, Sec.  2; Effects of a 
Presidential Pardon, 19 Op. O.L.C. 160 (1995) (quoting Ex Parte 
Garland, 71 U.S. (4 Wall.) 333, 380 (1866)). Consequently, this rule 
retains language in both regulations regarding the effect on 
ineligibility under INA section 212(a)(2)(A)-(B) by reason of a 
conviction for which the President of the United States has granted a 
full and unconditional pardon.
    This rulemaking also removes references to the effect of a pardon 
granted by either the former High Commissioner for Germany acting 
pursuant to Executive Order 10062 or the U.S. Ambassador to the Federal 
Republic of Germany acting pursuant to Executive Order 10608. These 
executive orders were issued in 1949 and 1955, respectively, and 
pertained to the functions and authorities of the United States in 
Germany following World War II. Actions undertaken pursuant to these 
executive orders are now generally obsolete given the time that has 
passed since the United States occupied Germany. As these provisions 
pertain to adjudication of visa applications from individuals granted 
pardons under these executive orders, the provisions are now obsolete 
and are being removed in the interest of keeping Department regulations 
clear and up to date.

Regulatory Findings

A. Administrative Procedure Act

    The Department is publishing this notice as an interpretative rule 
which, under the Administrative Procedure Act (APA), is not subject to 
the general requirement for public notice and comment or the 
requirement for a 30-day delayed effective date. 5 U.S.C. 553(b)-(c), 
(d)(2). ``[T]he critical feature of interpretive rules is that they are 
issued by an agency to advise the public of the agency's construction 
of the statutes and rules which it administers.'' Perez v. Mortgage 
Bankers Ass'n, 575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey 
Mem'l Hosp., 514 U.S. 87, 99 (1995)). As explained above, this rule 
amends the existing regulation to implement the plain meaning of 
statutory authorities and the President's constitutional authority 
regarding the effect of pardons on inadmissibility under INA sections 
212(a)(2)(A)(i) and 212(a)(2)(B). Any rule that is ``based on an 
agency's power to exercise its judgment as to how best to implement a 
general statutory mandate'' is likely legislative. See United Tech. 
Corp. v. EPA, 821 F.2d 714, 720 (D.C. Cir. 1987). This rule, however, 
conveys the Department's interpretation of Congress having expressly 
not provided an exception to inadmissibility based on a pardon, 
reflecting a plain reading of the inadmissibility ground in INA section 
212(a)(2)(A)(i) that multiple courts have shared; therefore, because it 
is not based in any exercise of the Department's judgment or discretion 
regarding these authorities, it is an interpretative rule.
    Moreover, whether a rule is legislative or interpretative is 
assessed by reviewing a range of factors related to: (1) whether the 
agency would not have an adequate basis to perform duties in the 
absence of the rule; (2) whether the agency has published the rule in 
the Code of Federal Regulations; (3) whether the agency has explicitly 
invoked a legislative authority; or (4) whether the rule effectively 
amends a prior legislative rule. Am. Mining Cong. v. Mine Safety Health 
Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). If any of the answers to 
these questions are affirmative, then the rule is considered 
legislative and not interpretative. Id.
    None of the factors in American Mining apply to this rule. First, 
even absent this rulemaking, the lack of any ambiguity regarding the 
effect of a gubernatorial pardon on a conviction of a crime involving 
moral turpitude makes clear that the Department lacks authority to 
except applicants from ineligibility under INA section 212(a)(2)(A)-
(B), regardless of this rule. Second, while this rule will result in an 
amended regulation that is published in the Code of Federal 
Regulations, the changes are not based in legislative authority, which 
the court in American Mining explained is the purpose of assessing 
publication there. See id. at 1109 (``[A]n agency seems likely to have 
intended a rule to be legislative if it has the rule published in the 
Code of Federal Regulations[.]''). Third, the Department is not 
invoking its general legislative authority to support or justify this 
rule, as it is merely restating existing statutory and Constitutional 
authority with respect to the effect of pardons. Id. at 1110; 
Fertilizer Institute v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991). 
Finally, this rule does not amend a prior legislative rule, as a rule 
does not become an amendment of a prior legislative rule merely because 
it clarifies an authority being interpreted. See Id. at 1112 (``If that 
were so, no rule could pass as an interpretation of a legislative rule 
unless it were confined to parroting the rule or replacing the original 
vagueness with a rule.''). The existing rule appears based on 
implementation of a 1954 BIA decision for which courts have 
consistently reached the opposite conclusion regarding authority in the 
INA to give effect to a pardon on a conviction of a crime involving 
moral turpitude. See Matter of H--at 96. Consequently, the prior rule 
appears to have also been interpretative and not legislative.
    As this rule amends visa policy, which is a foreign affairs 
function of the United States, it is also exempt from both the notice 
and comment and

[[Page 67859]]

delayed effective date requirements of 5 U.S.C. 553 per subsection 
(a)(1).

B. Regulatory Flexibility Act

    As this rulemaking is not required to be published for notice and 
comment under 5 U.S.C. 553, it is exempt from the regulatory 
flexibility analysis requirements set forth by the Regulatory 
Flexibility Act. Nonetheless, as this rule only directly impacts visa 
applicants, the Department certifies that this rule will not have a 
significant economic impact on a substantial number of small entities.

C. Congressional Review Act

    This rule is not a major rule as defined by the Congressional 
Review Act (5 U.S.C. 801 et seq.). 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 import markets.

D. Executive Orders 12866, 13563, and 14094

    Executive Orders (E.O.) 12866, 13563, and 14094 do not apply to 
this rule, as it pertains to a foreign affairs function.\5\ 
Notwithstanding the above, the Department has submitted this rule to 
OIRA for review and OIRA has deemed this rule not to be a significant 
regulatory action. For the reasons stated above, as this rule affects 
only visa applicants, the Department is confident this rule will not 
result in significant impacts to U.S. persons, including U.S. citizens 
or lawful permanent residents.
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    \5\ See E.O. 12866 Sec. 3(d)(2) (excepting from the definition 
of regulation those rules ``that pertain to a . . . foreign affairs 
function of the United States'').
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E. Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

F. Paperwork Reduction Act

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

G. Other

    The Department has also considered this rule under the Unfunded 
Mandates Reform Act of 1995 and Executive Orders 12372, 13132, and 
13272 and affirms this rule is consistent with the applicable mandates 
or guidance therein.

List of Subjects in 22 CFR Part 40

    Administrative practice and procedure, Aliens, Foreign relations, 
Immigration, Passports and visas.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 40 
is amended as follows:

PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND 
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED

0
1. The authority citation for part 40 continues to read as follows:

    Authority:  8 U.S.C. 1104, 1182, 1183a, 1641


0
2. Revise Sec.  40.21(a)(5) to read as follows.


Sec.  40.21  Crimes involving moral turpitude and controlled substance 
violators.

    (a) * * *
    (5) Effect of pardon by appropriate U.S. authorities/foreign 
states. An alien shall not be considered ineligible under INA 
212(a)(2)(A)(i)(I) by reason of a conviction of a crime involving moral 
turpitude for which a full and unconditional pardon has been granted by 
the President of the United States. A legislative pardon, a pardon by 
the Governor of a State of the United States, or a pardon, amnesty, 
expungement of penal record or any other act of clemency granted by a 
foreign state shall not serve to remove a ground of ineligibility under 
INA 212(a)(2)(A)(i)(I).
* * * * *


Sec.  40.22  [Amended]

0
3. Revise Sec.  40.22(c) to read as follows.


Sec.  40.22  Multiple criminal convictions.

* * * * *
    (c) Effect of pardon by appropriate U.S. authorities/foreign 
states. An alien shall not be considered ineligible under INA 
212(a)(2)(B) by reason in part of having been convicted of an offense 
for which a full and unconditional pardon has been granted by the 
President of the United States. A legislative pardon, a pardon by the 
Governor of a State of the United States, or a pardon, amnesty, 
expungement of penal record or any other act of clemency granted by a 
foreign state shall not serve to remove a ground of ineligibility under 
INA 212(a)(2)(B).
* * * * *

Julie M. Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs, 
Department of State.
[FR Doc. 2024-18659 Filed 8-21-24; 8:45 am]
BILLING CODE 4710-13-P