Mariel Cuban Parole Determinations

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whose previous immigration parole has been revoked.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