[Federal Register: November 23, 1998 (Volume 63, Number 225)]
[Rules and Regulations]               
[Page 64626-64628]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



22 CFR Part 40

[Public Notice 2910]

Visas: Grounds of Ineligibility

AGENCY: Bureau of Consular Affairs, Department of State.

ACTION: Final rule.


SUMMARY: This rule finalizes the interim rule published December 29 
1997 (62 FR 67564) and implements sections of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA added 
new grounds of inadmissibility for: certain aliens who have not been 
inoculated against infectious diseases designated by statute or by the 
Advisory Committee for Immunization Practices (ACIP); aliens who have 
been subject to certain civil penalties; alien student visa abusers; 
aliens present in the United States without admission or parole; aliens 
who fail to attend removal proceedings; unlawful alien voters; and 
former citizens who renounced United States citizenship in order to 
avoid paying taxes. Some of these sections also provide for waivers of 
grounds of inadmissibility. The rule also incorporates in the 
Department's regulations a delegation of authority from the Immigration 
and Naturalization Service pertaining to waivers of inadmissibility 
under the Immigration and Nationality Act. Finally, the rule makes a 
technical correction. Generally, these rules are necessary to ensure 
that consular officers properly enforce the above-mentioned grounds of 
ineligibility when adjudicating visa applications.

EFFECTIVE DATES: The effective dates are as follows: for Secs. 40.11, 
40.52, 40.66, 40.104, and 40.105 the effective date is September 30, 
1996; for Sec. 40.67 the effective date is November 30, 1996; for 
Secs. 40.61, 40.62, 40.91, 40.92, 40.93, the effective date is April 1, 
1997; and for Sec. 40.22, the effective date is September 30, 1997.

FOR FURTHER INFORMATION CONTACT: H. Edward Odom, Chief, Legislation and 
Regulations Division, Visa Office, Room L603-C, SA-1, Washington, DC 
20520-0106 (odomhe@sa1wpoa.us-state.gov).

SUPPLEMENTARY INFORMATION: The Department published an interim rule, 
Public Notice 2666 at 62 FR 67564, December 29, 1997, with a request 
for comments, for numerous sections of Title 22, Part 40 of the Code of 
the Federal Regulations. The rules were primarily proposed to implement 
provisions of the Illegal Immigration

[[Page 64627]]

Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 
(IIRIRA), though they also make a technical correction. The rules were 
discussed in detail in Public Notice 2666, as were the Department's 
reasons for the regulations. The rules incorporate changes to those 
sections of Part 40 shown in the table below. A minor wording change 
now will be made to Sec. 40.91(a).

   22 CFR part affected            Heading           IIRIRA section No.
Sec.  40.11...............  Medical Grounds of     Sec.  341
Sec.  40.22...............  Suspended Sentences..  Sec.  322
Sec.  40.52...............  Unqualified            N/A (typographic
                             Physicians.            correction)
Sec.  40.61...............  Aliens Present         Sec.  301
                             Without Admission or
Sec.  40.62...............  Failure to Attend      Sec.  301
                             Removal Proceedings.
Sec.  40.66...............  Aliens Subject of      Sec.  345
                             Civil Penalty.
Sec.  40.67...............  Student Visa Abusers.  Sec.  346
Sec.  40.91...............  Certain Aliens         Sec.  301
                             Previously Removed.
Sec.  40.92...............  Aliens Unlawfully      Sec.  301
Sec.  40.93...............  Aliens Unlawfully      Sec.  301
                             Present After
                             Previous Immigration
Sec.  40.104..............  Unlawful voters......  Sec.  347
Sec.  40.105..............  Former Citizens Who    Sec.  352
                             Citizenship to Avoid

Analysis of Comments

    The interim rules were published for comment at 62 FR 67564. The 
commenting period was closed on February 27, 1998. The Department 
received three timely comments in response to the interim rule. As the 
interim rule contained numerous regulations, each commentator made a 
variety of comments. Many of the comments received proposed 
clarifications of terminology used in the published rules. Others asked 
for specific changes in the regulations to meet perceived inadequacies.
    The Department received two comments regarding the waiver clause of 
22 CFR 40.92(c). The commentators were concerned that the waiver 
standards, as provided for in INA section 212(a)(9)(B)(v) lack 
specificity and are therefore inadequate to assure proper visa 
application adjudication. The Attorney General is responsible for the 
approval of such waivers, and the INS has issued guidance as to 
situations where visa applicants may qualify for a waiver (see 8 CFR 
207.3(b)). The Department, and Consular Officers more specifically, are 
not participants in the Attorney General's decision to consent to an 
alien's application for a waiver. Clarification of the waiver standards 
in the Department's regulations, therefore, while ostensibly desirable, 
would not be appropriate. The Department must defer to the Attorney 
General for such standards.
    Similarly, two commentators remarked that the term `unlawfully 
present' as used in 22 CFR 40.92 was inadequately defined. As above, 
the Department must defer to the Attorney General, and more 
specifically to the INS, to promulgate the regulations surrounding that 
term. While awaiting such regulations, however, the Department, with 
INS approval, issued interim guidance on April 4, 1998, to aid posts in 
making determinations of unlawful presence. At such time as regulations 
are put forward by INS, the Department will provide further guidance as 
    Regarding 22 CFR 40.104, Unlawful Voters, one comment suggested 
that a ``good faith error exception'' for an alien who votes illegally 
should be added. This comment stemmed from the sometimes confusing 
circumstances surrounding who is eligible to vote in certain elections. 
For example, noncitizens may be eligible to vote in some local school 
board elections. As the laws of the several states address this problem 
differently, however, it would be impractical to attempt to cover all 
situations in the Department's regulations. Instead, the Department's 
guidance on the subject will reflect that, to the extent that the 
constitutional provision, statute, regulation, or ordinance in question 
provides that violations occur only as the result of knowing acts, an 
alien will not be held ineligible if the alien establishes to the 
satisfaction of the Consular Officer that the alien did not knowingly 
violate the provision, statute, regulation or ordinance.
    With respect to 22 CFR 40.62, Failure to Attend Removal 
Proceedings, one commentator expressed a concern with the lack of 
specificity surrounding the term ``reasonable cause.'' Owing to the 
gravity of the sanctions for a failure to attend removal proceedings, 
the commentator argued, a more illuminating definition of ``reasonable 
cause'' should be put forward. While the commentator's concern is well 
founded, the term ``reasonable cause'' is not without interpretation. 
The Board of Immigration Appeals (BIA) has decided many cases giving 
guidance to the meaning of this term (see, e.g., Matter of Rivera, 19 
I&N Dec. 688, Matter of Patel, 19 I&N Dec. 260N (aff'd Patel v. I.N.S., 
803 F.2d 804 (5th Cir. 1986)); Matter of Marallag, 13 I&N Dec. 775; 
Matter of Haim 19 I&N Dec. 641N; Matter of Ruiz 20 I&N Dec. 91). With 
such a foundation, in those instances where a Consular Officer will 
have to make a ``reasonable cause'' determination, his/her decision 
will be informed to the extent possible by BIA decisions. Further, the 
Consular Officer will rely on interpretive material provided to him or 
her both in the Foreign Affairs Manual and other sources. With this 
guidance, therefore, the Consular Officer will be well informed and 
will be in the best position to exercise discretion to make such a 
determination. Any further explication of the term in the CFR may 
interfere with and confuse those efforts.
    Several comments focused on the interim regulations' effect on the 
Violence Against Women's Act of 1994 (VAWA). Particularly, the 
commentators noted that the regulation and the preamble thereto were 
unclear as to the interpretation of IIRIRA 301(c)(2), which exempts any 
battered spouse or child who otherwise qualifies as a self-petitioner 
and who first arrived in the United States before April 1, 1997 from 
having to demonstrate a ``substantial connection'' between the 
battering or extreme cruelty and the applicant's unlawful entry into 
the United States. According to IIRIRA, these applicants need only show 
that they qualify under the VAWA provisions, which is accomplished if 
the applicant has an approved petition from INS. This is an important 
distinction that will be brought to consular officers' attention 
through the interpretive materials of the

[[Page 64628]]

Foreign Affairs Manual associated with aliens unlawfully present and 
also through future changes to the regulations associated with the 
immediate relative visa categories.
    Finally, one commentator expressed a concern that a battered spouse 
who has to leave the country may face protracted delays in his or her 
visa processing if the Consular Officer ``readjudicates'' the INS 
approved petition that is part of the application. While the concern of 
the commentator is appreciated, such petitions for battered spouses 
must be treated in accord with other petitions used by applicants. To 
that end, 22 CFR 42.41 states that a Consular Officer is authorized to 
grant the status requested upon receipt of an approved petition, but 
that the applicant still has ``the burden of establishing to the 
satisfaction of the Consular Officer that the [applicant] is eligible 
in all respects to receive a visa.'' The Consular Officer will not 
readjudicate the petition, therefore, but still must consider and 
report to INS any information which leads the Consular Officer to 
believe that the petition was approved in error.

Final Rule

    This rule is not expected to have a significant impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. This rule imposes no reporting or 
recordkeeping action from the public requiring the approval of the 
Office and Management and Budget under the Paperwork Reduction Act 
requirements. This rule has been reviewed as required by E.O. 12778 and 
certified to be in compliance therewith. This rule is exempted from 
E.O. 12866 but has been coordinated with INS and reviewed to ensure 
consistency therewith.

List of Subjects in 22 CFR Part 40

    Aliens, Immigrants, Immigration, Nonimmigrants, Passports and 
    In view of the foregoing, the interim rule amending 22 CFR 40 which 
was published at 62 FR 67564 on December 29, 1997, is adopted as a 
final rule with the following change:


    1. The authority citation for Part 40 continues to read as follows:

    Authority: 8 U.S.C. 1104, Pub. L. 104-208, 110 Stat. 3009, 22 
U.S.C. 26512.

    2. Section 4091(a) is revised as follows:

Sec. 40.91  Certain aliens previously removed.

    (a) 5-year bar. An alien who has been found inadmissible, whether 
as a result of a summary determination of inadmissibility at the port 
of entry under INA 235(b)(1) or of a finding of inadmissibility 
resulting from proceedings under INA 240 initiated upon the alien's 
arrival in the United States, shall be ineligible for a visa under INA 
212(a)(9)(A)(i) for 5 years following such alien's first removal from 
the United States.
* * * * *
    Dated: October 5, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 98-30858 Filed 11-20-98; 8:45 am]



© Copyright Law Offices of Jonathan Liang 2000. All rights reserved.