[Federal Register: March 31, 2000 (Volume 65, Number 63)]
[Rules and Regulations]
[Page 17127-17128]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr00-1]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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[[Page 17127]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 340
[INS No. 1858-97]
RIN 1115-AF63
Revoking Grants of Naturalization
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations relating to administrative revocation of
naturalization by changing the burden of proof the Service must satisfy
in order to administratively revoke a grant of naturalization and
clarifying the 180-day period for the rendering of the district
director's decision. This rule clarifies these issues in the final rule
that was published in the Federal Register on October 28, 1996, at 61
FR 55550.
DATES: Effective date: This rule is effective March 31, 2000.
Comment date: Written comments must be submitted on or before May
30, 2000.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1858-97 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Janice B. Podolny, Office of the
General Counsel, Immigration and Naturalization Service, 425 I Street,
NW, Room 6100, Washington, DC 20536, telephone (202) 514-2895.
SUPPLEMENTARY INFORMATION: Section 310(a) of the Immigration and
Nationality Act (the Act), 8 U.S.C. 1421(a), gives the Attorney General
the sole authority to grant a person naturalization as a United States
citizen. As a concomitant to the authority under section 310(a),
section 340(h) of the Act, 8 U.S.C. 1451(h), preserves the Attorney
General's authority to ``correct, reopen, alter, modify, or vacate an
order naturalizing [a] person'' as a United States citizen. On October
28, 1996, the Service published a final rule in the Federal Register at
61 FR 55550 promulgating regulations at 8 CFR 340.1, to provide a
regulatory procedure for exercising this authority.
The Service's final rule provided that the Service could reopen a
naturalization proceeding and revoke naturalization if the Service
obtained ``credible and probative evidence'' that the individual's
naturalization was subject to revocation. The regulation provided that
after this initial showing by the Service, the burden of proof shifted
to the individual whose naturalization was subject to revocation to
establish that he or she was, in fact, eligible for naturalization. The
Service, however, determined that it would adhere to the higher
standard of proof applicable in judicial denaturalization proceedings,
rather than the credible and probative standard. Accordingly, the
Service has only initiated revocation proceedings where it has obtained
clear, unequivocal, and convincing evidence and has revoked
naturalization only in cases where the Service is able to sustain this
burden throughout the administrative proceeding.
Consistent with this approach, the Service has made every effort,
including review of all proposed revocation cases at the Headquarters
level, to ensure that revocation of naturalization be pursued only if
the evidence meets this higher standard. This interim rule changes the
applicable burden of proof to conform with Service practice. This
interim rule provides that the Service will only initiate revocation
proceedings based on clear unequivocal, and convincing evidence with
the burden of proof remaining with the Service throughout the
administrative process. If it comes to the attention of the Service
that in any case that became final before March 31, 2000, the Service
relied on the lower standard of proof, the Service will, on its own
motion, reconsider the decision under the clear, unequivocal, and
convincing standard of proof.
In addition, this interim rule clarifies that the expiration of the
180-day period for the district director's decision does not preclude
the district director from making a final decision on the merits.
Consequently, this interim rule indicates that the Service should,
where practicable, render a decision within 180 days of service of the
notice of intent to reopen naturalization proceedings and to revoke
naturalization. This ensures that the Service is able to carefully
review all of the evidence in every administrative revocation case and
render a correct decision without overly rigid and artificial time
restrictions. Since this naturalized citizen continues to enjoy the
rights of citizenship until the decision to reopen and revoke
naturalization becomes administratively final, this amendment does not
adversely affect the rights of the naturalized citizen.
Notice and Comment
Since this regulation simply restates the higher burden of proof
that the Service has been applying in administrative revocation
proceedings, this rule is a general statement of policy. The change to
the 180-day period to render a decision is an interpretative rule of
agency practice and procedure. The Service, therefore, has authority
under 5 U.S.C. 553 to adopt this rule without prior notice and comment.
The Commissioner, nevertheless, considers it appropriate to seek public
comments on this rule, and has established a 60-day comment period.
Despite the comment period, this rule is an interim rule that will
enter into force upon publication in the Federal Register. Because the
current 8 CFR 340.1 places the burden of proof on the naturalized
citizen, naturalized citizens may, in good faith, misunderstand the
evidentiary standards and procedural requirements that the Service must
satisfy in order to reopen and revoke a grant of naturalization. The
Service has already ensured that each notice of intent to reopen
naturalization proceedings and to revoke naturalization states the
burden of proof as clear, unequivocal, and convincing
[[Page 17128]]
evidence. By clarifying the burden of proof that the Service has been
adhering to in practice, this interim rule provides full protection of
the naturalization citizen's rights. For this reason, the Commissioner
finds that it would be contrary to the public interest for the Service
to observe the 30-day delay that must ordinarily apply before a new
regulation may enter into force. The Commissioner, therefore, also
finds that good cause exists for making this rule effective upon
publication in the Federal Register.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This rule proposes a procedure for the Service to
revoke grants of naturalization. The affected parties are not small
entities, and the impact of the regulation is not an economic one.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure, in the aggregate, of
$100 million of more in any 1 year, by State, local, and tribal
government, or by the private sector, and the rule will not
significantly or uniquely affect small government. 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 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in cost 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 is considered by the Office of Management and Budget to
be a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review. Accordingly, the Service
has submitted this regulation to the Office of Management and Budget
for review.
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 section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards provided in sections 3(a)
and 3(b)(2) of Executive Order 12988.
List of Subjects in 8 CFR Part 340
Citizenship and naturalization, Law enforcement.
Accordingly, part 340 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
1. The authority citation for part 340 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1443.
2. Section 340.1 is amended by:
a. Revising paragraph (a) introductory text;
b. Revising paragraph (b)(6); and by
c. Revising paragraph (d)(1), to read as follows:
Sec. 340.1 Reopening of a naturalization application by a district
director pursuant to section 340(h) of the Act.
(a) Reopening general. On its own motion, the Service may reopen a
naturalization proceeding and revoke naturalization in accordance with
this section, if the Service obtains clear, convincing, and unequivocal
evidence which:
* * * * *
(b) * * *
(6) Burden of proof. Upon service of a notice of intent to reopen
naturalization proceedings and to revoke naturalization, the Service
bears the burden of proof by clear, convincing, and unequivocal
evidence that the grounds for reopening and revoking set forth in the
notice have been met.
* * * * *
(d) * * *
(1) The district director shall render, where practicable, a
written decision on the reopened naturalization application within 180
days of service of the notice of intent to reopen naturalization
proceedings and to revoke naturalization. The decision shall consist of
findings of fact, conclusions of law, and a final determination on the
naturalization application. Notice of decision shall be served on the
applicant or his or her attorney or representative, if applicable.
* * * * *
Dated: March 24, 2000.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 00-7963 Filed 3-30-00; 8:45 am]