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INS
Issues Final Rule for Alien Registration for Certain Nationalities
August 12, 2002
The Immigration and Naturalization Service has issued a Final
Rule regarding the registration and monitoring of non-immigrants from
certain designated countries. The entire rule, published at
67 FR 52584, appears below:
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[Federal Register: August 12, 2002 (Volume 67, Number 155)]
[Rules and Regulations]
[Page 52583-52593]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr12au02-18]
[[Page 52583]]
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Part VI Department of Justice
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Immigration and Naturalization Service
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8 CFR Parts 214 and 264
Registration and Monitoring of Certain Nonimmigrants; Final Rule
[[Page 52584]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 214 and 264
[INS No. 2216-02; AG Order No. 2608-2002]
RIN 1115-AG70
Registration and Monitoring of Certain Nonimmigrants
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: Recent terrorist incidents have underscored the need to broaden the
special registration requirements for nonimmigrant aliens from certain
designated countries, and other nonimmigrant aliens whose presence in the United
States requires closer monitoring, to require that they provide specific
information at regular intervals to ensure their compliance with the terms of
their visas and admission, and to ensure that they depart the United States at
the end of their authorized stay. On June 13, 2002, the Department published a
proposed rule to modify the regulations to require certain nonimmigrant aliens
to make specific reports to the Immigration and Naturalization Service: upon
arrival; approximately 30 days after arrival; every twelve months after arrival;
upon certain events, such as a change of address, employment, or school; and at
the time they leave the United States. This final rule adopts the proposed rule
without substantial change.
DATES: This rule is effective September 11, 2002.
FOR FURTHER INFORMATION CONTACT: Dan Brown, Office of the General Counsel,
Immigration and Naturalization Service, 425 I Street, NW, Room 6100, Washington,
DC 20536, telephone (202) 514-2895.
SUPPLEMENTARY INFORMATION:
Introduction
This final rule applies to only a small percentage
of the more than 35 million nonimmigrant aliens who enter the United States each
year: (1) Nonimmigrant aliens from selected countries specified in notices
published in the Federal Register, and (2) individual nonimmigrant aliens who
are designated by a consular officer outside the United States or an inspection
officer at the port of entry based on information that indicates the need for
closer monitoring of the alien's compliance with the terms of his or her visa or
admission because of the national security or law enforcement interests of the
United States. This rule expands the existing special registration rule to
require that these designated nonimmigrant aliens provide more detailed and
frequent information to ensure that they comply with the conditions of their
visas and admissions, along with leaving the United States.
Adoption of the Proposed Rule Without Substantial Change
The Department received 14 comments on the proposed
rule (67 FR 40581, June 13, 2002). Some comments supported the adoption of the
proposed rule while other comments opposed the proposed rule. In several
instances, specific comments repeated the views of other comments in a different
form. Rather than respond to each comment individually, the Department is
responding to the nature of the comments by subject matter.
In adopting the proposed rule as a final rule, the
Department reiterates and adopts the Supplementary Information included in the
proposed rule as explaining the final rule. The Department has made one set of
changes in the final rule to reflect the fact that the special registration
system will be paperless; the Department will not be developing a paper form to
collect information. The second set of changes clarifies and limits the scope
and applicability of 8 CFR 264.1(f)(8). The Department provides the following
additional information in responding to the comments received. Response to
Comments Received
A. Constitutional Implications
1. Notice of the Requirements of the Rule
Several commenters argued that the notice requirement
for nonimmigrant aliens subject to special registration who are already residing
in the United States violates their due process rights. One commenter suggested
that there needed to be a more formal notification structure developed before
provisions relating to nonimmigrant aliens subject to special registration
already in the United States could be enforced because the proposal affects such
a small segment of society. The commenter argued that these individuals should
be given some other way to voice their opinions other than the notice and
comment period, citing Londoner v. City & County of Denver, 210 U.S. 373
(1908), and the notion that due process requires that they be given an
individualized hearing. The commenter argues that those individuals, with
limited English proficiency or literacy, are not being given adequate notice and
that the opportunity to be heard must be tailored to the regulated group.
Another commenter suggested that publication in the Federal Register as public
notification of a requirement is a legal fiction.\
These comments raise an issue related to two different
processes. First, the commenters appear to raise the issue of whether the
publication of the proposed and final rule in the Federal Register is sufficient
notice of the content and applicability of the regulation under the Due Process
Clause of the Fifth Amendment to the United States Constitution. Second, the
commenters appear to raise the issue of whether publication of a notice in the
Federal Register, as required by Sec. 264.1(f)(4), of the applicability of the
requirements of this rule to a specific country or class, is sufficient notice
of the application of the rule under the Due Process Clause.
Such notice by publication in the Federal Register
unequivocally constitutes sufficient notice for due process purposes. Congress
has specified this form of notice and made that notice binding on all who are
within the jurisdiction of the United States. 44 U.S.C. 1507 (publication in
Federal Register ``is sufficient to give notice of the contents of the document
to a person subject to or affected by it''). The courts have clearly relied upon
the adequacy of notice by publication in the Federal Register since the Federal
Register's inception. See, e.g., Lyng v. Payne, 476 U.S. 926, 942-43 (1986);
Dixson v. United States, 465 U.S. 482, 489 n.6 (1984); Federal Crop Ins. Corp.
v. Merrill, 332 U.S. 380, 385 (1947). The Department rejects the notion that
more notice is required as a matter of law.
The Department does recognize that the efficacy of the
law is more assured when those subject to the law have actual notice of its
terms, and, accordingly, the Department is taking steps in addition to
publication in the Federal Register to publicize its actions relating to
immigration matters. When classes of nonimmigrant aliens already in the United
States are required to present themselves for special registration, the
Department expects to publicize such announcements in additional fora, beyond
what is required by the Constitution and the laws of the United States. However,
as a legal matter there is no question that one who is within the jurisdiction
of the law of the United States, whether by statute or regulation, must comply
with the terms of the law. It is the individual's responsibility to know the
law.
[[Page 52585]]
2. Notice of Violative Conduct
One commenter argued that the proposed rule, in
defining the special registration requirements and applying the Attorney
General's interpretive authority to violations of the requirements as indicia of
disregard for the laws of the United States and the potential for further
violations, creates a new violation of the Immigration and Nationality Act
(``INA'' or ``Act'') that would be both obscure and de minimis, based only on
publicity by Federal Register notices rather than actual notice. The commenter
suggests that this rule would provide the most technical and non-substantive
bases by which individuals could be detained and eventually removed.
The Department disagrees. As noted above, all who are
subject to the jurisdiction of the laws of the United States are required to
abide by those laws. Notice of the laws by publication is sufficient notice
under the Constitution.
3. Discrimination
Several commenters argued that the rule targets
specific minority ethnic groups and members of a specific religion, i.e., Arabs
and Muslims. The commenters noted that several individuals currently being
detained or prosecuted would not have been covered by the specific criteria set
forth in the proposed rule. One commenter in particular argued that the proposal
``will further stigmatize innocent Arab and Muslim visitors * * * who have
committed no crimes and pose no danger to us.''
The Department disagrees with this analysis. There are
several means by which an alien may become subject to special registration.
First, as provided in the regulations being amended and in the final rule, the
Attorney General may designate specific countries, the nationals and citizens of
which are subject to special registration. Currently, nonimmigrant aliens from
Iran, Iraq, Libya, and Sudan are subject to special registration requirements,
including fingerprinting. 63 FR 39109 (July 21, 1998). Accordingly, contrary to
what some commenters appear to believe, this method is not new. Second, a
specific alien may be subject to special registration if intelligence
information indicates that the individual, while qualified for a visa, warrants
closer attention. Pre-established criteria will be applied. These criteria will
be based on intelligence regarding the activities and behavior patters of
terrorist organizations, not on racial, ethnic, or religious stereotypes.
The Department strongly disagrees with the implication
that it would develop or apply such criteria in an invidious manner on the basis
of race, religion, or membership in a social group. The Department strongly
disagrees with the premise of the comments that the rule is invidiously
discriminatory. Congressional enactments and regulations concerning immigration
have historically drawn distinctions on the basis of nationality and related
criteria. The political branches of the government have plenary authority in the
immigration area. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); Matthews v.
Diaz, 476 U.S. 67, 80-82 (1976). In the context of immigration and nationality
laws, the Supreme Court has particularly ``underscore[d] the limited scope of
judicial inquiry.'' Fiallo, 430 U.S. at 792. The Supreme Court has stated that
over no conceivable subject is the legislative power of Congress more complete
than it is over the admission of aliens * * * [T]he power to expel or exclude
aliens [i]s a fundamental sovereign attribute exercised by the Government's
political departments largely immune from judicial control.
Id. (internal quotations and citations omitted). Congress's ``inevitable
process of `line drawing' '' in the immigration context is therefore given great
deference. Id. at 795 n.6. The substantive decision to relax requirements
for only specified nationals, while excluding all others, is among those
political decisions that are ``wholly outside the concern and competence of the
Judiciary,'' Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Frankfurter,
J., concurring). When the Executive Branch exercises authority delegated by
Congress in the immigration area, a court will not ``look behind the exercise of
that discretion.'' See Fiallo, 430 U.S. at 794-95 (citing Kleindienst v. Mandel,
408 U.S. 753 (1972)). As in Fiallo, the Attorney General must here make
compromises involving ``the inevitable process of `line drawing,' '' [whereby]
Congress has determined that certain classes of aliens are more likely than
others to satisfy national objectives without undue cost, and [it] granted
preferential status only to those classes.'' Fiallo, 430 U.S. at 795 n.6.
``Congress regularly makes rules that would be unacceptable if applied to
citizens.'' Mathews, 426 U.S. at 80. The distinctions drawn by the rule are
appropriate in the context of immigration law and national security.
The Department recognizes that a few individuals in the
United States have questioned the loyalty of some Muslim Americans to the United
States. The Department also recognizes that some American Muslims have been
targets of discrimination. Some mosques have been damaged and desecrated. A
number of Muslim Americans--and others wrongly believed to be Muslims--have been
threatened or attacked. These attacks against Muslim Americans and the Muslim
communities are not only reprehensible; like terrorism, they are also attacks
against the United States and humanity. The Federal Bureau of Investigation
(FBI) has investigated such attacks and threats against Arab, Muslim, and Sikh
Americans. The FBI has initiated more than 360 investigations in concert with
state and local law enforcement authorities. More than 100 individuals have
already been charged with federal, state, and local crimes relating to such
attacks. The Department continues to treat such crimes as civil rights
violations and will vigorously prosecute these violations.
The Department remains firmly committed to protecting
the civil rights of all individuals in the United States while seeking to
prevent acts of terrorism. The Department unequivocally rejects the notion that
the requirements of the final rule, or the criteria for application of the final
rule, to nonimmigrant aliens subject to special registration are, or are
intended to be, invidiously discriminatory.
4. Applicability of the Act
One commenter argued that the reporting structure for
nonimmigrant aliens subject to special registration once they have arrived in
the United States does not fully comply with the reporting structure formulated
in the Act. This commenter believed that section 265 of the Act (8 U.S.C. 1305)
continues to require that aliens report to the Attorney General, in writing,
their current address before January 31st of every year and that certain aliens
update this address every three months for the duration of the time that they
remain in the United States. These provisions of the Act were modified in 1981
to eliminate the ``January registration'' and 3-month provisions. The amendments
continued a 10-day notification of change of address requirement. Public Law
97-116, section 11, 95 Stat. 1617 (1981).
As discussed in the proposed rule, section 262(a) of
the Act (8 U.S.C. 1302(a)) provides that all aliens who have not previously been
registered and fingerprinted pursuant to section 221(b) of the Act (8 U.S.C.
1201(b)), have a duty to apply for registration and to be fingerprinted if they
remain in the
[[Page 52586]]
United States for 30 days or longer.\1\ Under the existing regulations at 8
CFR 264.1(a), the Immigration and Naturalization Service (``Service'' or
``INS'') registers nonimmigrants using Form I-94 (Arrival-Departure Record). As
authorized by section 262(c) of the Act (8 U.S.C. 1302(c)), however, the
Service's existing regulations at 8 CFR 264.1(e) contain general provisions
waiving the fingerprinting requirement for many nonimmigrants. Accordingly, the
vast majority of nonimmigrant aliens are admitted to the United States without
being either fingerprinted or photographed.
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\1\ The only exception is for aliens admitted as A or G nonimmigrants, which
pertain to diplomats, employees of certain international organizations, etc. INA
section 263(b)(8 U.S.C. 1303(b)).
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Notwithstanding the general registration
requirements, section 263(a) of the Act (8 U.S.C. 1303(a)) also authorizes the
Attorney General to prescribe special regulations and forms for the
registration, among other classes, of ``aliens of any other class not lawfully
admitted to the United States for permanent residence.'' Pursuant to this
section, as well as the Attorney General's general registration authority under
section 262 of the Act (8 U.S.C. 1302), the Attorney General promulgated 8 CFR
264.1(f), which authorizes the Attorney General, by notice published in the
Federal Register, to direct that certain nonimmigrant aliens from designated
foreign countries be registered, fingerprinted, and photographed by the Service
at the port of entry at the time the nonimmigrant aliens apply for admission.
See 58 FR 68024 (Dec. 23, 1993) (final rule); 63 FR 39109 (July 21, 1998)
(notice). Moreover, the Attorney General is authorized to prescribe conditions
for the admission of nonimmigrant aliens under section 214 of the Act (8 U.S.C.
1184). Section 265 of the Act (8 U.S.C. 1305) requires that all aliens who
remain in the United States for 30 days or more (other than A or G nonimmigrants)
must file a notice of change of address with the Attorney General within 10 days
of any change of address.
This final rule provides for implementation of these
requirements for nonimmigrant aliens subject to special registration. However,
this Supplementary Information also serves as a reminder to all aliens (not just
those nonimmigrant aliens subject to special registration) of their legal
obligations under section 265 of the Act to notify the Attorney General, as
delegated to the Service, within 10 days of any change of address by filing the
general change of address form, Form AR-11.
B. Efficacy of the Rule
1. Acquiring Information Prior to Travel
Several commenters suggested that data acquisition for
any effective monitoring of aliens after admission could be better performed at
the visa issuance stage. A commenter questioned whether ``it would [be] more
effective to have these biometrics collected at the U.S. Department of State
Consular Offices that would be issuing the nonimmigrant visas.'' The commenter
stated a belief that all ports of entry are, or soon will be, electronically
connected to the United States Department of State consular database in order
that, when an individual applies for admission to the United States, the
inspector at the port of entry can call up the picture and other data about the
individual.
The Department notes that the Department of State is
acquiring a great deal of information through Form DS-156, the visa application,
and related documents. These forms contain much, but not all, of the information
that would be required through special registration. Accordingly, special
registration is warranted to obtain the full array of information that is
necessary to locate aliens who violate the terms of their visas or admission.
However, even if all of the required information were acquired by the consular
officers at the point at which they issue a visa, it would still be necessary to
confirm the information--as a way of confirming identity--at the port of entry
and subsequently during the alien's stay in the United States.
The INS has been working with the State Department to
expand data sharing to ensure that Immigration Inspectors have access to the
information gathered in the visa issuance process in the Consolidated Consular
Database. As a result, this information is now available at all United States
ports-of-entry (POEs), and INS has trained inspectors on how to use that data to
detect and prevent fraud. Similarly, information is being provided to consular
officers regarding the special registration process that can be provided to
appropriate visa applicants.
2. Intelligence and Visa Disapproval
A commenter argued that the rule will not change
terrorist or criminal methods: they will either comply fully, and registration
will not prevent them from committing terrorist or criminal acts at any time;
comply upon entry, but ``go underground''; enter without inspection; or use
proxies. Several commenters contended that this system would not have acquired
the required information on several individuals currently involved in certain
notorious cases. At the same time, the commenter claimed that the rule does not
mitigate visa fraud or immigration document fraud. This commenter concluded that
fingerprinting, photographing, and periodically interviewing a person, whether
citizen or alien, cannot predict or deter future terrorist or criminal behavior.
One commenter also suggested that it was more important to deny the visa in the
first place than attempt to monitor the individual once in the United States.
Another commenter noted that the Enhanced Border
Security and Visa Entry Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543
(2002), provides for such things as the use of pre-arrival passenger manifests,
enhanced database sharing, improved technology, and increased staffing of
inspections, all with the hope of enhancing the government's ability to
interdict, outside of the United States, those who would harm America. The
commenter further noted that section 212(a)(3)(A) of the Act (8 U.S.C.
1182(a)(3)(A)) provides consular officers and immigration inspectors with broad
authority to prevent the admission of persons whom they believe may engage in
any unlawful activity from entering the United States. Given this authority, the
commenter questioned why the government would admit such persons and subject
them to special registration.
The Department agrees that, where an individual is
inadmissible, the Department of State should deny an application for a visa.
However, when an alien is admissible and is granted a visa (or enters the United
States properly without a visa), but should nevertheless be more closely
monitored in the national security interest of the United States, this rule will
provide the basis for that monitoring. The rule is not a substitute for proper
determination of visa and admission eligibility, it is only a supplemental
monitoring process for those who are eligible for a visa and admissible, but who
warrant closer monitoring based on the standards set out in the rule.
The rule must be understood as a third line of defense.
First, the Department of State must be satisfied that the individual is eligible
for a visa. Section 306 of the Enhanced Border Security and Visa Entry Reform
Act of 2002 bars the issuance of visas from a country that is a state sponsor of
international terrorism unless the Secretary of State, in consultation with the
Attorney General and the heads of
[[Page 52587]]
other appropriate agencies, makes a determination that an alien from such a
country does not pose a threat to the safety or national security of the United
States. 8 U.S.C. 1735(a).
Second, the inspecting officer must determine that the
alien is admissible. In this context, it is the alien's responsibility to prove
admissibility. INA section 212 (8 U.S.C. 1182). If the nonimmigrant alien can
satisfy these requirements, then the alien may be admitted.
However, there are national security and law
enforcement reasons why some aliens who are admissible and have visas (or enter
properly without a visa) require further monitoring. The final rule, like the
proposed rule, provides a process under which such aliens will provide
additional, confirmable information that will enable the INS to contact them
quickly if necessary and will ensure that such aliens comply with the terms of
their visas and the conditions of their admission. As for the terrorist who
complies upon entry, but seeks to go underground immediately thereafter, this
rule will provide a basis for alerting law enforcement organizations to that
fact when the would-be terrorist fails to register at the 30-day point.
3. Change of Address and Form AR-11
One commenter acknowledged that the provision requiring
filing of a change of address has long been in the statute and regulations, but
argued that its ``notorious ineffectuality has long since rendered the provision
irrelevant.'' A number of commenters noted that the Service does not maintain a
central address file and that the most effective way to file a change of address
is to file it with the office holding an application for benefits. Several
commenters raised issues concerning whether there would be any electronic
retrieval system to support the information provided; whether aliens know that
the form is required; whether any means exist to confirm receipt of a change of
address; and whether ``widespread ignorance'' of the provision renders
``virtually all ``violations'' of this provision'' not willful.
The Department has recognized the historical
shortcomings of the address notification system and has taken steps to develop
the necessary infrastructure to provide a complete address record system. For
example, the Department's Inspector General recently reported on the historical
process for recording student visas, and the failures of that system, and made
recommendations for improvement. See Office of the Inspector General, The
Immigration and Naturalization Service's Contacts with Two September 11,
Terrorists: A Review of the INS's Admissions of Mohamed Atta and Marwan Alshehhi,
its Processing of their Change of Status Applications, and its Efforts to Track
Foreign Students in the United States 187 (May 20, 2002). The existing student
visa process is being replaced by the Student and Exchange Visitor Information
System (SEVIS). 67 FR 34862 (May 16, 2002); (Proposed Rule: Retention and
Reporting of Information for F, J and M Nonimmigrants; Student and Exchange
Visitor Information System (SEVIS)); 67 FR 44344 (July 1, 2002) (Interim Rule
with Request for Comments: Allowing Eligible Schools To Apply for Preliminary
Enrollment in the Student and Exchange Visitor Information System). Moreover,
the Department has proposed changes in the forms that aliens use to ensure that
they are aware of the requirements of the Act. 67 FR 48818 (July 26, 2002)
(Proposed Rule: Address Notification to be Filed with
Designated Applications). As a part of these processes, the INS is reconfiguring
its computer systems to enhance the utilization of address and other
information. Accordingly, the Department believes that the address notification
system supporting this final rule is already sufficiently effective and will be
improved in the future.
One commenter supported overall enforcement of address
change requirements, but recommended leeway for previously unreported changes in
address and electronic filing of the form. This commenter suggested that
electronic filing would ease compliance while benefitting the INS in its efforts
to provide electronic filing of various petition types. The commenter suggests
that the vast majority of previous unreported changes of address were not
willful violations of the Act, but an oversight in light of different INS
priorities and confusion. Thus, the commenter suggests, employers and foreign
nationals often file a change of address with an INS Service Center or District
Office where a filing or petition is pending, believing this will provide INS
with the proper notification of a change of address
The Department does not disagree with the notion that
electronic filing may be beneficial, provided that biometric and other identity
confirmations can be included in such a system. However, until such a system is
fully implemented, the Department will continue to require nonimmigrant aliens
subject to special registration to make their special registrations in person to
ensure the accuracy and integrity of the special registrations. The Department
notes that the process of registration will be essentially ``paperless'' in that
information will generally be entered directly into an electronic format. While
the proposed rule refers to the information being provided in the ``form''
required by the Service, the Department has found that a paper form will not be
necessary. To ensure clarity, the Department has made minor revisions to the
final rule to eliminate the suggestion that a paper form is being developed and
will be used in special registration. The only paper process that is continued
will be that of the change of address form (AR-11) and nonimmigrant aliens
subject to special registration will be instructed at the time of their initial
registration on the proper filing of this form. The limited number of
individuals who are also within the SEVIS system will be required to notify
their schools and the Service of changes of address.
One commenter suggested that there must be assurances
that those who have previously moved without reporting a change of address will
be able to rectify this oversight without subjecting themselves to fines,
imprisonment, and possible removal. The commenter recommended that the rule
include a provision recognizing the shift in enforcement priorities, and allow
for electronically filed address corrections, while clarifying
the process to effectuate a change of address throughout the Service. The
Department has considered this idea carefully but declines to adopt it. The
concept is technically outside the scope of this rule in that it applies to all
address changes, not merely the prospective special registration system embodied
in this final rule. This rule is designed to deal with nonimmigrant aliens
subject to special registration, not the broader class of aliens.
The Department disagrees with the necessity of
providing a specific mechanism to rectify past failures to provide a change of
address, or a recognition of a ``shift'' in enforcement priorities. The
requirements of the Act have been in effect for many years and a lack of
publicity about specific enforcement of the provision does not change the legal
effect of the requirements. The commenter's suggestion that electronic filing of
changes of address should be provided does merit consideration and the
Department is considering how best to implement such an electronic filing
system.
The Department recognizes that the development and
implementation of the information technology necessary to
[[Page 52588]]
support the special registration system requires time. In particular, the
installation of data entry systems requires the acquisition of hardware in some
ports-of-entry. Accordingly, while the registration system is expected to be
brought on line in a timely fashion, it is also expected that 100 percent
coverage will not be immediately available. The Department will exercise
prosecutorial discretion, as is deemed appropriate based on the particular
circumstances, with regard to the enforcement of the system at those
ports-of-entry where the electronic system, or a manual system, is not
immediately available. This exercise of discretion not to pursue the individual
alien beyond requiring delayed compliance does not, however, absolve any alien
from the requirements of the rule.
4. Airport Inspection Facilities
Several commenters stated concern that efficient
passenger processing through POEs, airport facilities and airport operations may
be negatively impacted by the special registration entry and exit processes.
Commenters offered different solutions to perceived problems in the actual flow
of arrivals.
One commenter recommended fingerprinting and
photographing in secondary inspection areas of airports. The commenter suggested
that this would allow the majority of international passengers to be processed
efficiently through the primary inspection area, which would allow the Service
to continue to strive to meet the 45-minute passenger-processing goal. The
Department intends to conduct fingerprinting and photographing in secondary
inspection areas in airports precisely because of this reasoning, even though
there are no longer any statutorily mandated time limits for inspection.
One commenter suggested that facilities at
ports-of-entry do not have the capacity to take fingerprints and photographs.
The commenter's assertion is incorrect. The Department has been utilizing both
two- and ten-fingerprint systems for the purpose of identifying aliens and
rapidly comparing a specific set of fingerprints with existing fingerprint
files, including the Federal Bureau of Investigation's Integrated Automated
Fingerprint Identification System (IAFIS). Photographing capabilities also exist
at all ports-of-entry.
Another commenter recommended that the Service work
with international air carriers servicing United States international airports
so that registration information can be electronically transmitted via the
advanced passenger information system (APIS) to the Service and queried through
the interagency border identification system (IBIS) prior to the non-immigrant
alien's entry into the United States. This commenter noted that INS, Customs,
and international air carriers have agreed to adopt the U.N. Edifact format for
transmitting electronic information. Additionally, the commenter suggested that
INS establish a consortium with each of the airport operators and international
carriers servicing that federal inspection service area. The commenter noted
that without federal funding possible modifications or expansion of a federal
inspection service area is limited and costly to the airport.
The Department notes that many of these suggestions are
already being implemented as part of the INS's continuing improvement of the
inspection service. These issues do not address the provisions of the rule, but
the manner in which the INS relates to the air carriers and airport
administrations.
5. Economic Impact of the Rule
Several commenters suggested that the proposed rule on
registration and monitoring of certain nonimmigrants could have the potential
significantly to deter legitimate international travel to the United States.
Accordingly, they suggested that registration of nonimmigrants must be targeted
in a manner that enhances United States national security while not eroding
economic security. The Department has attempted to balance these interests in
adopting the proposed and final rules. The national security benefits from this
rule outweigh the economic costs.
C. Specific Issues
1. Condition of Admission
One commenter argued that the proposal to amend 8 CFR
214.1(f) to make compliance with the special registration requirements a
condition of maintenance of status is flawed because it is a ministerial
requirement, not intrinsic to a nonimmigrant's maintenance of status. The
commenter suggests that Mashi v. INS, 585 F.2d 1309 (5th Cir. 1978), limits the
use of conditions of admission. However, Mashi v. INS holds no more than that
the immigration judge and the Board of Immigration Appeals used the wrong
regulatory provision in resolving that alien's case. The remainder of the
opinion does not discuss the proposition cited by the commenter.
This commenter also argued that 8 CFR part 214 could
not be used to establish conditions because, the commenter argued, one court had
found that the Attorney General exceeded his authority when he promulgated 8 CFR
214.1(f), which imposes as a condition of a nonimmigrant's admission and
continued stay in the United States the full and truthful disclosure of all
information requested by the INS, regardless of whether the information is
material, Romero v. INS, 39 F.3d 977, 979 (9th Cir. 1994). However, that case
related to whether the Service could properly impose a condition to provide full
and truthful disclosure of information that was not material to the respondent's
immigration status. Id. at 980. Here the information that aliens are required to
provide is material to their immigration status. Moreover, this rule is
promulgated under the Attorney General's authority not only to establish
conditions of admission under section 214 of the Act (8 U.S.C. 1184), but also
to promulgate regulations for the registration, reporting of changes of address,
and special registration of non-immigrants under sections 263 and 265 of the Act
(8 U.S.C. 1303, 1305). This confluence of authority is much broader than the
authority interpreted in Romero and depends not merely upon an interpretation of
the Act, but the specific delegations of authority in the cited provisions of
the Act.
2. Identification of Aliens
One commenter argued that it is impossible for many
nonimmigrant aliens subject to special registration to acquire a second form of
identification from their country of origin. The commenter suggests that some
countries do not have second forms of identification. The Department disagrees.
Many countries issue more than one form of identification, such as a national
identification card and a driver's license. A second form of photographic
identification is not specifically required by the regulation, but the Service
is authorized to request confirmatory information.
3. Pre-existing Criteria
One commenter argued that, while the proposed 8 CFR
264.1(f)(2)(iii) states that nonimmigrant aliens subject to special registration
will be subject to special registration if they meet ``pre-existing criteria,''
no criteria are provided. The commenter questions what these criteria would be,
and how specific they would be.
The criteria by which an alien may be required to make
a special registration cannot be made public without defeating the national
security and law enforcement effectiveness of the criteria.
[[Page 52589]]
As with the criteria the United States Customs Service and the Drug
Enforcement Administration use in determining which individuals entering the
United States will be subject to greater scrutiny for trafficking in controlled
substances, publicly announced criteria for requiring special registration could
be evaded by those who are subject to the requirements. Even if some details of
a specific profile were to become publicly available, it is worth noting that
the constantly changing patterns of criminal activity require constant
adjustment of the criteria through improved intelligence and more refined
analysis, cf. United States v. Berry, 670 F.2d 583, 598-599 & n.17 (5th Cir.
1982), and cases cited therein, and any public profile is, at best, of
evanescent value.
The international response to the September 11th
attacks has been defined by multilateral cooperation. The success of this
response has depended in large part on improved sharing among governments of
information relating to terrorists, their associates, and their activities.
Continued vigilance requires procedures to institutionalize such coordination of
information. Accordingly, the Attorney General has directed the FBI to establish
procedures to obtain, on a regular basis, the fingerprints, other identifying
information, and available biographical data of all known or suspected foreign
terrorists who have been identified and processed by foreign law enforcement
agencies. The FBI also coordinates with the Department of Defense to obtain, to
the extent permitted by law, the fingerprints, other identifying information,
and available biographical data of known or suspected foreign terrorists who
have been processed by the United States armed forces. Such information is, and
will continue to be, regularly evaluated in order to update the criteria that
are used in identifying nonimmigrant aliens who are appropriately subject to
special registration.
In the same vein, sections 203 and 905 of the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Public Law 107-56, 115
Stat. 272, 278, 388 (2001), authorized and required sharing of foreign
intelligence and counterintelligence information in new ways, subject to
limitations otherwise provided by law and exceptions delineated in regulations
to be issued by the Department.
4. Reason to Believe
A commenter noted that proposed 8 CFR 264.1(f)(2) also
states that a nonimmigrant will be subject to the special registration
requirements if there is ``reason to believe'' that the nonimmigrant is a
national or citizen of a specific country or meets the pre-existing criteria,
and questioned what criteria would be used. In this context, the commenter
questioned whether language or dress would be considered appropriate indicia.
Another commenter argued that the proposed rule was a delegation of the Attorney
General's discretion to the inspecting officer at the ports-of-entry, allowing
discretion for the inspecting officers to choose aliens who they believe to be a
risk. Although the commenter noted that the Act authorizes any employee of the
Department to perform or exercise any of the powers, privileges, or duties
conferred or imposed by this chapter, the commenter was concerned over the
possibility of abuse.
Under 8 CFR 264.1(f)(2)(i), (ii), as added by this
final rule, the authority to designate the classes of nonimmigrant aliens who
will be subject to special registration requirements is retained by the Attorney
General, in consultation with the Secretary of State. The final rule notes that
such designation will apply to ``nationals'' or ``citizens'' of a specified
country. The Act, moreover, permits the Attorney General to designate ``class[es]''
of aliens for special registration, not merely countries. INA section 263(a)(6)
(8 U.S.C. 1303(a)(6)). In light of the fact that individual aliens involved in
terrorist activity or other activity inimical to the interests of the United
States may commit document fraud to gain admission to the United States for
nefarious purposes, the rule allows immigration inspectors to conclude that an
alien will be subject to special registration requirements if they have ``reason
to believe'' that the individual alien actually does fall within the classes of
nonimmigrant aliens subject to special registration.
This ``reason to believe'' phrase is used throughout
the Act to refer to situations where there is a basis for believing in fact that
a provision of the Act applies. See, e.g., INA section 204(f)(2)(A) (8 U.S.C.
1154(f)(2)(A)) (procedure for granting immigrant status; certain aliens whom the
Attorney General has reason to believe were born in certain countries and were
fathered by a United States citizen); INA section 212(a)(2)(C) (8 U.S.C.
1182(a)(2)(C)) (alien inadmissible if consular or immigration officer has reason
to believe alien is a controlled substance trafficker); INA section 214(n)(1) (8
U.S.C. 1184(n)(1)) (alien inadmissible if substantial reason to believe alien
committed act of severe form of human trafficking); INA section 221(g)(3) (8
U.S.C. 1201(g)(3)) (non-issuance of visa if consular officer has reason to
believe alien not eligible) of the Act. In the final rule, the ``reason to
believe'' standard will not have such drastic consequences, but instead will
merely require certain nonimmigrant aliens to provide more detailed information
at regular intervals. Where information indicates that an alien is, in fact, a
national or citizen of a designated country, or that other provisions of the
rule apply, the inspecting officer must be authorized to make the special
registration requirements applicable to that alien.
5. Notice of New Country Listings
One commenter was concerned that a specific country
that is not currently listed might be listed in the future. The commenter
believed that this would be antithetical to the relationship between the United
States and that country and its citizens.
The listing of countries from which nonimmigrant aliens
will be subject to special registration is determined by the Attorney General in
consultation with the Secretary of State, thereby ensuring that foreign policy
implications will be considered when evaluating the possible designation of any
specific country. However, because the final rule only provides the framework
for the special registration process, and does not make any specific
designations, this comment is outside the scope of this final rule.
6. Reporting at 30-day and Annual Intervals
One commenter suggested that interval reporting is
problematic. As the States are making it increasingly difficult, if not
impossible, for some nonimmigrants to obtain driver's licenses or identification
cards, some aliens may find that an alternative form of identification is not
available. The commenter suggested proof of tenancy is often impossible because
``short-term visitors (such as students touring for the summer) often travel
around the United States, with no set address as they stay in hostels or camp'';
in other cases aliens may not have established proof of tenancy in their names
if they are staying with relatives or friends. Another commenter suggested that
nonimmigrants sponsored by a charity, such as for a speaking tour, be permitted
to use the charity's address.
[[Page 52590]]
A commenter also argued that interval reregistration will be burdensome, both
in traveling to a specified office and in the process of scheduling and
appearing at an overburdened office. This commenter also discussed, and
discounted, the notion that nonimmigrants might be required to report to state
or local police offices. The rule continues to provide that an individual must
reregister at a 30-day interval and annually. Neither of these requirements
appears to the Department to be burdensome. However, if an individual
nonimmigrant alien subject to special registration can show a specific burden,
that nonimmigrant alien subject to special registration may seek relief from the
appropriate district director.
7. Relief
Several commenters stated that the provision allowing a
district director to grant relief from the provisions of the rule was
insufficient. They were concerned that travel to a distant office was still
required, that some offices would not grant dispensation, and that officials
would not be available by telephone. One commenter specifically noted that the
provision does not include any provision regarding failure to register due to a
serious illness or other emergency circumstance that would prevent the
nonimmigrant from complying.
The Department does not believe that these situations
require any amendment to the rule. The rule is specific that reregistration must
be in person and, therefore, telephone communication is irrelevant. Moreover,
the reregistration dates are intentionally established as windows before and
after a specific date to accommodate such intervening events as illness. The
second registration is required to be made between 30 and 40 days after
admission, while annual reregistration may be made within 10 days--before or
after--the anniversary of admission. The totality of this inconvenience must be
kept in perspective with the scope of this rule: the rule applies only to the
small number of nonimmigrant aliens subject to special registration, and the
registrations are not so frequent or so rigid as to be burdensome in comparison
with the national security or law enforcement interests of the United States.
8. Final Registration
The proposed rule provided that a nonimmigrant subject
to special registration also report when leaving the United States. This final
registration would occur through inspection at a port of entry. One commenter
suggested that this final registration, like the entry process, would take
substantial time to develop and implement with airports, even for the small
number of aliens covered by this rule. The commenter noted that, for some period
of time, nonimmigrant aliens subject to special registration would be permitted
to depart the United States only through the limited number of ports with
sufficient facilities. The commenter argued against such a provision because it
would create a substantial inconvenience and expense to the alien, and, in some
instances, a bar to departure.
The Department recognizes that a small number of
persons presently in the United States who will become subject to the rule
possess a return ticket, and some of these tickets are non-refundable and non-
changeable without penalty. However, the Department is making every effort to
ensure that there will be sufficient facilities to accommodate final
registration at all ports at the time the rule becomes effective. Because
special registration will be a paperless system, the Department will be
establishing additional computer links to ensure that the system is available
nationwide. Nevertheless, for a short period of time, because aliens will be
permitted to depart from any port when the rule becomes effective, the
Department expects that initially some inspectors will need to record
information provided by nonimmigrant aliens subject to special registration on
paper records that will not be entered into the system until shortly thereafter.
If the Service determines that a port is inappropriate for the departure of
nonimmigrant aliens subject to special registration, the Service will give
appropriate notice by publication in the Federal Register. The Department agrees
that individual aliens should not be inconvenienced during the ongoing
development of the system. To provide sufficient time to procure equipment and
provide training to all inspection personnel, paragraph (f)(8) of the final rule
will not become applicable until October 1, 2002. Moreover, the final
registration requirement of 8 CFR 264.1(f)(8) will apply only to those
nonimmigrant aliens who have been registered under paragraph (f)(3), or who are
or have been required to register pursuant to paragraph (f)(4).
Another commenter conceded that subjecting departing
aliens to special registration requirements is not new, but is not often done.
The commenter noted that departure will now be confirmed by actual presentation
by the nonimmigrant alien subject to special registration, and that the alien's
departure can then be confirmed by reference to other records, such as the
electronic manifests provided by air carriers. The commenter suggested that INS
and the air carriers use APIS to collect an alien's departure information. The
commenter suggested a system by which an alien would proceed to the flight gate
and the air carrier would electronically collect his departure information and
then transmit it to the INS. The commenter suggested that, if prior to an
alien's scheduled departure, the INS determined it must conduct a face-to-face
interview, INS could arrange for the alien to meet a departure control officer
in the federal inspection service (FIS) area before flight time. In all other
cases, the air carrier's electronic transmission of the alien's departure would
serve as confirmation to the INS.
The Department appreciates the thought given to this
approach, but must decline to adopt it. Final registration, like inspection,
requires a face-to-face confirmation of identity until such time as electronic
verification of biometrics can ensure that the nonimmigrant alien subject to
special registration actually is the individual departing the United States.
9. Future Inadmissibility
Another commenter stated that the proposed rule would
effectively create a new ground of inadmissibility by characterizing failure to
comply with the final registration provisions as ``unlawful activity.'' The
commenter noted that the individual would thereafter be presumed to be
inadmissible to the United States under section 212(a)(3)(A)(ii) of the Act as
an alien ``who a consular officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter the United States to engage solely,
principally, or incidentally in * * * any other unlawful activity.'' 8 U.S.C.
1182(a)(3)(A)(ii).
The commenter's analysis is faulty in that only
Congress can establish grounds for removal and inadmissibility to the United
States. Congress has made clear, however, that the Attorney General may find an
alien inadmissible if he has ``a reasonable ground to believe [the alien] seeks
to enter the United States to engage solely, principally, or incidentally in * *
* any other unlawful activity * * *.'' INA section 212(a)(3)(A)(ii) (8 U.S.C.
1182(a)(3)(A)(ii)) (emphasis added). An alien is subject to special registration
requirements because that alien meets pre-established criteria that the
[[Page 52591]]
Department found to be associated with national security risks. When such an
alien violates the terms of his or her special registration by failing to
register upon leaving the United States and then seeks to reenter the United
States, the alien can reasonably be seen as attempting to reenter for the
purpose of engaging in ``unlawful activity'' under section 212(a)(3)(A)(ii) of
the Act. If an alien complies with the regulations, he or she will not, in the
future, be presumed inadmissible under this provision.
The Department recognizes that there may be reasons why
a departing alien may not be able personally to report for final registration
when leaving the United States. The Department acknowledges that some failures
to register upon leaving are not likely to be the result of a preconceived
intent to engage in unlawful activity at the time of an alien's future entry
into the United States. However, if the nonimmigrant alien subject to special
registration violates the specific regulations relating to final registration at
the time of exiting the United States, that nonimmigrant alien subject to
special registration will be presumed to be inadmissible. The presumption may be
overcome, but, despite the concerns of at least one commenter, it is not
necessary for the Attorney General to provide a complete and exhaustive
catalogue of the manner in which he will exercise his discretion.
D. Issues Not Raised in the Rule
Several commenters opposed the entry of violation
information into the National Crime Information Center. The Attorney General's
announcement of his direction to the Federal Bureau of Investigation and the INS
to include this information is not covered by, and need not be covered by, this
rule. Accordingly, these comments are not considered in developing the final
rule.
Regulatory Procedures
Regulatory Flexibility Act
The Department of Justice, in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by
approving it certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. This rule will affect
individual nonimmigrant aliens who are not considered small entities as that
term is defined in 5 U.S.C. 601(6).
Executive Order 12866
This regulation has been drafted and reviewed in
accordance with Executive Order 12866, Regulatory Planning and Review, section
1(b), Principles of Regulation. The Department of Justice has determined that
this rule is a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review, and accordingly this rule has been
reviewed by the Office of Management and Budget.
Executive Order 13132
This regulation 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
13132, it is determined that this rule does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Executive Order 12988
This regulation meets the applicable standards set
forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform.
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
251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. 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.
Paperwork Reduction Act
Information collection associated with this
regulation has been approved by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The
OMB control number for this collection is 1115-0254.
List of Subjects 8 CFR Part 214
Aliens, Immigration, Registration, Reporting and
recordkeeping requirements.
8 CFR Part 264
Aliens, Immigration, Registration, Reporting and
recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 is revised to
read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184,
1186a, 1187, 1221, 1281, 1282, 1301-1305; sec. 643, Pub. L. 104-208, 110 Stat.
3009-708; section 141 of the Compacts of Free Association with the Federated
States of Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR
part 2.
2. Amend Sec. 214.1 by revising paragraph (f) to
read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of status.
* * * * *
(f) Registration and false information. A
nonimmigrant's admission and continued stay in the United States is conditioned
on compliance with any registration, photographing, and fingerprinting
requirements under Sec. 264.1(f) of this chapter that relate to the maintenance
of nonimmigrant status and also on the full and truthful disclosure of all
information requested by the Service. Willful failure by a nonimmigrant to
register or to provide full and truthful information requested by the Service
(regardless of whether or not the information requested was material)
constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i)
of the Act (8 U.S.C. 1227(a)(1)(C)(i)).
* * * * *
PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES
3. The authority citation for part 264 is revised to
read as follows:
Authority: 8 U.S.C. 1103, 1182, 1184, 1201,
1301-1305.
4. Amend Sec. 264.1 by revising paragraph (f) to
read as follows:
Sec. 264.1 Registration and fingerprinting.
* * * * *
[[Page 52592]]
(f) Registration, fingerprinting, and photographing
of certain nonimmigrants. (1) Notwithstanding the provisions in paragraph (e) of
this section, nonimmigrant aliens identified in paragraph (f)(2) of this section
are subject to special registration, fingerprinting, and photographing
requirements upon arrival in the United States. This requirement shall not apply
to those nonimmigrant aliens applying for admission to the United States under
sections 101(a)(15)(A) (8 U.S.C. 1101(a)(15)(A)) or 101(a)(15)(G) (8 U.S.C.
1101(a)(15)(G)) of the Act. In addition, this requirement shall not apply to
those classes of nonimmigrant aliens to whom the Attorney General and the
Secretary of State jointly determine it shall not apply, or to any individual
nonimmigrant alien to whom the Attorney General or the Secretary of State
determines it shall not apply. Completion of special registration pursuant to
this paragraph (f) is a condition of admission under section 214 of the Act (8
U.S.C. 1184) if the inspecting officer determines that the alien is subject to
registration under this paragraph (f) (hereinafter ``nonimmigrant alien subject
to special registration'').
(2) Nonimmigrant aliens in the following categories are
subject to the requirements of paragraph (f)(3) of this section: (i)
Nonimmigrant aliens who are nationals or citizens of a country designated by the
Attorney General, in consultation with the Secretary of State, by a notice in
the Federal Register;
(ii) Nonimmigrant aliens who is a consular officer or
an inspecting officer has reason to believe are nationals or citizens of a
country designated by the Attorney General, in consultation with the Secretary
of State, by a notice in the Federal Register; or
(iii) Nonimmigrant aliens who meet pre-existing
criteria, or who is a consular officer or the inspecting officer has reason to
believe meet pre-existing criteria, determined by the Attorney General or the
Secretary of State to indicate that such aliens' presence in the United States
warrants monitoring in the national security interests, as defined in section
219 of the Act (8 U.S.C. 1189), or law enforcement interests of the United
States.
(3)(i) Any nonimmigrant alien who is included in
paragraph (f)(2) of this section, and who applies for admission to the United
States, shall be specially registered by providing information required by the
Service, shall be fingerprinted, and shall be photographed, by the Service, at
the port-of-entry at such time the nonimmigrant alien applies for admission to
the United States. The Service shall advise the nonimmigrant alien subject to
special registration that, if the alien remains in the United States for 30 days
or more, the nonimmigrant alien subject to special registration must appear at a
Service office in person to complete registration by providing additional
documentation confirming compliance with the requirements of his or her visa.
The nonimmigrant alien subject to special registration must appear at such
office between 30 and 40 days after the date on which the nonimmigrant alien
subject to special registration was admitted into the United States.
(ii) At the time of verification of information for
registration pursuant to paragraph (f)(3)(i) of this section, the nonimmigrant
alien subject to special registration shall provide the Service with proof of
compliance with the conditions of his or her nonimmigrant visa status and
admission, including, but not limited to, proof of residence, employment, or
registration and matriculation at an approved school or educational institution.
The nonimmigrant alien subject to special registration shall provide any
additional information required by the Service.
(4) The Attorney General, by publication of a notice in the
Federal Register, also may impose such special registration, fingerprinting, and
photographing requirements upon nonimmigrant aliens who are nationals, citizens,
or residents of specified countries or territories (or a designated subset of
such nationals, citizens, or residents) who have already been admitted to the
United States or who are otherwise in the United States. A notice under this
paragraph (f)(4) shall explain the procedures for appearing in person and
providing the information required by the Service, providing fingerprints,
photographs, or submitting supplemental information or documentation.
(5) A nonimmigrant alien subject to special
registration shall annually reregister in person with the Service at the
district office for the district in which the nonimmigrant alien subject to
special registration's residence is located. Annual reregistration shall be in
the same manner as provided in paragraph (f)(3) of this section, and shall occur
within 10 days of the month and day of the anniversary of his or her original
admission to the United States. Annual reregistration of a nonimmigrant alien
subject to special registration under paragraph (f)(4) of this section shall be
in the manner prescribed in the applicable notice, subject to any modifications
or changes included in any applicable intervening notice.
(6) In addition to the 30-day and annual
reregistrations pursuant to paragraphs (f)(3) and (f)(5) of this section, any
nonimmigrant alien subject to special registration who remains in the United
States for 30 days or more shall notify the Service by mail or other such means
as determined by the Attorney General, using a notification form designated by
the Service, of any change of address of residence, change of employment, or
change of educational institution, within 10 days of such change.
(7) A nonimmigrant alien subject to special
registration may apply to the district director, or such other official as the
Attorney General may designate, at the Service's district office in which the
nonimmigrant alien subject to special registration's residence address is
located and registered, for relief from the requirements of this paragraph (f).
The decision of the district director or such other official is final and not
appealable.
(8) When a nonimmigrant alien subject to special
registration departs from the United States, he or she shall report to an
inspecting officer of the Service at any port of entry, unless the Service has,
by publication in the Federal Register, specified that nonimmigrant aliens
subject to special registration may not depart from specific ports. Any
nonimmigrant alien subject to special registration who fails, without good
cause, to be examined by an inspecting officer at the time of his or her
departure, and to have his or her departure confirmed and recorded by the
inspecting officer, shall thereafter be presumed to be inadmissible under, but
not limited to, section 212(a)(3)(A)(ii) of the Act (8 U.S.C. 1182(a)(3)(A)(ii)),
as an alien whom the Attorney General has reasonable grounds to believe, based
on the alien's past failure to conform with the requirements for special
registration, seeks to enter the United States to engage in unlawful activity.
An alien may overcome this presumption by making a showing that he or she
satisfies conditions set by the Attorney General and the Secretary of State.
This paragraph (f)(8) applies only to those nonimmigrant aliens who have been
registered under paragraph (f)(3) of this section, or who are or have been
required to register pursuant to paragraph (f)(4) of this section. This
paragraph (f)(8) will become applicable on October 1, 2002.
(9) Registration under this paragraph (f) is not deemed
to be complete unless all of the information required by the Service, and all
requested documents,
[[Page 52593]]
are provided in a timely manner. Each annual reregistration and each change
of material fact is a registration that is required under sections 262 and 263
of the Act (8 U.S.C. 1302, 1303). Each change of address required under this
paragraph (f) is a change of address required under section 265 of the Act (8
U.S.C. 1305).
* * * * *
Dated: August 9, 2002.
John Ashcroft, Attorney General.
[FR Doc. 02-20642 Filed 8-9-02;
2:31 pm]
BILLING CODE 4410-10-P
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