Rule2024-18659
Visas: Visa Ineligibility
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 22, 2024
Effective
August 22, 2024
Issuing agencies
State Department
Abstract
The Department of State ("Department") is amending a regulation relating to the effect of certain pardons on criminal- related grounds of visa ineligibility.
Full Text
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<title>Federal Register, Volume 89 Issue 163 (Thursday, August 22, 2024)</title>
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[Federal Register Volume 89, Number 163 (Thursday, August 22, 2024)]
[Rules and Regulations]
[Pages 67857-67859]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18659]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 12464]
RIN 1400-AF77
Visas: Visa Ineligibility
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State (``Department'') is amending a
regulation relating to the effect of certain pardons on criminal-
related grounds of visa ineligibility.
DATES: This final rule is effective on August 22, 2024.
FOR FURTHER INFORMATION CONTACT: Jami Thompson, Office of Visa
Services, Bureau of Consular Affairs, Department of State; telephone
(202) 485-7586, <a href="/cdn-cgi/l/email-protection#5006392331023537231023243124357e373f26"><span class="__cf_email__" data-cfemail="d781bea4b685b2b0a497a4a3b6a3b2f9b0b8a1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of State (``Department'') is amending its
regulations at 22 CFR 40.21(a)(5), and 22 CFR 40.22(c) regarding the
effect of a pardon on a visa applicant's ineligibility under section
212(a)(2)(A) of the Immigration and Nationality Act (INA) (8 U.S.C.
1182(a)(2)(A)) and INA section 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)),
respectively. The current regulation at 22 CFR 40.21(a)(5) provides
that an alien is not ineligible for a visa under INA section
212(a)(2)(A) if a full and unconditional pardon has been granted by the
President of the United States, by a governor of a state of the United
States, or by certain other specified officials. Similarly, the current
regulation at 22 CFR 40.22(c) provides that an alien is not ineligible
for a visa under INA section 212(a)(2)(B) based on having been
convicted of two or more offenses, if a full and unconditional pardon
has been granted by the President of the United States, by a governor
of a state of the United States, or by certain other specified
officials. The Seventh Circuit Court of Appeals recently examined the
regulation at 22 CFR 40.21(a)(5), finding that it conflicts with INA's
provisions in section 212(a)(2)(A)(i) governing inadmissibility based
on conviction or admission of certain crimes, which do not include an
exception or waiver to that inadmissibility for applicants who receive
a pardon.
. . . the [INA] is clear that a pardon does not make an otherwise
inadmissible noncitizen admissible, even if a pardon can save a
resident noncitizen from being removed . . . and where agency
regulations conflict with statutory text, statutory text wins out
every time. We simply cannot square [22 CFR 40.21(a)(5)] with the
text and structure of the INA as it was amended in 1990.
Wojciechowicz v. Garland, 77 F.4th 511, 514, 518 (7th Cir. 2023)
(internal citations and parentheticals omitted). The Department agrees
with the Seventh Circuit's opinion in Wojciechowicz as it applies to
gubernatorial pardons and finds that the court's analysis regarding the
lack of underlying authority in the INA giving effect to such pardons
also extends to the Department's regulation at 22 CFR 40.22(c)
regarding ineligibility for multiple criminal convictions.
B. Legal Background
The Department first promulgated these rules in 1959 at 22 CFR
41.91(a)(9)-(10).\1\ At the time the regulations were first
promulgated, the Immigration and Nationality Act of 1952, as amended
(``1952 Act''), provided that noncitizens were excludable \2\ from the
United States and ineligible for visas if they had been convicted of a
crime involving moral turpitude or two or more criminal offenses.
Unlike the 1952 Act's provisions on grounds of deportation, which did
provide that the criminal-related ground of deportation ``shall not
apply'' to individuals who had received a full and unconditional pardon
by the President of the United States or by the Governor of any of the
several States, the 1952 Act did not include a provision on the effect
of a pardon on excludability. Section 222(a) of the 1952 Act did,
however, speak to the possible relevance of a previous pardon or
amnesty to an individual's eligibility for an immigrant visa, requiring
that all immigrant visa applicants provide such information among a
range of other specified fields.
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\1\ See 24 FR 6678 (Aug. 18, 1959).
\2\ The 1952 Act referred to ``classes of aliens [that] shall be
ineligible to receive visas and [that] shall be excluded from
admission into the United States'' (emphasis added). The Illegal
Immigration Reform and Immigration Responsibility Act of 1996
(IIRIRA), 110 Stat. 3009-546, introduced the language of
``inadmissible aliens'' as part of a broader reorganization of the
INA.
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While the 1952 Act did not expressly include a provision on the
effect of a pardon on excludability, the Board of Immigration Appeals
(BIA) held in 1954 that such pardons also remove excludability under
now-INA section 212(a)(2)(A)(i). Matter of H--, 6 I&N Dec. 90, 96 (BIA
1954) (``As long as there is a full and unconditional pardon granted by
the President or by a Governor of a State covering the crime which
forms the ground of deportability, whether in exclusion or expulsion,
the immunizing feature of the pardon clause applies . . .'') (emphasis
added).
Following promulgation of the Department's 1959 rule, amendments to
the Immigration and Nationality Act and multiple court decisions have
removed any ambiguity about whether there is a statutory basis to
except individuals from inadmissibility under INA section
212(a)(2)(A)(i) or INA section 212(a)(2)(B) based on a gubernatorial
pardon. Congress revised the grounds of deportation relating to
convictions of crimes involving moral turpitude and aggravated felonies
under section 602(a) of the Immigration Act of 1990 (``IMMACT 90'')
and, among the revisions, added a new clause to that ground expressly
authorizing waivers of that ground in cases of certain pardons,
including gubernatorial pardons. In the same Act, Congress similarly
revised the INA's ground of inadmissibility in INA section
212(a)(2)(A)(i) for conviction of certain crimes to include a separate
clause of exceptions to that ground and did not include any such
language excepting applicants from ineligibility if their relevant
conviction had been pardoned. Congress also subsequently amended INA
section 222(a) to no longer expressly require that all immigrant visa
applicants provide information on a previous pardon or amnesty.\3\
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\3\ Immigration and Nationality Technical Corrections Act of
1994, Public Law 103-416, Section 205(a).
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In more recent years, courts have also consistently reached the
opposite conclusion of Matter of H-- regarding the effect of a pardon
on a conviction that leads to criminal-related inadmissibility, like
the court's findings in Wojciechowicz. Each court that has considered
the effect of a gubernatorial pardon on admissibility has uniformly
found that Congress did not include an exception to inadmissibility
under INA section 212(a)(2)(A)(i) based on having received a pardon as
it had done in the corresponding section outlining the criminal grounds
for deportation. For example, in Balogun vs. U.S. Attorney General, a
case involving a gubernatorial pardon, the Eleventh Circuit held that
because the criminal-related inadmissibility ground ``does not have a
pardon provision like [8 U.S.C.]
[[Page 67858]]
section 1227 does,'' the logical conclusion was that Congress must not
have ``intended to extend the pardon waiver to inadmissible aliens.''
Balogun v. U.S. Atty. Gen., 425 F.3d 1356, 1362 (11th Cir. 2005). The
Ninth Circuit subsequently reached the same conclusion in another case
involving a gubernatorial pardon, with the court finding that the
``statutory language dealing with pardons applies only to aliens who
are charged based upon convictions under [8 U.S.C. 1227] . . . It does
not apply to aliens charged with inadmissibility under [8 U.S.C.
1182(a)].'' Aguilero-Montero v. Mukasey, 548 F.3d 1248, 1250 (9th Cir.
2008).
Consistent with these courts' uniform findings on the issue, the
BIA has also consistently reached the opposite conclusion of Matter of
H--, and specifically held that the statutory language on effects of
pardons applies only to the criminal-related grounds of deportation and
not inadmissibility.\4\ See, e.g., Matter of Suh, 23 I&N Dec. 626, 628
(BIA 2003); Matter of Dillingham, 21 I&N Dec. 1001 (BIA 1997).
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\4\ Wojciechowicz, as well as other judicial and administrative
decisions confronting the impact of a pardon on inadmissibility,
involved pardons not issued by the President of the United States.
This rule implements Wojciechowicz's interpretation of the INA vis-
[agrave]-vis a gubernatorial pardon, which the court found
conflicted with the Department's regulation at 22 CFR 40.21(a)(5).
The Department therefore need not address whatever separation of
powers concerns may or may not exist regarding the INA and the
President's Article II pardon authority. See Aristy-Rosa v. Att'y
Gen., 994 F.3d 112, 117 (9th Cir. 2021) (``These separation of
powers concerns are absent here, however, because Aristy-Rosa's case
concerns only a state pardon[.])''; see also Aguilera-Montero, 548
F3d at 1255 n.9.
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While the Department agrees with the uniform findings from the
courts and the BIA that the text and structure of the INA do not
provide a basis for a pardon waiver of inadmissibility under INA
section 212(a)(2)(A)-(B), these cases do not address the constitutional
authority of the President to pardon an offense against the United
States, and the effect of such pardons on a criminal-related
inadmissibility. Irrespective of express statutory authority to waive
the effects of a criminal conviction, a pardon granted by the President
of the United States removes the attachment of all consequences based
on the offense. See U.S. Const. art. II, Sec. 2; Effects of a
Presidential Pardon, 19 Op. O.L.C. 160 (1995) (quoting Ex Parte
Garland, 71 U.S. (4 Wall.) 333, 380 (1866)). Consequently, this rule
retains language in both regulations regarding the effect on
ineligibility under INA section 212(a)(2)(A)-(B) by reason of a
conviction for which the President of the United States has granted a
full and unconditional pardon.
This rulemaking also removes references to the effect of a pardon
granted by either the former High Commissioner for Germany acting
pursuant to Executive Order 10062 or the U.S. Ambassador to the Federal
Republic of Germany acting pursuant to Executive Order 10608. These
executive orders were issued in 1949 and 1955, respectively, and
pertained to the functions and authorities of the United States in
Germany following World War II. Actions undertaken pursuant to these
executive orders are now generally obsolete given the time that has
passed since the United States occupied Germany. As these provisions
pertain to adjudication of visa applications from individuals granted
pardons under these executive orders, the provisions are now obsolete
and are being removed in the interest of keeping Department regulations
clear and up to date.
Regulatory Findings
A. Administrative Procedure Act
The Department is publishing this notice as an interpretative rule
which, under the Administrative Procedure Act (APA), is not subject to
the general requirement for public notice and comment or the
requirement for a 30-day delayed effective date. 5 U.S.C. 553(b)-(c),
(d)(2). ``[T]he critical feature of interpretive rules is that they are
issued by an agency to advise the public of the agency's construction
of the statutes and rules which it administers.'' Perez v. Mortgage
Bankers Ass'n, 575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey
Mem'l Hosp., 514 U.S. 87, 99 (1995)). As explained above, this rule
amends the existing regulation to implement the plain meaning of
statutory authorities and the President's constitutional authority
regarding the effect of pardons on inadmissibility under INA sections
212(a)(2)(A)(i) and 212(a)(2)(B). Any rule that is ``based on an
agency's power to exercise its judgment as to how best to implement a
general statutory mandate'' is likely legislative. See United Tech.
Corp. v. EPA, 821 F.2d 714, 720 (D.C. Cir. 1987). This rule, however,
conveys the Department's interpretation of Congress having expressly
not provided an exception to inadmissibility based on a pardon,
reflecting a plain reading of the inadmissibility ground in INA section
212(a)(2)(A)(i) that multiple courts have shared; therefore, because it
is not based in any exercise of the Department's judgment or discretion
regarding these authorities, it is an interpretative rule.
Moreover, whether a rule is legislative or interpretative is
assessed by reviewing a range of factors related to: (1) whether the
agency would not have an adequate basis to perform duties in the
absence of the rule; (2) whether the agency has published the rule in
the Code of Federal Regulations; (3) whether the agency has explicitly
invoked a legislative authority; or (4) whether the rule effectively
amends a prior legislative rule. Am. Mining Cong. v. Mine Safety Health
Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). If any of the answers to
these questions are affirmative, then the rule is considered
legislative and not interpretative. Id.
None of the factors in American Mining apply to this rule. First,
even absent this rulemaking, the lack of any ambiguity regarding the
effect of a gubernatorial pardon on a conviction of a crime involving
moral turpitude makes clear that the Department lacks authority to
except applicants from ineligibility under INA section 212(a)(2)(A)-
(B), regardless of this rule. Second, while this rule will result in an
amended regulation that is published in the Code of Federal
Regulations, the changes are not based in legislative authority, which
the court in American Mining explained is the purpose of assessing
publication there. See id. at 1109 (``[A]n agency seems likely to have
intended a rule to be legislative if it has the rule published in the
Code of Federal Regulations[.]''). Third, the Department is not
invoking its general legislative authority to support or justify this
rule, as it is merely restating existing statutory and Constitutional
authority with respect to the effect of pardons. Id. at 1110;
Fertilizer Institute v. EPA, 935 F.2d 1303, 1308 (D.C. Cir. 1991).
Finally, this rule does not amend a prior legislative rule, as a rule
does not become an amendment of a prior legislative rule merely because
it clarifies an authority being interpreted. See Id. at 1112 (``If that
were so, no rule could pass as an interpretation of a legislative rule
unless it were confined to parroting the rule or replacing the original
vagueness with a rule.''). The existing rule appears based on
implementation of a 1954 BIA decision for which courts have
consistently reached the opposite conclusion regarding authority in the
INA to give effect to a pardon on a conviction of a crime involving
moral turpitude. See Matter of H--at 96. Consequently, the prior rule
appears to have also been interpretative and not legislative.
As this rule amends visa policy, which is a foreign affairs
function of the United States, it is also exempt from both the notice
and comment and
[[Page 67859]]
delayed effective date requirements of 5 U.S.C. 553 per subsection
(a)(1).
B. Regulatory Flexibility Act
As this rulemaking is not required to be published for notice and
comment under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth by the Regulatory
Flexibility Act. Nonetheless, as this rule only directly impacts visa
applicants, the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
C. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act (5 U.S.C. 801 et seq.). 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 import markets.
D. Executive Orders 12866, 13563, and 14094
Executive Orders (E.O.) 12866, 13563, and 14094 do not apply to
this rule, as it pertains to a foreign affairs function.\5\
Notwithstanding the above, the Department has submitted this rule to
OIRA for review and OIRA has deemed this rule not to be a significant
regulatory action. For the reasons stated above, as this rule affects
only visa applicants, the Department is confident this rule will not
result in significant impacts to U.S. persons, including U.S. citizens
or lawful permanent residents.
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\5\ See E.O. 12866 Sec. 3(d)(2) (excepting from the definition
of regulation those rules ``that pertain to a . . . foreign affairs
function of the United States'').
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E. Executive Order 13175
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
F. Paperwork Reduction Act
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
G. Other
The Department has also considered this rule under the Unfunded
Mandates Reform Act of 1995 and Executive Orders 12372, 13132, and
13272 and affirms this rule is consistent with the applicable mandates
or guidance therein.
List of Subjects in 22 CFR Part 40
Administrative practice and procedure, Aliens, Foreign relations,
Immigration, Passports and visas.
Accordingly, for the reasons set forth in the preamble, 22 CFR 40
is amended as follows:
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 40 continues to read as follows:
Authority: 8 U.S.C. 1104, 1182, 1183a, 1641
0
2. Revise Sec. 40.21(a)(5) to read as follows.
Sec. 40.21 Crimes involving moral turpitude and controlled substance
violators.
(a) * * *
(5) Effect of pardon by appropriate U.S. authorities/foreign
states. An alien shall not be considered ineligible under INA
212(a)(2)(A)(i)(I) by reason of a conviction of a crime involving moral
turpitude for which a full and unconditional pardon has been granted by
the President of the United States. A legislative pardon, a pardon by
the Governor of a State of the United States, or a pardon, amnesty,
expungement of penal record or any other act of clemency granted by a
foreign state shall not serve to remove a ground of ineligibility under
INA 212(a)(2)(A)(i)(I).
* * * * *
Sec. 40.22 [Amended]
0
3. Revise Sec. 40.22(c) to read as follows.
Sec. 40.22 Multiple criminal convictions.
* * * * *
(c) Effect of pardon by appropriate U.S. authorities/foreign
states. An alien shall not be considered ineligible under INA
212(a)(2)(B) by reason in part of having been convicted of an offense
for which a full and unconditional pardon has been granted by the
President of the United States. A legislative pardon, a pardon by the
Governor of a State of the United States, or a pardon, amnesty,
expungement of penal record or any other act of clemency granted by a
foreign state shall not serve to remove a ground of ineligibility under
INA 212(a)(2)(B).
* * * * *
Julie M. Stufft,
Deputy Assistant Secretary for Visa Services, Consular Affairs,
Department of State.
[FR Doc. 2024-18659 Filed 8-21-24; 8:45 am]
BILLING CODE 4710-13-P
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