Amendment of the Regulatory Definition of Arriving Alien

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 1

[INS Order No. 1868-97]

RIN 1115-AE87

Amendment of the Regulatory Definition of Arriving Alien

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Immigration and Naturalization Service

(Service) regulations by changing the regulatory definition of an

arriving alien. Under section 235(b)(1)(A)(i) of the Immigration and

Nationality Act (Act), which was effective on April 1, 1997, certain

arriving aliens are subject to expedited removal procedures. The

existing regulatory definition of arriving alien includes parolees

whose parole is terminated, without regard to the date of parole or the

circumstances under which parole was granted. As a matter of policy,

the Service has decided that it is appropriate to exempt from the new

expedited removal procedures aliens who were paroled into the United

States before April 1, 1997, as well as aliens who, either before or

after April 1, 1997, return to the United States pursuant to a grant of

advance parole that they applied for and obtained while physically

present in and prior to their departure from the United States. This

rule clarifies that these two types of parolees will not be subjected

to expedited removal.

DATES: Effective Dates: The interim rule is effective April 20, 1998.

Comment Date: Written comments must be received on or before June

19, 1998.

ADDRESSES: Please submit written comments in triplicate to the:

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS number 1868-97

on your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Linda Loveless, Assistant Chief Inspector, Immigration and

Naturalization Service, 425 I Street NW., Room 4064, Washington, DC

20536, telephone number (202) 616-7489.

SUPPLEMENTARY INFORMATION: The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. 104-208, which was enacted on

September 30, 1996, created new expedited removal procedures for aliens

attempting to enter the United States through fraud or

misrepresentation or without proper documents. This provision was

effective on April 1, 1997, and is applicable to aliens who are

``arriving in the United States'' as contained in section

235(b)(1)(A)(i) of the Act.

The existing regulatory definition of arriving alien includes

parolees, starting that ``[a]n arriving alien remains such even if

paroled pursuant to section 212(d)(5) of the Act.'' Including certain

parolees in the definition of arriving aliens is consistent with

section 212(d)(5) of the Act, which states that ``* * * such parole of

such alien shall not be regarded as an admission of the alien and when

the purpose of such parole shall, in the opinion of the Attorney

General, have been served the alien shall forthwith return or be

returned to the custody from which he was paroled and thereafter his

case shall continue to be dealt with in the same manner as that of any

other applicant for admission to the United States.'' Existing

regulations on the termination of parole are also consistent with the

classification of certain paroled aliens as arriving aliens, stating

that ``* * * he or she shall be restored to the status that he or she

had at the time of parole.'' 8 CFR 212.5(d)(2)(i).

The definition as currently in effect, though consistent with the

Act and prior regulations, encompasses certain groups not best regarded

as arriving aliens for purposes of the applicability of expedited

removal, such as aliens initially paroled before (often well before)

the effective date of the expedited removal provisions, and aliens

previously present in the United States (in some cases for long

periods) who departed from and returned to the United States pursuant

to advance parole. Because the Act does not contain a definition of

``arriving alien,'' it is left to the Attorney General to define the

term in a manner that conforms with

[[Page 19383]]

congressional intent as embodied in the Act. This rule clarifies that

aliens who were paroled before April 1, 1997, and aliens who return to

the United States pursuant to advance parole that they applied for and

obtained while physically present in and prior to their departure from

the United States, will not be subject to expedited removal when their

parole is terminated. This exception does not alter the legal status of

these parolees; these paroled aliens remain applicants for admission as

in the past.

This rule also amends the arriving alien definition by replacing

the reference to an alien who ``seeks admission to or transit through

the United States'' with a reference to an ``applicant for admission

coming or attempting to come into the United States at a port-of-entry,

or an alien seeking transit through the United States at a port-of-

entry.'' The new language better conveys the intent of the definition,

which is to delineate a particular segment of those aliens described in

section 235(a)(1) of the Act, which defines aliens deemed to be

applicants for admission. The term ``applicant for admission'' is a

term of art under the Act as revised by IIRIRA. Section 235(a)(1) of

the Act makes clear that an alien coming from abroad to a port in the

United States may be considered an applicant for admission regardless

of whether he or she subjectively desires admission. To the extent that

the word ``seeks'' in the existing Sec. 1.1(q) suggests that an alien

must have a subjective intent to gain admission in order to be an

arriving alien, it may be susceptible to interpretations that are not

consistent with the statute. Replacing the term ``seeks'' in the

arriving aliens definition with the term ``coming or attempting to

come'' prevents the possibility of such confusion.

Finally, the rule removes the reference to 8 CFR part 235, which

deals with inspection of persons applying for admission. This reference

is not necessary and its removal will streamline the definition of

arriving alien.

Good Cause Exception

This interim rule is effective on publication in the Federal

Register, although the Service invites post-promulgation comments

within a 60-day comment period and will address any such comments in a

final rule. For the following reasons, the Service finds that good

cause exists under 5 U.S.C. 553(b)(B) and (d)(3) for implementing this

rule as an interim rule without the prior notice and comment period

ordinarily required under that provision. First, in certain respects,

this rule simply clarifies issues that may appear ambiguous in the

existing regulation defining arriving aliens. Second, to the extent

that this rule substantively changes Service regulations, it simply

provides more advantageous treatment for the limited number of parolees

involved by exempting them from expedited removal procedures. Early

implementation will be advantageous to the intended beneficiaries of

this rule. Therefore, it is unnecessary and contrary to the public

interest to delay the implementation of this rule until after a notice

and comment period.

Regulatory Flexibility Act

The Attorney General, in accordance with 5 U.S.C. 605(b) has

reviewed this regulation and, by approving it, certifies that this rule

will not have a significant impact on a substantial number of small

entities because of the following factors: This rule makes two changes

to the existing Sec. 1.1(q). First, by changing the arriving alien

definition to provide that the expedited removal provisions will not

apply to aliens paroled into the United States prior to April 1 or

pursuant to advance parole which the aliens applied for and obtained in

the United States, this rule simply provides that, where appropriate, a

finite number of aliens will be subject to removal proceedings under

section 240 of the Act, rather than to expedited removal under section

235(b)(1)(A)(i) of the Act. This change will not affect small entities.

Second, this rule also changes the arriving alien definition to use

language that is clearer and more consistent with the Act. This change

does not alter the meaning of the regulation and does not affect small

entities.

Unfunded Mandates Reform 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 one 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 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 regulation adopted herein 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 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 interim 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 1

Administrative practice and procedures, Aliens, Immigration,

Reporting and recordkeeping requirements.

Accordingly, part 1 of chapter I of title 8 of the Code of Federal

Regulations is amended as follows:

PART 1--DEFINITIONS

1. The authority citation for part 1 continues to read as follows:

Authority: 8 U.S.C. 1101, 8 CFR part 2.

2. Section 1.1 is amended by revising paragraph (q) to read as

follows:

Sec. 1.1 Definitions.

* * * * *

(q) The term arriving alien means an applicant for admission coming

or attempting to come into the United States at a port-of-entry, or an

alien seeking transit through the United States at a port-of-entry, or

an alien interdicted in international or United States waters and

brought into the United States by any means, whether or not to a

designated port-of-entry, and

[[Page 19384]]

regardless of the means of transport. An arriving alien remains such

even if paroled pursuant to section 212(d)(5) of the Act, except that

an alien who was paroled before April 1, 1997, or an alien who was

granted advance parole which the alien applied for and obtained in the

United States prior to the alien's departure from and return to the

United States, shall not be considered an arriving alien for purposes

of section 235(b)(1)(A)(i) of the Act.

* * * * *

Dated: February 13, 1998.

Doris Meissner,

Commissioner of the Immigration and Naturalization Service.

[FR Doc. 98-10354 Filed 4-17-98; 8:45 am]

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