Nationality ProceduresReport of Birth Regulation; Passport ProceduresRevocation or Restriction of Passports Regulation

DEPARTMENT OF STATE

22 CFR Parts 50 and 51

[Public Notice 3027]

Nationality Procedures--Report of Birth Regulation; Passport

Procedures--Revocation or Restriction of Passports Regulation

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

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SUMMARY: This rule finalizes the proposed rule published February 5,

1999 (64 FR 5725) and implements sections of the Immigration and

Nationality Technical Corrections Act of 1994 (INTCA). The INTCA added

new grounds for denying, revoking or canceling a passport, and for

canceling a Consular Report of Birth. The rule authorizes the

cancellation of a Consular Report of Birth, or a certification thereof,

if it appears that such document was illegally, fraudulently, or

erroneously obtained, or was created through illegality or fraud. It

also amends the existing regulation to authorize the cancellation of a

United States passport when a person has obtained a United States

passport illegally or erroneously, or when the Department of State has

been notified that a naturalized person whose order of admission to

citizenship and certificate of naturalization, on the basis of which

the passport was issued, have been canceled or set aside as the result

of a judicial denaturalization procedure.

Finally, the rule amends regulations by replacing the procedures

for appeal of adverse passport action. Other agency regulations contain

provisions for the organization and operation of the Board of Appellate

Appeal of the Department of State. Under this rule, the Board of

Appellate Review no longer has jurisdiction to consider appeals from

adverse passport actions. The decision of the Deputy Assistant

Secretary of State for Passport Services is final.

EFFECTIVE DATE: April 22, 1999.

FOR FURTHER INFORMATION CONTACT: Sharon E. Palmer-Royston, Chief, Legal

Division, Office of Passport Policy, Planning and Advisory Services,

U.S. Department of State, 1111 19th Street, N.W., Suite 260,

Washington, D.C. 20524 (202) 955-0231.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule,

Public Notice 2961 at 64 FR 5725, February 5, 1999, with a request for

comments, for numerous sections of Title 22, Parts 50 and 51 of the

Code of Federal Regulations. The rule was primarily proposed to

implement provisions of the Immigration and Nationality Technical

Corrections Act of 1994, Pub. L. 103-416 (INTCA), though it also makes

a procedural change for appeal of adverse passport action. The rule was

discussed in detail in Public Notice 2961, as were the Department's

reasons for the changes to the regulations. The rules incorporate

changes to those sections in Parts 50 and 51 explained below.

A passport when issued for its full validity period and a ``Report

of Birth Abroad of a Citizen of the United States'', issued by a

consular officer to document a citizen born abroad, are documents

established as proof of United States citizenship by the provisions of

section 33 of the Department of State Basic Authorities Act of 1956, as

amended (22 U.S.C. 2705). 8 U.S.C. 1504 (108 Stat. 4309, October 25,

1994) authorizes the Secretary of State to cancel either of these

documents if it appears that they were obtained illegally, fraudulently

or erroneously. The rule amends the regulations by providing for a

post-cancellation hearing when a Consular Report of Birth, or

certification thereof, is canceled. The provisions of 22 CFR 51.75

already provide for notification in writing of the reasons for the

revocation and of the procedures for review to any person who is the

subject of a passport cancellation and revocation on the grounds, among

others, that the passport was obtained illegally, fraudulently or

erroneously. Procedures for review include a hearing available under

subsections 51.80 through 51.89 of the passport regulations in 22 CFR

part 51. Such a hearing concerns only the extent to which the passport

was illegally, fraudulently or erroneously obtained and not the

citizenship status of the person in whose name the document was issued.

A district court of the United States may denaturalize an

individual in a judicial proceeding on the grounds that such order and

certificate of naturalization were illegally procured or were procured

by concealment of a material fact or by willful misrepresentation. Any

person who is the subject of a passport revocation due to judicial

denaturalization, i.e., by reason of noncitizenship, is not entitled to

a hearing by the Department of State, pursuant to the provisions in 22

CFR 51.80(a).

The Board of Appellate Review of the Department of State has had

jurisdiction to consider appeals from decisions of

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the Office of Passport Services that constitute adverse action

affecting a passport: denial, revocation, or limitation. This

jurisdiction has been infrequently utilized, and an adverse action can

be reviewed fairly and efficiently without the same kind of

administrative hearing that the Board conducts in loss of nationality

cases. Changes in the applicable laws, their interpretation, and

practice thereunder now make it even more unlikely that administrative

appeals will be taken. Accordingly, 22 CFR part 7 is being amended by

eliminating this particular administrative appeal jurisdiction. This

amendment to 22 CFR part 51, Subpart F, reflects that change and

replaces an appeal with a request for reconsideration.

In current practice, the most common adverse passport action is

denial or revocation based upon grounds set forth in 22 CFR section

51.70(a), such as being subject to a Federal warrant of arrest or being

under court ordered restraint. In these cases, the Board of Appellate

Review or other appellate body within the Department of State has no

authority to affect the underlying ground for adverse passport action,

so that this rule results in no change in existing practice. Similarly,

passport denial or revocation as set forth in 22 CFR subsection

51.70(b)(4), the Secretary of State's determination that activities of

the affected national abroad are causing or are likely to cause serious

damage to the national security or the foreign policy of the United

States, has not been delegated by the Secretary and is not subject to

subordinate review.

Accordingly, the findings of fact and recommendations resulting

from a hearing before a hearing officer are referred to the Deputy

Assistant Secretary for Passport Services for decision instead of to

the Assistant Secretary for Consular Affairs. The rule permits the

adversely affected person to request reconsideration by the Deputy

Assistant Secretary, but the initial decision or the decision based

upon request for reconsideration, as the case may be, is final.

The rule also amends 22 CFR section 51.84 by substituting a more

general statement of legal qualifications for representatives for the

current reference to the qualification set by the Board of Appellate

Review.

Finally, the rule makes clear that nothing in revised 22 CFR

section 51.89 bars an adversely affected person from submitting a new

passport application as provided for in 22 CFR part 51, Subparts B

through D.

Analysis of Comments

The proposed rule was published February 5, 1999 at 64 FR 5725. The

commenting period was closed March 8, 1999. The Department received one

inquiry that concerned the change in regulations to replace the

procedures for appeal of adverse passport action. The inquirer was

concerned that eliminating jurisdiction for the Board of Appellate

Review to consider appeals from adverse passport actions would deny

procedural due process where the adverse action was taken on grounds of

noncitizenship. However, a person who has been denied a passport on

grounds that they are not a national of the United States may seek a

declaration of their nationality in U.S. district court pursuant to the

provisions of 8 U.S.C. 1503(a).

Final rule

This rule is not expected to have a significant economic impact on

a substantial number of small entities under the criteria of the

Regulatory Flexibility Act, 5 U.S.C. 605(b). This rule imposes no

reporting or recordkeeping action from the public requiring the

approval of the Office of Management and Budget under the Paperwork

Reduction Act requirements. This rule has been reviewed as required by

E.O. 12988 and determined to be in compliance therewith. This rule is

exempted from E.O. 12866 but has been reviewed and found to be

consistent therewith. The proposed rule was submitted for review in

accordance with 5 U.S.C. 801 et seq., as amended.

List of Subjects

22 CFR Part 50

Citizenship and Naturalization.

22 CFR Part 51

Administrative practice and procedure, Drug traffic control,

Passports and visas, Reporting and recordkeeping requirements.

Accordingly, 22 CFR Parts 50 and 51 are amended as follows:

PART 50--NATIONALITY PROCEDURES

1. The authority citation for Part 50 is revised to read as

follows:

Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104, 1502, 1503 and 1504.

2. Section 50.7 is amended by adding a new paragraph (d) as

follows:

Sec. 50.7 Consular Report of Birth Abroad of a Citizen of the United

States of America.

* * * * *

(d) A consular report of birth, or a certification thereof, may be

canceled if it appears that such document was illegally, fraudulently,

or erroneously obtained, or was created through illegality or fraud.

The cancellation under this paragraph of such a document purporting to

show the citizenship status of the person to whom it was issued shall

affect only the document and not the citizenship status of the person

in whose name the document was issued. A person for or to whom such

document has been issued or made shall be given at such person's last

known address, written notice of the cancellation of such document,

together with the specific reasons for the cancellation and the

procedures for review available under the provisions in 22 CFR 51.81

through 51.89.

PART 51--PASSPORTS

1. The authority citation for Part 51 is revised to read as

follows:

Authority: 22 U.S.C. 211a; 22 U.S.C. 2651a, 2671(d)(3), 2714 and

3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p 570;

sec. 129, Pub. L. 102-138, 105 Stat. 661; 8 U.S.C. 1504.

2. Section 51.72 is amended by revising paragraph (b) and adding

paragraph (c) as follows:

Sec. 51.72 Revocation or restriction of passports.

* * * * *

(b) The passport has been obtained illegally, by fraud, or has been

fraudulently altered, or has been fraudulently misused, or has been

issued in error; or

(c) The Department of State is notified that a certificate of

naturalization issued to the applicant for or bearer of the passport

has been canceled by a federal court.

3. Section 51.80 is revised to read as follows:

Sec. 51.80 Applicability of Secs. 51.81 through 51.89.

(a) The provisions of Secs. 51.81 through 51.89 apply to any action

of the Secretary taken on an individual basis in denying, restricting,

revoking or invalidating a passport or a Consular Report of Birth, or

in any other way adversely affecting the ability of a person to receive

or use a passport except action taken by reason of:

(1) Noncitizenship,

(2) Refusal under the provisions of Sec. 51.70(a)(8),

(3) Refusal to grant a discretionary exception under the emergency

or humanitarian relief provisions of Sec. 51.71(c), or

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(4) Refusal to grant a discretionary exception from geographical

limitations of general applicability.

(b) The provisions of this subpart shall otherwise constitute the

administrative remedies provided by the Department to persons who are

the subject of adverse action under Secs. 51.70, 51.71 or 51.72.

Sec. 51.83 [Amended]

5. Section 51.83 is amended by revising the phrase ``Administrator

of'' to read ``Deputy Assistant Secretary for Passport Services in''

and by removing ``Security and''.

Sec. 51.84 [Amended]

6. Section 51.84 is amended by revising the phrase ``must possess

the qualifications prescribed for practice before the Board of

Appellate Review'' to read ``must be admitted to practice in any State

of the United States, the District of Columbia, or any territory or

possession of the United States''.

7. Section 51.89 is revised to read as follows:

Sec. 51.89 Decision of Deputy Assistant Secretary for Passport

Services.

The person adversely affected shall be promptly notified in writing

of the decision of the Deputy Assistant Secretary for Passport

Services, and, if the decision is adverse to that person, the

notification shall state the reasons for the decision. The notification

shall also state that the adversely affected person may request

reconsideration within 60 days from the date of the notice of the

adverse action. If no request is made within that period, the decision

is considered final and not subject to further administrative review; a

decision on a request for reconsideration is also administratively

final. Nothing in this section, however, shall be considered to bar the

adversely affect person from submitting a new passport application as

provided for in subparts B through D of this part.

Dated: April 9, 1999.

Donna J. Hamilton,

Acting Assistant Secretary for Consular Affairs.

[FR Doc. 99-10116 Filed 4-21-99; 8:45 am]

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