05-12219. Aliens Inadmissible Under the Immigration and Nationality Act-Unlawful Voters

AGENCY:

Department of State.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule amends the Department's regulations concerning visa ineligibility for aliens who vote unlawfully. We are amending the regulations to comply with the provisions of the Child Citizenship Act of 2000.

DATES:

The effective date of this regulation is July 21, 2005.

Comment Date: The Department will accept comments from the public up to 60 days from August 22, 2005.

ADDRESSES:

You may submit comments, identified by any of the following methods:

E-mail: [e-mail]. You must include the RIN and the words “Unlawful Voters Regulation” in the subject line of your message.

Mail: Chief, Legislation and Regulations Division, Visa Office, U.S. Department of State, 2401 E Street, NW., Washington, DC 20520-0106.

Fax: [phone]. You must include the RIN and the words “Unlawful Voters Regulation” in the subject line of your message.

Persons with access to the internet may also view this notice and provide comment by going to the regulations.gov Web site at: http://www.regulations.gov/​index.cfm.

FOR FURTHER INFORMATION CONTACT:

Penafrancia D. Salas, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106, 202-663-2878 or email to [e-mail].

SUPPLEMENTARY INFORMATION:

What Is the Authority for This Rule?

Section 201(b)(1) of Public Law 106-395, the Child Citizenship Act of 2000, amended section 212(a)(10) of the Immigration and Nationality Act (INA) by adding an exception to the ground of inadmissibility, INA 212(a)(10)(D), for aliens who voted in violation of U.S. law.

What Is the Exception to the Ground of Inadmissibility?

Under new INA 212(a)(10)(D), in general, an alien will continue to be inadmissible, and therefore ineligible for a visa, if the alien has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation. Nevertheless, pursuant to the new exception, the alien shall not be considered to be inadmissible under any provision of this subsection based on such violation if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen.

Regulatory Analysis and Notices

Administrative Procedure Act

Publication of this regulation as an interim rule is based upon the “good cause” exceptions found 5 U.S.C. 553(b). The amendment to the regulation simply implements a legislative mandate without interpretation and codifies current practices. Therefore, we determined that it is appropriate to publish this rule as an interim rule. Nevertheless, we will solicit comments from the public.

Regulatory Flexibility Act/Executive Order 13272: Small Entities

The Department of State, 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.

Unfunded Mandates 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 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 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 import markets.

Executive Order 12866

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is not promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Order 13132

This regulation 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 require consultations or warrant the preparation of a federalism summary impact statement.

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.

List of Subjects in 22 CFR Part 40

• Aliens
• Immigration
• Passports and visas

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

1. The authority citation for part 40 shall continue to read:

Authority: 8 U.S.C. 1104.

2. Revise § 40.104 to read as follows:

§ 40.104

Unlawful voters.

(a) Subject to paragraph (b) of this section, an alien is ineligible for a visa if the alien has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation.

(b) Such alien shall not be considered to be ineligible under paragraph (a) of this section if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen.

Dated: June 8, 2005.

Maura Harty,

Assistant Secretary for Consular Affairs, Department of State.