[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Rules and Regulations]
[Pages 39217-39218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19542]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 211
[INS No. 1920-98]
RIN 1115-AE47
Waiver of Inadmissibility for Certain Applicants for Admission as
Permanent Residents
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule makes a technical correction to the Immigration and
Naturalization Service (Service) regulations that govern the
documentary requirements for immigrants and corresponding waivers. The
regulations at 8 CFR 211.1(b)(3) permit District Directors, in
individual cases, to waive the inadmissibility of aliens seeking
admission for permanent residence or as returning residents who fail to
present the appropriate travel documents. This rule will clarify that
aliens granted waivers pursuant to 8 CFR 211.1(b)(3) are not exempt
from the visa requirement, and that carriers remain liable for fines
imposed under section 273(a) of the Act for bring these aliens to the
United States, even if the District Director grants a waiver of
inadmissibility to the alien at the time of admission into the United
States as a returning resident. This change is necessary to conform the
language of the regulations with the statutory authority which exists
to impose a fine when an alien is transported to the United States
without the proper documentation.
DATES: This rule is effective July 22, 1998.
FOR FURTHER INFORMATION CONTACT: Una Brien, Immigration and
Naturalization Service, 1400 Wilson Blvd., Suite 210, Arlington,
Virginia 22209, telephone (202) 305-7018.
SUPPLEMENTARY INFORMATION: Section 273 of the Immigration and
Nationality Act (the Act) imposes a fine on any carrier who brings to
the United States any alien who lacks the passport or visa required by
law. Section 211(b) of the Act permits the Attorney General to waive
the inadmissibility of aliens seeking admission as returning residents
who lack the necessary travel documents. Under the jurisprudence
developed by the Board of Immigration Appeals (BIA), whether granting a
waiver of inadmissibility relieves the carrier of liability for a fine
depends on how the regulation governing the exercise of this waiver
authority is written. See e.g., Matter of ``Flight SR-4'', 10 I&N Dec.
197 (BIA 1963). The BIA has treated regulations that provide for a
``blanket'' waiver as also relieving the carrier of fine liability. The
carrier remains liable, however, if the regulations provide for waivers
only in individual cases. See Matter of Plane ``CUT-604'', 7 I&N Dec.
701, 702 (BIA 1958) citing Matter of PAA Plane ``Flight 204'', 6 I&N
Dec. 810 (BIA 1955).
On March 22, 1996, the Service published a final rule in the
Federal Register at 61 FR 11717, which amended the regulations
governing granting waivers of inadmissibility to nonimmigrants. The
purpose of the amendment was to ensure that when the Service grants a
waiver of inadmissibility, the carrier is not relieved from fine
liability. On September 30, 1996, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
[[Page 39218]]
Pub. L. 104-208, which required the Service to amend major portions of
its regulations. On January 3, 1997, the Service published a proposed
rule in the Federal Register, at 62 FR 444, and a subsequent interim
rule on March 6, 1997, at 62 FR 10312, implementing the provisions of
Pub. L. 104-208.
In addition, the proposed and interim rules also restructured major
portions of 8 CFR, including part 211 to make it easier to understand.
However, as contained in the proposed and interim rule, the exceptions
to the visa documentary requirements referenced in Section 211.1(a)
should have been limited to those circumstances listed in ``paragraph
(b)(1)'' and not all of ``paragraph (b).'' The classes of aliens listed
in section 211.1(b)(1), e.g., a child born after the issuance of an
immigrant visa to the child's accompanying parent or a child born
during the temporary visit abroad of a mother who is a lawful permanent
resident or a national of the United States, are identical to those
specifically excepted from the visa documentary requirement prior to
the restructuring of the regulation. See 8 CFR 211.1(a) (1997). The
erroneous reference to ``paragraph (b)'' may mislead some readers into
thinking that returning lawful permanent residents who apply for and
are granted a waiver of the visa requirement on a case by case basis,
i.e., the class of aliens described in 8 CFR 211.1(b)(3), are exempt
from presenting entry documents and, by extension, that a carrier which
transports such as alien to the United States no longer incurs
liability under section 273(b) of the Act. This ambiguity in the
meaning of the interim rule was the result of an administrative
oversight rather than a deliberate policy decision.
Accordingly, this final rule amends Sec. 211.1(a) to revise the
reference to ``paragraph (b)'' to read ``paragraph (b)(1)''. This is
intended to clarify, once again, that a waiver of inadmissibility does
not relieve the carrier of fine liability for carrying an alien
passenger without the required documents.
Good Cause Exception
The amendment made by this rule corrects an inadvertent error which
was included in a proposed rule published by the Service in the Federal
Register on January 3, 1997, at 62 FR 444, and in the subsequent
interim rule published in the Federal Register on March 6, 1997, at 62
FR 10312. As stated in the supplemental portion of the proposed rule,
62 FR 452, the Service was engaged in a comprehensive review of all of
its regulations in an effort to reduce them and make them more readable
and understandable. It was the Service's intention to restructure 8 CFR
part 211 to make it easier to comprehend. It was never the Service's
intention to undermine the Service's ability to impose fines for
violations under section 273 of the Act. Although the Service intended
to correct this technical error when a final rule was published, the
Service believes that good cause exists to issue a separate final rule
to amend Sec. 211.1(a) to correct the error immediately. This rule has
been published as a proposed and interim rule as part of a larger rule
with opportunity for public comment, therefore, it is unnecessary to
issue it now as a proposed rule.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Commissioner has reviewed this regulation, and by
approving it, certifies that the rule will not have a significant
economic impact on a substantial number of small entities, as defined
by 5 U.S.C. 601(6). This rule merely removes any ambiguity between the
current regulations and section 273 of the Act by correcting an
inadvertent error in its regulations that is addressed in the
supplemental portion of this final rule.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, or by the private sector, of $100 million or more,
in the aggregate, in any one year, and it will not significantly or
uniquely affect small governments. Therefore, the Commissioner
determined that no actions were 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 Fairness 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 the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The rule adopted herein will not have substantial direct effects on
the States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988 Civil Justice Reform
This final rule meets the applicable standards set forth in
sections (3)(a) and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 211
Aliens, Immigration, Passports and visas, Reporting and
recordkeeping requirements.
Accordingly, part 211 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 211--DOCUMENTARY REQUIREMENTS: IMMIGRANTS; WAIVERS
1. The authority citation for part 211 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.
Sec. 211.1 [Amended]
2. In Sec. 211.1 paragraph (a) introductory text is amended by
revising the reference to ``paragraph (b)'' to read ``paragraph
(b)(1)''.
Dated: May 26, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-19542 Filed 7-21-98; 8:45 am]
BILLING CODE 4410-10-M
