Aliens and Nationality; Homeland Security; Reorganization of Regulations

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

The Homeland Security Act of 2002, as amended, transfers the functions of the Immigration and Naturalization Service to the Department of Homeland Security. In a rule published in the Federal Register on February 28, 2003, the Department of Justice reorganized title 8 of the Code of Federal Regulations to reflect the transfer of functions of the Immigration and Naturalization Service through the division of jurisdiction over regulations currently codified in 8 CFR chapter I, by establishing a new chapter V in 8 CFR, by transferring or duplicating certain parts and sections to the new chapter V and to 28 CFR chapter I, and by making other amendments as necessary to continue existing authorities after the transfer of functions to the Department of Homeland Security on March 1, 2003. This rule effects technical amendments to internal citations in chapter V.

DATES:

This rule is effective on February 28, 2003.

FOR FURTHER INFORMATION CONTACT:

Executive Office for Immigration Review: Chuck Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470; Civil Division: Thomas W. Hussey, Director, Office of Immigration Litigation, United States Department of Justice, 950 Pennsylvania Ave. NW., Washington, DC 20530, telephone (202) 616-4852.

SUPPLEMENTARY INFORMATION:

The Homeland Security Act of 2002, as amended, (“HSA”) transfers the functions of the Immigration and Naturalization Service (“Service” or “INS”) to the Department of Homeland Security (“DHS”). Public Law 107-296, title IV, subtitles D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002), as amended (“HSA”). The HSA retains in the Department of Justice, under the direction of the Attorney General, the functions of the Executive Office for Immigration Review (“EOIR”) and other law determination and litigation functions. HSA, 116 Stat. at 2273. This rule reflects technical amendments to citations in 8 CFR chapter V.

Changes to section citations to sections within the same part of chapter V have already been accomplished in the rule published February 28, 2003. This rule sets out the tables of citation changes for citations to sections in other parts of both chapters I and V. Where appropriate, the changes are made to the conformed sections of chapter V, but there are instances where the conformed section and specific paragraph cite to authority that does not related to functions that will remain in the Department of Justice. Accordingly, these citations are changed to refer to the appropriate section of chapter I of this part as it is being transferred to the Department of Homeland Security. For example, authority of the Service that is contained in chapter I often requires a change in chapter V to eliminate “in this chapter” language and refer directly to the Service's authority “in chapter I.” This is consistent with the Department of Justice long range plan in eliminating unnecessary duplication of provisions between chapter I and chapter V.

Administrative Procedure Act

The Department of Justice finds that good cause exists for adopting this rule as a final rule and without public notice and comment under 5 U.S.C. 553 because this rule only makes technical amendments to the organization, procedures, and practices of the Department of Justice to improve the organization of the regulations of the Department of Justice and reflects the transfer of functions contemplated by the Homeland Security Act of 2002. Similarly, because this final rule makes only technical changes in cross-references in existing regulations, this final rule is not subject to the effective date limitation of 5 U.S.C. 553(d).

Regulatory Flexibility Act

Because no notice of proposed rule-making is required for this rule under the Administrative Procedure Act (5 U.S.C. 553), the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised record keeping or reporting requirements.

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.

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review.

Executive Order 13132

This rule 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 section 6 of Executive Order 13132, the Department of Justice has determined that this rule does not have sufficient federalism implications to warrant a federalism summary impact statement.

Executive Order 12988

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

List of Subjects

8 CFR Part 1001

• Administrative practice and procedure and Immigration

8 CFR Part 1003

• Administrative practice and procedure
• Aliens
• Immigration
• Legal Services
• Organization and function (Government agencies)

8 CFR Part 1101

• Immigration

8 CFR Part 1103

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Reporting and recordkeeping requirements

8 CFR Part 1205

• Administrative practice and procedure and Immigration

8 CFR Part 1208

• Administrative practice and procedure
• Aliens
• Immigration and Reporting and recordkeeping requirements

8 CFR Part 1209

• Immigration
• Refugees and Reporting and recordkeeping requirements

8 CFR Part 1211

• Immigration
• Passports and visas and Reporting and recordkeeping requirements

8 CFR Part 1212

• Administrative practice and procedure
• Aliens
• Immigration
• Passports and visas and Reporting and recordkeeping requirements

8 CFR Part 1216

• Administrative practice and procedure, and Aliens

8 CFR Part 1235

• Administrative practice and procedure
• Aliens
• Immigration and Reporting and recordkeeping requirements

8 CFR Part 1236

• Administrative practice and procedure
• Aliens and Immigration

8 CFR Part 1238

• Administrative practice and procedure
• Aliens and Immigration

8 CFR Part 1239

• Administrative practice and procedure
• Aliens and Immigration

8 CFR Part 1240

• Administrative practice and procedure and Aliens

8 CFR Part 1241

• Administrative practice and procedure
• Aliens and Immigration

8 CFR Part 1244

• Administrative practice and procedure and Immigration

8 CFR Part 1245

• Aliens
• Immigration
• Reporting and recordkeeping requirements

8 CFR Part 1246

• Administrative practice and procedure
• Aliens and immigration

8 CFR Part 1249

• Aliens
• Immigration and Reporting and recordkeeping requirements

8 CFR Part 1270

• Administrative practice and procedure
• Aliens
• Employment
• Fraud and Penalties

8 CFR Part 274a

• Administrative practice and procedure
• Aliens
• Employment
• Penalties, and Reporting and recordkeeping requirements

8 CFR Part 1292

• Administrative practice and procedure
• Immigration
• Lawyers and Reporting and recordkeeping requirements

8 CFR Part 1337

• Citizenship and naturalization and Courts

Authority and Issuance

For the reasons set forth in the preamble, the Department of Justice amends titles 8 and 28 of the Code of Federal Regulations as follows:

Title 8—Aliens and Nationality

Chapter V—Executive Office for Immigration Review, Department of Justice

PART 1001—DEFINITIONS

1. The authority citation for part 1001 continues to read as follows:

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

2. Amend part 1001 as follows:

Chapter V, Subchapter A

PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

3. The authority citation for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386; 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

4. Amend part 1003 as follows:

Chapter V, Subchapter B

PART 1101—PRESUMPTION OF LAWFUL ADMISSION

5. The authority citation for part 1101 continues to read as follows:

Authority: 8 U.S.C. 1103, 8 CFR part 2.

6. Amend part 1101 as follows:

PART 1103—APPEALS, RECORDS, AND FEES

7. The authority citation for part 1103 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510.

8. Amend part 1101 as follows:

Chapter V, Subchapter B

PART 1205—REVOCATION OF APPROVAL OF PETITIONS

9. The authority citation for part 1205 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, and 1186a.

10. Amend part 1205 as follows:

Chapter V, Subchapter B

PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

11. The authority citation for part 1208 continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

12. Amend part 1208 as follows:

Chapter V, Subchapter B

PART 1209—ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED ASYLUM

13. The authority citation for part 1209 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 1282; 8 CFR part 2.

14. Amend part 1209 as follows:

Chapter V, Subchapter B

PART 1212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

15. The authority citation for part 1212 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1225, 1226, 1227, 1228; 8 CFR part 2.

16. Amend part 1212 as follows:

Chapter V, Subchapter B

PART 1216—CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS

17. The authority citation for part 1216 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8 CFR part 2.

18. Amend part 1216 as follows:

Chapter V, Subchapter B

PART 1235—INSPECTION OF PERSONS APPLYING FOR PERMISSION

19. The authority citation for part 1235 continues to read as follows:

Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1201, 1224, 1225, 1226, 1228; 8 CFR part 2.

20. Amend part 1235 as follows:

Chapter V, Subchapter B

PART 1236—APPREHENSION AND DETENTION OF INADMISSABLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

21. The authority citation for part 1236 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

22. Amend part 1236 as follows:

Chapter V, Subchapter B

PART 1238—EXPEDITED REMOVAL OF AGGRAVATED FELONS

23. The authority citation for part 1238 continues to read as follows:

Authority: 8 U.S.C. 1228; 8 CFR part 2.

24. Amend part 1238 as follows:

Chapter V, Subchapter B

PART 1239—INITIATION OF REMOVAL PROCEEDINGS

25. The authority citation for part 1239 continues to read as follows:

Authority: 8 U.S.C. 1103, 1221, 1229; 8 CFR part 2.

26. Amend part 1239 as follows:

Chapter V, Subchapter B

PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES

27. The authority citation for part 1240 continues to read as follows:

Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2.

28. Amend part 1240 as follows:

Chapter V, Subchapter B

PART 1241—APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED

29. The authority citation for part 1241 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.

30. Amend part 1241 as follows:

Chapter V, Subchapter B

PART 1244—TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES

31. The authority citation for part 1244 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1254a note, 8 CFR part 2.

32. Amend part 1244 as follows:

Chapter V, Subchapter B

PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

33. The authority citation for part 1245 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2.

34. Amend part 1245 as follows:

Chapter V, Subchapter B

PART 1246—RESCISSION OF ADJUSTMENT OF STATUS

35. The authority citation for part 1246 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.

36. Amend part 1246 as follows:

Chapter V, Subchapter B

PART 1249—CREATION OF RECORDS OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE

37. The authority citation for part 1249 continues to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1259; 8 CFR part 2.

38. Amend part 1249 as follows:

Chapter V, Subchapter B

PART 1270—PENALTIES FOR DOCUMENT FRAUD

39. The authority citation for part 1270 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

40. Amend part 1270 as follows:

Chapter V, Subchapter B

PART 1274a—CONTROL OF EMPLOYMENT OF ALIENS

41. The authority citation for part 1274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

42. Amend part 1274a as follows:

Chapter V, Subchapter B

PART 1292—REPRESENTATION AND APPEARANCES

43. The authority citation for part 1292 continues to read as follows:

Authority: Secs. 103, 262, 289, 66 Stat. 173, 224, 234; 8 U.S.C. 1103, 1302, 1359; 45 Stat. 401, 54 Stat. 670; 8 U.S.C. 226a, 451.

44. Amend part 1292 as follows:

Chapter V, Subchapter C

PART 1337—OATH OF ALLEGIANCE

45. The authority citation for part 1337 continues to read as follows:

Authority: 8 U.S.C. 1103, 1443, 1448; 8 CFR part 2.

46. Amend part 1292 as follows: