[Federal Register Volume 60, Number 60 (Wednesday, March 29, 1995)]
[Rules and Regulations]
[Pages 16042-16043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7684]



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DEPARTMENT OF JUSTICE
8 CFR Parts 235 and 242

[INS No. 1616-93]
RIN 1115-AD50


List of Countries for Which Privilege of Communication is Allowed

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule revises the list of countries with which the United 
States has existing treaties requiring immediate communication with 
appropriate consular or diplomatic officers whenever nationals of those 
countries are detained in exclusion or expulsion proceedings. This rule 
is necessary to ensure that foreign nationals who are arrested by 
immigration officers in the United States will be aware of their 
privilege of communication with the consular or diplomatic officers of 
the country of his or her nationality. It is also necessary that 
immigration officers be kept abreast of changes of United States treaty 
obligations that require mandatory notification to certain countries 
when nationals of those countries are arrested. When aliens are 
detained by the Immigration and Naturalization Service (INS) officers 
at ports of entry, consular or diplomatic officers must be notified as 
presently required in 8 CFR 242 for deportation proceedings. Therefore, 
a addition will be made at 8 CFR 235 to make clear that the 
notification requirement applies equally in exclusion proceedings. This 
revision will have an impact on ensuring that the treaty rights of 
foreign nationals are protected.

DATES: This interim rule is effective March 29, 1995. Written comments 
must be submitted on or before May 30, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street NW., Room 5307, Washington, DC 20536 Attention: 
Public Comment Clerk. To ensure proper handling please reference INS 
number 1616-93 on your correspondence. Comments are available for 
public inspection at the above address by calling (202) 514-3038 to 
arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:
Ira L. Frank, Senior Special Agent, Investigations Division, 
Immigration and Naturalization Service, 425 I Street NW., Room 1000, 
Washington, DC 20536, telephone (202) 514-0747.

SUPPLEMENTARY INFORMATION: A number of changes are necessary to revise 
8 CFR 242.2(g), the regulation that ensures immediate communication 
with appropriate consular or diplomatic officers whenever nationals of 
particular countries with which we have existing treaties are detained 
in exclusion or expulsion proceedings. A cross reference is being made 
to part 235 by adding a subsection, 235.3(g), to make clear that the 
mandatory notification requirement applies equally to exclusion and 
deportation proceedings.
    Three countries, Malawi, Kenya, and Uganda are being removed from 
the list of countries for which consular notification is mandatory. The 
United States-United Kingdom consular convention which made 
notification mandatory is no longer in effect for these three 
countries, although it was in effect for a time after they became 
independent.
    Other countries removed from the mandatory notification list 
include Algeria, Argentina, Australia, Austria, Belgium, Bolivia, 
Brazil, Cameroon, Canada, Chile, Colombia, Cuba, Czechoslovakia, 
Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, France, 
Gabon, Federal Republic of Germany, Guatemala, Holy See, Honduras, 
Iraq, Ireland, Italy, Laos, Lesotho, Liechtenstein, Luxembourg, 
Madagascar, Mali, Mexico, Nepal, New Zealand, Niger, Oman, Pakistan, 
Panama, Paraguay, Portugal, Republic of China, Rwanda, Senegal, 
Somalia, Spain, Sweden, Switzerland, Tunisia, Uruguay, Upper Volta, 
Venezuela, Republic of Viet-Nam, and Yugoslavia. These countries have 
been removed because the Service has been informed by the Department of 
State that there has never been an obligation required by treaty to 
provide mandatory notification. Henceforth, the listing will only 
reflect those countries that do have treaties with the United States.
    The disintegration of the Union of Soviet Socialist Republics 
(USSR) causes us to list the twelve Soviet successor states separately. 
The twelve states are: Armenia, Azerbaijan, Belarus, Georgia, 
Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan, 
Turkmenistan, Ukraine, and Uzbekistan.
    We are also, however, listing ``Union of Soviet Socialist Republics 
(USSR),'' with a footnote listing the twelve successor states and 
noting that they continue to be covered by the mandatory notice 
provision of the United States-USSR consular convention. Including 
``USSR'' with a footnote as a safeguard is advisable for the time 
being, since some nationals of the successor states may still be 
travelling on USSR passports.
    Due to the break up of Czechoslovakia, the Czech and Slovak 
Republics will be listed separately as mandatory notification 
countries. The consular convention with Czechoslovakia, which contained 
a mandatory notification provision, remains in force with respect to 
both new countries.
    Other countries being added to the mandatory notification list as a 
result of treaties with the United States include Albania, Antigua, 
Bahamas, Barbados, Belize, Brunei, Bulgaria, Dominica, Grenada, 
Kiribati, Mongolia, St. Kitts/Nevis, St. Lucia, St. Vincent/Grenadines, 
Seychelles, South Korea, and Tuvalu.
    The Service's implementation of this rule as an interim rule, with 
provision for post-promulgation public comment, is based upon the 
``good cause'' exception found at 5 U.S.C. 553(d)(3). The reasons and 
the necessity for immediate implementation of this interim rule are as 
follows: The treaties to which the United States is a signatory require 
immediate communication with appropriate consular or diplomatic 
officers whenever nationals of particular countries are detained in 
exclusion or expulsion proceedings. Accordingly, implementation of this 
requirement cannot be delayed without the United States being in 
violation of its treaty obligations.

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 [[Page 16043]] because of the following factors. The 
rule primarily concerns matters of agency records and proof of facts at 
administrative hearings that do not concern small entities.

Executive Order 12866

    This rule is not considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, and the Office of Management and Budget 
has waived its review process under section 6(a)(3)(A).

Executive Order 12612

    The regulations proposed herein will not have substantial direct 
effect 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 12612, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Executive Order 12606

    The Commissioner of the Immigration and Naturalization Service 
certifies that she has assessed this rule in light of the criteria in 
Executive Order 12606 and has determined that this regulation has no 
impact on family well-being.

List of Subjects

8 CFR Part 235

    Administrative practice and procedure, Aliens, Detention, 
Immigration, Port of entry, Reporting and recordkeeping requirements.

8 CFR Part 242

    Administrative practice and procedure, Aliens.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

    1. The authority citation for part 235 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 
1226, 1227, 1228, 1252.

    2. In Sec. 235.3, a new paragraph (g) is added to read as follows:


Sec. 235.3  Detention and deferred inspection.

* * * * *
    (g) Privilege of communication. The mandatory notification 
requirements of consular and diplomatic officers pursuant to 8 CFR 
242.2(g) apply to exclusion proceedings.

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    3. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.

    4. In Sec. 242.2, paragraph (g) is revised to read as follows:


Sec. 242.2  Apprehension, custody, and detention.

* * * * *
    (g) Privilege of communication. Every detained alien shall be 
notified that he or she may communicate with the consular or diplomatic 
officers of the country of his or her nationality in the United States. 
Existing treaties require immediate communication with appropriate 
consular or diplomatic officers whenever nationals of the following 
countries are detained in exclusion or expulsion proceedings, whether 
or not requested by the alien and even if the alien requests that no 
communication be undertaken in his or her behalf:

Albania\1\
Antigua
Armenia
Azerbaijan
Bahamas
Barbados
Belarus
Belize
Brunei
Bulgaria
China (People's Republic of)\2\
Costa Rica
Cyprus
Czech Republic
Dominica
Fiji
Gambia, The
Georgia
Ghana
Grenada
Guyana
Hungary
Jamaica
Kazakhstan
Kiribati
Kuwait
Kyrgyzstan
Malaysia
Malta
Mauritius
Moldova
Mongolia
Nigeria
Philippines
Poland
Romania
Russian Federation
St. Kitts/Nevis
St. Lucia
St. Vincent/Grenadines
Seychelles
Sierra Leone
Singapore
Slovak Republic
South Korea
Tajikistan
Tanzania
Tonga
Trinidad/Tobago
Turkmenistan
Tuvalu
Ukraine
United Kingdom\3\
U.S.S.R.\4\
Uzbekistan
Zambia
    1. Arrangements with these countries provide that U.S. 
authorities shall notify responsible representatives within 72 hours 
of the arrest or detention of one of their nationals.
    2. When Taiwan nationals (who carry ``Republic of China'' 
passports) are detained, notification should be made to the nearest 
office of the Coordination Council for North American Affairs, the 
unofficial entity representing Taiwan's interests in the United 
States.
    3. British dependencies are also covered by this agreement. They 
are: Anguilla, British Virgin Islands, Hong Kong, Bermuda, 
Montserrat, and the Turks and Caicos Islands. Their residents carry 
British passports.
    4. All U.S.S.R. successor states are covered by this agreement. 
They are: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, 
Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan, 
Ukraine, and Uzbekistan.
* * * * *
    Dated: March 23, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 95-7684 Filed 3-28-95; 8:45 am]
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