[Federal Register Volume 59, Number 57 (Thursday, March 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6993]
[[Page Unknown]]
[Federal Register: March 24, 1994]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 212
[INS No. 1344-91; AG Order No. 1856-94]
RIN 1115-AC90
Mariel Cuban Parole Determinations
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule clarifies and expands the discretionary authority of
the Immigration and Naturalization Service (the Service), under the
Cuban Review Plan, to withdraw parole approval for excludable Mariel
Cubans where circumstances make it impossible to execute the parole
decision, and release of the detainee is contrary to the public
interest. It further provides for flexibility in the scheduling of
parole reviews in the case of a new or returning Mariel Cuban detainee
whose previous immigration parole has been revoked. These changes are
necessary to reduce administrative costs and to clarify the status of
the detainee whose parole decision cannot be implemented.
EFFECTIVE DATE: March 24, 1994.
FOR FURTHER INFORMATION CONTACT:
Joan Lieberman, Assistant 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: On May 7, 1991, a proposed rule to amend 8
CFR 212.12(e) and 212.12(g)(1), with request for public comments, was
published in the Federal Register, at 56 FR 21100. The comment period
expired on June 6, 1991. The Service received four comments,
representing the views of an alien advocacy organization, a Federal
Government agency, and private attorneys. The Service greatly
appreciates these comments. Each comment has been considered and some
aspects of the comments have been taken into account in this rule.
This rule will revise and expand the discretionary authority of the
Service under 8 CFR part 212 to withdraw parole approval previously
authorized for excludable Mariel Cubans where circumstances warrant a
reversal of the parole approval decision. The proposed changes amend
the current regulation, which does not provide the cases where
sponsorship is declined or appropriate sponsorship is unavailable. The
amendments clarify the authority of the Associate Commissioner for
Enforcement to withdraw parole of a detainee prior to release for any
appropriate reason, not merely because of the detainee's conduct.
Finally, the proposed changes will provide for greater flexibility in
the parole review process for Mariel Cubans who are subject to
repatriation.
Only one comment was received on the proposed amendment to 8 CFR
212.12(g)(1). That comment suggested word changes to the proposed
amendment. The suggested change has been incorporated in the final
rule, which replaces the phrase ``if such detainee's return to Cuba has
been negotiated'' with ``if such detainee's prompt deportation is
practicable and proper.''
The remainder of the comments addressed the proposed changes to 8
CFR 212.12(e). One commenter indicated that the detainee should not be
advised of a release decision if the Service is aware that the few
programs that are available for the placement of released detainees
will not accept those detainees. Unfortunately, this situation may
arise despite Service efforts to prevent its occurrence. It is beyond
the scope of this rule to address that issue. However, one commenter
suggested that the panels making release decisions should be informed
of the criteria used by the Community Relations Service and the Public
Health Service in determining whether an individual is suitable for
their programs. The Service has and will continue to address this issue
with the review panels.
Two commenters expressed concern that those making the placement
decisions sometimes rely on incomplete, outdated, or inaccurate
information. The Service attempts throughout the parole process to
obtain updated, accurate information and to make reasonable efforts to
identify suitable sponsorship opportunities, as described in 8 CFR
212.12(f). For example, detainees are asked at the time of each panel
interview for the names of potential sponsors. In order to further
address this concern, however, the Service, where appropriate, may
extend an additional opportunity to detainees to demonstrate that there
are unexplored reasonable sponsorship alternatives.
One commenter asserted that the proposed rule was too broad in
scope. The commenter also faulted the proposal because it does not
require the Service to notify detainees of the reasons for withdrawal
of parole approval, and advise them of what efforts had been made to
secure sponsorship. Furthermore, the commenter objected that the
proposed rule does not provide detainees with an opportunity to secure
appropriate sponsorship. The Service has attempted to provide such
notification whenever possible in cases where suitable sponsorship has
not been located. Such notification specifies what sponsorship efforts
have been made and the results of each attempt to secure suitable
sponsorship. Where appropriate, detainees may be provided with the
opportunity to submit evidence of appropriate sponsorship prior to
withdrawal of parole approval. Further, if the detainee's parole
approval is withdrawn, he or she will continue to receive a yearly
interview at which time he or she may advise the Service of any
sponsorship opportunities.
This same commenter also asserted that the proposed rule fails to
provide independent review of the decision to repatriate an eligible
detainee. It is beyond the scope of this regulation to address that
issue. This rule deals solely with parole of Mariel Cubans, rather than
repatriation procedures and determinations.
One commenter contended that the Associate Commissioner for
Enforcement should not be permitted to withdraw parole approval for
reasons that do not relate to the established guidelines for parole
release. However, the revocation authority exercised pursuant to 8 CFR
212.12(e) is identical to that which was granted by the Attorney
General to the Departmental Panels in 8 CFR 212.13. The ultimate
criteria for the Associate Commissioner for Enforcement to follow in
determination of parole release under both 8 CFR 212.12(e) and 212.13
is set forth in section 212(d)(5)(A) of the Immigration and Nationality
Act, 8 U.S.C. 1182(d)(5)(A). When a detainee cannot be sponsored by
someone who can help him or her integrate into the community, that fact
is a significant consideration in determining whether the detainee's
release on parole is in the public interest. Without an appropriate
support system, vocational training, and essential social skills, the
detainee will be unable in many instances to maintain acceptable
behavior upon release. This difficulty is recognized in 8 CFR
212.12(f), which prohibits release without suitable sponsorship or
placement. The Service is committed to the task of locating suitable
placement for each detainee whose release has been approved. However,
administration of the Cuban Review Program has been severely
handicapped by cases where suitable placement cannot be secured. In
such cases, the detainee remains in custody without any resolution of
his or her status. In sponsorship problem cases, parole approval will
be withdrawn only after reasonable efforts to secure appropriate
placement and after the detainee, where appropriate, has been afforded
an opportunity to demonstrate reasonable sponsorship alternatives. The
current process does not preclude the detainee from offering
sponsorship alternatives. In fact, many detainees do suggest
sponsorship possibilities, particularly family sponsors, some of which
may ultimately be selected for placement. The Service retains final
authority to evaluate sponsorship alternatives and to determine whether
release of a detainee is in the public interest.
Several commenters also expressed the hope that exhaustive efforts
to locate appropriate sponsorship should be made to ensure that those
detainees who have been approved for release are actually released from
custody. As indicated, the Service will make reasonable efforts to
ensure appropriate placement for each detainee approved for release.
One of these commenters also maintained that it is inappropriate to
withdraw parole approval without a hearing. The Service disagrees. See
Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991), cert.
denied, 113 U.S. 127 (1992); Fernandez-Roque v. Smith, 734 F.2d 576,
582 (11th Cir. 1984). These court decisions establish that withdrawal
of parole approval can be accomplished without a hearing. Nevertheless,
in cases of sponsorship problems, it is in the Government's best
interest to explore alternatives in order to reduce detention costs and
to ensure the safe release of an individual into the community.
Detainees are encouraged to submit sponsorship alternatives to the
Associate Commissioner for Enforcement, as appropriate.
Where the Associate Commissioner for Enforcement determines that
the inability to secure sponsorship is the sole reason behind
withdrawal of parole approval, he may, in the exercise of discretion,
give the detainee notice of that fact and the opportunity to present
proposals for appropriate placement. This authority is made
discretionary with the Associate Commissioner for Enforcement to allow
for cases where it would be inappropriate to delay the decision to
withdraw parole approval, such as where the detainee has previously
provided erroneous or inappropriate information relating to
sponsorship.
The Service benefits from the detainee's submission of reasonable
sponsorship alternatives by the potential for reduction in detention
costs. This also may assist the Service in securing the detainee's
release pursuant to the initial grant of parole approval. The
sponsorship area is particularly amenable to input from the detainee,
who may be able to provide information of reasonable sponsorship
opportunities otherwise unknown to the Service. The detainee's
participation in the placement process will help ensure that no
detainee who is approved for parole continues in custody where suitable
sponsorship is available and where identifying that sponsorship is the
only issue remaining in obtaining release to the community.
An opportunity for the detainee to present information to the
Associate Commissioner for Enforcement prior to withdrawal of parole
approval is only appropriate where the sole grounds for revocation is
the Service's inability to locate appropriate sponsorship. Under these
narrow circumstances, it may prove beneficial to solicit any
information the detainee possesses in order to implement the parole
decision. Where the detainee's parole has been revoked for other
reasons, it would be inappropriate and contrary to the public interest
to delay the revocation decision in order to solicit information from
the detainee. For example, in cases where the misconduct of the
detainee is the cause of revocation of parole approval, immediate
action is required in the interest of public safety.
One commenter was concerned that the proposed rule change could
have a major impact on future political events involving the
relationship between the Governments of the United States and Cuba.
This issue is beyond the scope of this rule. Should the Cuban Review
Plan be substantially changed or abolished, such action will be
published, as appropriate, in the Federal Register.
One commenter expressed the view that insufficient programs exist
as alternatives to detention. It is beyond the scope of this rule to
address this issue. It should be noted, however, that the Department
continues to work with other government agencies and private enterprise
to develop additional programs.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities. The rule affects only a class of
Cuban Nationals in their individual capacity who are in the custody of
the Attorney General and will have no impact on small entities.
This rule has not been reviewed by the Office of Management and
Budget pursuant to Executive Order 12866. This rule does not have
Federalism implications warranting the preparation of a Federal
Assessment in accordance with Executive Order 12612.
List of Subjects in 8 CFR Part 212
Administrative practice and procedure, Aliens, Detention,
Immigration, Parole, Passports and visas, 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 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; and 8 CFR part 2.
2. Section 212.12 is amended by revising paragraph (e), and by
adding a new sentence at the end of paragraph (g)(1), to read as
follows:
Sec. 212.12 Parole determinations and revocations respecting Mariel
Cubans.
* * * * *
(e) Withdrawal of parole approval. The Associate Commissioner for
Enforcement may, in his or her discretion, withdraw approval for parole
of any detainee prior to release when, in his or her opinion, the
conduct of the detainee, or any other circumstance, indicates that
parole would no longer be appropriate.
* * * * *
(g) * * *
(1) * * * In the case of a Mariel Cuban who is in the custody of
the Service, the Cuban Review Plan Director may, in his or her
discretion, suspend or postpone the parole review process if such
detainee's prompt deportation is practicable and proper.
* * * * *
Dated: March 15, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-6993 Filed 3-23-94; 8:45 am]
BILLING CODE 4410-10-M
