[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Rules and Regulations]
[Pages 29467-29469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13586]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 3
[EOIR No. 101F; AG Order No. 1970-95]
RIN 1125-AA05
Citizenship Requirement for Employment
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule requires that employees hired by the Executive
Office for Immigration Review (EOIR or Agency) be citizens of the
United States of America. This rule exempts EOIR from the Immigration
Reform and Control Act of 1986's general prohibition of discrimination
based on citizenship status and supplements E.O. 11935, which requires
United States citizenship for almost all Federal employees in the
competitive service.
EFFECTIVE DATE: July 5, 1995.
FOR FURTHER INFORMATION CONTACT:
Gerald S. Hurwitz, Counsel to the Director, Executive Office for
Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church,
Virginia 22041, Telephone: (703) 305-0470.
SUPPLEMENTARY INFORMATION: The Department of Justice published a
proposed rule on October 27, 1994 (59 FR 53946) in order to exempt the
Executive Office for Immigration Review (EOIR) from the general rule of
the Immigration Reform and Control Act of 1986, 8 U.S.C. 1324b(a)(1)
(IRCA), by invoking IRCA's provision for regulatory exception to the
general rule, 8 U.S.C. 1324b(a)(2)(C). The proposed rule is corollary
to E.O. 11935, 41 FR 37301 (1976), which requires United States
citizenship for almost all Federal employees in the competitive
service. The Agency did not receive any timely comments. One comment
was received well after the closing date.
The rule authorizes EOIR to require its employees and volunteers to
be citizens of the United States of America. This rule will affect EOIR
employees such as Immigration Judges, Board Members of the Board of
Immigration Appeals and their legal staffs. The primary mission of
these employees is to adjudicate or to facilitate the adjudication of
immigration-related cases. Such Agency employees and volunteers often
have access to sensitive information and handle complex and sensitive
immigration issues. Furthermore, the citizenship requirement is
designed to bolster public confidence in the proper administration of
the country's immigration laws. It is imperative that individuals who
work at EOIR, either as employees or volunteers, demonstrate their
allegiance to the United States by being able to document that they are
United States citizens.
Pursuant to E.O. 11935, 41 FR 37301 (1976), the Executive Branch
requires United States citizenship for employees hired in the
competitive service. This rule extends the citizenship requirement to
all EOIR employees and volunteers. The rule exempts EOIR from the
prohibition of discrimination based on citizenship status, pursuant to
the procedures established by IRCA. This Attorney General rule is
consistent with E.O. 11935. The rule is an exercise of the Attorney
General's authority to regulate the employment of sensitive, non-
competitive service Department of Justice employees.
Additionally, this rule allows the Agency to exercise its
discretion to hire non-citizens when necessary to accomplish the
Agency's mission. For example, this rule would permit the Director of
the Agency to authorize hiring an interpreter skilled in the English
language and an unusual foreign language when a United States citizen
interpreter is not available.
This rule draws on well-established Supreme Court jurisprudence
upholding the reservation of certain rights, such as the right to
govern, to citizens. Foley v. Connelie, 435 U.S. 291 (1978) (affirming
a requirement that police officers be citizens based on the precept
that ``[t]he act of becoming a citizen is more than a ritual * * * [The
citizen] is entitled to participate in the process of democratic
decisionmaking. Id. at 295)''). See also Ambach v. Norwick, 441 U.S. 68
(1979) (affirming a citizenship requirement for public school
teachers). The Supreme Court recognized that a citizenship employment
requirement is sometimes necessary in Bernal v. Fainter, 467 U.S. 216
(1984), holding that, ``[s]ome public positions are so closely bound up
with the formulation and implementation of self-government that the
State is permitted to exclude from those positions persons outside the
political community, hence persons who have not become part of the
process of democratic self-determination.'' Id., at 221. The Bernal
court relied on an [[Page 29468]] earlier Supreme Court case which held
inter alia, ``Aliens are by definition those outside this [political]
community.'' Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982).
The untimely comment received by the Agency objects to the rule on
three grounds. The comment states that: (1) The rule is
unconstitutional because Article III of the United States Constitution
does not require Article III judges to be citizens; (2) the rule
contravenes case law; and (3) the rule lacks a rational basis.
After careful consideration of the comment, the Agency has decided
not to follow the comment's suggestion that the rule be withdrawn or
modified. The final rule retains the language of the proposed rule for
the following reasons:
(1) The absence of a citizenship requirement for Article III judges
cannot be understood as a constitutional prohibition against a
citizenship requirement for Executive Branch immigration judges.
(2) These cases do not persuade the Agency that the rule needs
modification. Three of the four cited cases pre-date IRCA but, even
considered on the merits, these cases do not persuade the Agency that
it needs to modify this rule. The three pre-IRCA cases cited are:
Bernal v. Fainter, 467 U.S. 216 (1984) (strict scrutiny standards
applies to state law distinction based on alienage except when laws
exclude aliens from positions closely related to processes of
democratic government); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)
(rule imposing wholesale ban on aliens throughout the federal civil
service was not justified by reasons within the authority of the Civil
Service Commission to advance); and In Re Griffiths, 413 U.S. 717, 724
(1973) (Connecticut's prohibition on aliens sitting for the bar
violates equal protection because the authority of attorneys does not
``involve matters of state policy or acts of such unique responsibility
as to entrust them only to citizens,'' nor does practice of law offer
``meaningful opportunities adversely to affect the interest of the
United States'').
The comment's reliance on Bernal versus Fainter is misplaced. As
discussed above, the Bernal decision expressly states that it is
appropriate to exclude non-citizens from some government employment.
467 U.S. at 221.
The comment's analysis of Hampton versus Mow Sun Wong is not
persuasive either. At issue in Hampton was a Civil Service Commission
regulation requiring civil servants to be United States citizens.
Hampton held that a federal executive agency could discriminate on the
basis of citizenship where there is a legitimate national interest for
such discrimination. The Hampton court found that the rule at issue did
not meet the legitimate national interest standard and therefore held
the rule unconstitutional. In contrast to the Civil Service
Commission's rule, the EOIR rule meets the Hampton standard. The
national interest is served by ensuring that individuals who are
involved in the adjudication of immigration-related cases are citizens.
It is also noteworthy that subsequent to judicial invalidation of the
Civil Service Commission rule requiring citizenship in Hampton, the
identical requirement was put into place by Executive Order. E.O.
11935, 41 FR 37301 (1976). The restriction barring noncitizens from
employment in the federal competitive civil service, as authorized by
the Executive Order, is still in effect.
In Re Griffiths is inapposite to this rulemaking. Griffiths
examined whether a state had the authority to ban non-citizens from the
practice of law. In finding that such a ban violated the Equal
Protection Clause of the Fourteenth Amendment, the Court found that the
state had not meet its burden of showing that the classification was
necessary to promote or safeguard the state's interest in the
qualifications of those admitted to the practice of law. 413 U.S. at
724-727. The practice of law, the Court found, does not involve matters
of state policy or acts of such unique responsibility as to entrust
them only to citizens. Furthermore, as stated in the decision, the
practice of law does not offer meaningful opportunities adversely to
affect the interest of the United States. Id. at 724. In contrast, EOIR
employment frequently involves federal immigration matters which can
impact national policy and affect the interest of the United States.
Therefore, EOIR employment should be held exclusively by United States
citizens.
The fourth case cited by the comment, City of Orlando v. Florida,
751 F. Supp. 974 (M.D. Fla. 1990), is also factually inapposite to this
rulemaking. Orlando struck down that part of the state's loyalty oath
requiring an affirmation of citizenship. Nonetheless, the Orlando court
expressly held that, ``this ruling does not mean that the State cannot
require citizenship of Florida and/or the United States in certain
classes of employment; rather, it means only that citizenship cannot be
a prerequisite to taking the loyalty oath given to all employees and
officers of the State of Florida. * * *'' City of Orlando v. Florida,
751 F. Supp. at 976. Since this rule does not require a loyalty oath,
the narrow holding of City of Orlando does not inform this rulemaking.
(3) The rule has a rationale, namely that individuals adjudicating,
or assisting in the adjudication of, immigration laws should be able to
demonstrate allegiance to this country by virtue of their citizenship,
as addressed in more detail in other portions of the supplementary
information.
Insertion of this rule requires a slight reorganization of 8 CFR
Part 3.
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it,
certifies that this rule will not have a significant adverse economic
impact on a substantial number of small entities. 5 U.S.C. 605(b).
This rule has been drafted and reviewed in accordance with E.O.
12866, section 1(b), Principles of Regulation. The Attorney General has
determined that this rule is not a ``significant regulatory action''
under E.O. 12866, section 3(f), Regulatory Planning and Review, and
accordingly this rule has not been reviewed by the Office of Management
and Budget.
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 E.O. 12612, it is
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
List of Subjects in 8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 of title 8 is revised to read
as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3
CFR, 1949-1953 Comp., p. 1002.
2. Section 3.0 is amended by designating its existing text as
paragraph (a), and adding a heading, and by adding paragraph (b) to
read as follows:
Sec. 3.0 Executive Office for Immigration Review.
(a) Organization. * * *
(b) Citizenship Requirement for Employment. (1) An application to
work [[Page 29469]] at the Executive Office for Immigration Review
(EOIR or Agency), either as an employee or as a volunteer, must include
a signed affirmation from the applicant that he or she is a citizen of
the United States of America. Upon the Agency's request, the applicant
must document United States citizenship.
(2) The Director of EOIR may, by explicit written determination and
to the extent permitted by law, authorize the appointment of an alien
to an Agency position when necessary to accomplish the work of EOIR.
Dated: May 23, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-13586 Filed 6-2-95; 8:45 am]
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