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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: July 26, 2002 (Volume 67, Number 144)]
[Proposed Rules]               
[Page 48818-48821]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy02-21]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 103

[INS No. 2198-02; AG Order No. 2603-2002]
RIN 1115-AG61

 
Address Notification To Be Filed With Designated Applications

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend the regulations of the 
Immigration and Naturalization Service (Service) by requiring every 
alien who is applying for immigration benefits to acknowledge having 
received notice that he or she is required to provide a valid current 
address to the Service, including any change of address within 10 days 
of the change; that the Service will use the most recent address 
provided by the alien for all purposes, including the service of a 
Notice to Appear if the Service initiates removal proceedings; and, if 
the alien has changed address and failed to provide the new address to 
the Service, that the alien will be held responsible for any 
communications sent to the most recent address provided by the alien. 
This rule will satisfy the requirements for advance notice to the alien 
of the obligation to provide a current address to the Service, and of 
the consequences that may result for failure to do so, including the 
entry of an in absentia removal order against the alien if the alien 
fails to appear at a removal hearing.

DATES: Written comments must be submitted on or before August 26, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division (HQRFS), Immigration and Naturalization 
Service, 425 I Street NW, Room 4034, Washington, DC 20536. To ensure 
proper handling please reference INS No. 2198-02 on your 
correspondence. You may also submit comments electronically to the 
Service at insregs@usdoj.gov. When submitting comments electronically, 
please include INS No. 2198-02 in the subject box. Comments are 
available for public inspection at the above address by calling (202) 
514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Barry O'Melinn, Chief Appellate 
Counsel, 5113 Leesburg Pike, Room 200, Falls Church, Virginia 22041, 
(703) 756-6257.

SUPPLEMENTARY INFORMATION: This proposed rule would amend 8 CFR 103.2 
by adding a new paragraph that requires aliens to acknowledge having 
received notice of the existing statutory obligation to keep the 
Service informed of their current address, and that, if they change 
address and fail to provide notice of the change of address to the 
Service, they will be held responsible for all communications sent to 
the most recent address provided by the alien.
    The proposed rule will assist aliens who apply for benefits to 
ensure that the Service will be able to contact them with respect to 
any issues relating to their applications for benefits, which may 
include requests by the Service for additional information or for the 
aliens to appear for an interview in connection with the applications. 
An alien who fails to respond to such communications from the Service 
may lose substantial rights, because the Service will deem the alien to 
have abandoned the application and deny it. See 8 CFR 103.2(b)(13).
    The changes made by the proposed rule will also make clear to the 
alien that, should it ever become necessary for the Service to place 
the alien in removal proceedings, the Service will be able to 
effectuate service of the Notice to Appear, Form I-862, by mailing it 
to the most recent address provided by the alien for purposes of 
removal proceedings, as provided in section 239(c) of the Act, and 
that, if the alien fails to appear at a scheduled hearing, after notice 
of the hearing was sent to the most recent address provided by the 
alien, the alien is subject to being ordered removed in absentia. This 
rule is intended to avoid the kind of factual circumstances that gave 
rise to the decision by the Board of Immigration Appeals (Board) in 
Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), which concluded that an 
in absentia order cannot be entered against an alien who failed to 
appear at removal proceedings where the alien had not provided a new 
address in the last five years and the Service knew that the alien did 
not receive the Notice to Appear because it was returned by the Postal 
Service as undeliverable.

Why Is It Necessary To Add Mandatory Acknowledgments to Service 
Forms?

    The Board's decision in Matter of G-Y-R- focused on the issue of 
constructive notice of the initiation of removal proceedings, in a case 
where the Service knew that the subject alien did not actually receive 
the Notice to Appear because it was returned by the Postal Service as 
undeliverable. In that circumstance, the Board held that an in absentia 
order of removal is inappropriate, because the record reflected that 
the alien did not actually receive, and could not be charged with 
receiving, the Notice to Appear informing the alien of the statutory 
address obligations associated with removal proceedings and of the 
consequences of failing to provide a current address. Under the present 
law and regulations, as construed by the Board, an alien cannot be 
charged with

[[Page 48819]]

having been advised of the obligation to provide a current address for 
purposes of removal proceedings, and of the associated penalties for 
failing to do so, until he or she is served with the Notice to Appear, 
which (under the current practice) is the first document that sets 
forth those specific notifications. The Board therefore concluded that 
it could not sustain an in absentia order of removal, unless the alien 
could properly be charged with having received the Notice of Appear and 
thus having received these warnings.
    The Board based its reasoning on a reading of section 239(a) and 
(c) of the Act, 8 U.S.C. 1229(a) and (c), in conjunction with section 
240(b)(5) of the Act, 8 U.S.C. 1229a(b)(5). The Board determined that 
these provisions were interrelated, and collectively precluded the 
entry of an in absentia order of removal when the alien had not 
received the Notice to Appear and thus did not know of the particular 
address obligations associated with removal proceedings. Specifically, 
the Board noted that section 239(a)(1)(F) of the Act mandates that the 
Notice to Appear apprise the alien of the particular address obligation 
respecting removal proceedings and also warn the alien of the potential 
for an in absentia order if the alien fails to provide address 
information as instructed by the Notice to Appear.
    The Board read the in absentia provisions in section 240(b)(5)(A) 
of the Act, in conjunction with section 239(a)(1)(F) of the Act, to 
find that an alien does not provide a ``section 239(a)(1)(F)'' address 
(or ``have provided'' it and therefore not need to change it) unless 
the alien had been advised to do so. The Board noted that such a 
conclusion was reinforced by the language of section 239(c) of the Act, 
which permits service by mail when the address used is ``provided by 
the alien in accordance with subsection (a)(1)(F).'' The Board also 
observed that nothing in the existing regulations provides for a 
different result.
    As noted by the dissent in Matter of G-Y-R-, however, this 
interpretation creates a quandary for the Service in those situations 
in which it must resort to service of a Notice to Appear by regular 
mail, which is expressly authorized by section 239(c) of the Act. 
Specifically, the Notice to Appear not only furnishes notice of the 
hearing, but also provides the required information pertaining to an 
alien's statutory address obligations and the consequences of failing 
to comply. Accordingly, an address to which the Service sends a Notice 
to Appear might be insufficient for purposes of in absentia hearings if 
the alien fails to appear for the scheduled hearing, unless the alien 
has actual knowledge of the advisories and is actually on notice of the 
consequences of a failure to provide a current address and a failure to 
appear at a removal hearing.
    The Service acknowledges the importance of providing advance notice 
to aliens, as discussed in Matter of G-Y-R-. However, there is nothing 
in the existing law that would prevent the Service from providing such 
notice to aliens even before the service of a Notice to Appear. Indeed, 
section 239(a)(1)(F)--establishing the ``requirement that the alien 
must immediately provide (or have provided) the Attorney General with a 
written record of an address and telephone number (if any) at which the 
alien may be contacted respecting removal proceedings''--expressly 
contemplates that the alien might already ``have provided'' written 
notice of an address for purposes of removal proceedings even before 
receiving that notification in the Notice to Appear. Thus, more than 
one federal court of appeals has concluded without hesitation that 
``[t]he statute clearly provides that notice to the alien at the most 
recent address provided by the alien is sufficient notice, and that 
there can be an in absentia removal after such notice.'' Dominguez v. 
United States Attorney General, 284 F.3d 1258, 1260 (11th Cir. 2002); 
see also Al-Rawahneh v. INS, No. 00-4447, 2002 WL 1021866 (6th Cir. May 
17, 2002) (following Dominguez); Sabaileh v. INS, 3 Fed. Appx. 521, 523 
(7th Cir. 2001) (concluding that mailed service to the alien's ``last 
known address'' was sufficient under the materially identical prior 
version of the statute, because the alien ``failed to promptly notify 
the INS of the change in his address, despite having been expressly 
warned of his responsibility to do so'').
    Accordingly, in order to ameliorate the practical difficulties that 
the decision in Matter of G-Y-R- poses for both aliens and the Service, 
this proposed rule will change the substance of the regulations and the 
notifications provided to aliens. As revised, the relevant forms will 
provide advance notice of the obligation to provide a current address 
that may be used by the Service for purposes of removal proceedings, 
and also of the consequences of the failure to provide such an address, 
in light of the Board's discussion of the issues in Matter of G-Y-R-.
    Under this proposed rule, the Service will have the means to ensure 
that aliens who apply for immigration benefits will have received 
actual, advance notice of their statutory obligation to provide a 
current address to the Attorney General, including notice that the most 
recent address provided by the alien can be used for purposes of 
removal proceedings (should such proceedings ever be initiated), and 
the consequences of failing to provide a current address, even before 
the issuance of a Notice to Appear. The address provided by an alien on 
an application for benefits under the Act will be used by the Service 
for all purposes, including requests for additional information in 
considering the application, providing a final decision on the 
application, and any other communication, such as forwarding a Notice 
to Appear, if removal proceedings are instituted.
    Specifically, the Service will amend the various application forms 
for immigration benefits, as well as Form AR-11 (Alien's Change of 
Address Card), to require that an alien must provide the Service with 
his or her current address, and to contain an express acknowledgment by 
the applicant that he or she has read and is aware of the obligation to 
provide the Service with notice of change of address within 10 days of 
such a change, and is aware that the Service may send written 
communications to the most recent address provided by the alien for all 
purposes, including removal proceedings. Finally, the amended forms 
will advise that an alien who changes address and fails to provide a 
current address to the Service will be held accountable for all written 
communications sent to the most recent address provided by the alien, 
which may include a Notice to Appear and a notice of scheduled 
immigration hearings. Accordingly, such an alien can properly be 
charged with having received the necessary notice, and may properly be 
ordered removed in absentia in accordance with section 240(b)(5) of the 
Act and 8 CFR 3.26, if he or she fails to appear at a scheduled 
hearing.

What Are an Alien's Obligations To Provide an Address to the 
Service?

    Section 262(a) of the Act requires that virtually every alien over 
the age of 14 who remains in the United States for more than 30 days 
must register with the Service. Section 265(a) of the Act requires that 
every alien who is required to register must provide the Attorney 
General with each change of address and new address within 10 days from 
the date of such change of address.

[[Page 48820]]

What Are the Consequences of Not Registering or Filing a Change of 
Address?

    A willful failure to register with the Service is punishable by 
imprisonment for not more than 6 months and a fine of not more than 
$1,000, or both, under section 266(a) of the Act. Section 266(b) of the 
Act provides that an alien who fails to give written notice of a change 
of address may be fined not to exceed $200, or imprisoned for not more 
than 30 days, or both. This section also provides that the alien shall 
be taken into custody and removed from the United States through 
removal proceedings.
    Failure to file a change of address may also put the alien at risk 
of being placed in removal proceedings and ordered removed in absentia 
under section 240(b)(5) of the Act if the alien fails to appear at a 
scheduled hearing.

What Forms Will Be Affected?

    This rule will require amendments to a number of forms, and the 
Service will be implementing this rule by amending each form as soon as 
practicable. Once each form is revised and made available for public 
use, the Service will require that all aliens use the revised version.
    Specifically, the Service intends to place the requisite notices 
and warnings on all relevant forms, including, but not limited to: Form 
AR-11 (Alien's Change of Address Card); Form I-131 (Application for 
Travel Document); Form I-191 (Application for Advance Permission to 
Return to Unrelinquished Domicile); Form I-192 (Application for Advance 
Permission to Enter as Nonimmigrant); Form I-193 (Application for 
Waiver of Passport and/or Visa); Form I-212 (Application for Permission 
to Reapply for Admission Into the United States After Deportation or 
Removal); Form I-290B (Notice of Appeal to the Administrative Appeals 
Unit (AAU)); Form I-360 (Petition for Amerasian, Widow(er), or Special 
Immigrant); Form I-485 (Application to Register Permanent Residence or 
Adjust Status) and supplements (except when used to apply for LIFE 
legalization); Form I-539 (Application to Extend/Change Nonimmigrant 
Status) and supplement A (Filing Instructions for V Nonimmigrant 
Status); Form I-589 (Application for Asylum and Withholding of 
Removal); Form I-601 (Application for Waiver of Grounds of 
Excludability); Form I-602 (Application by Refugee for Waiver on 
Grounds of Excludability); Form I-694 (Notice of Appeal of Decision 
under section 210 or 245A of the Immigration and Nationality Act); Form 
I-730 (Refugee/Asylee Relative Petition); Form I-751 (Petition to 
Remove Conditions on Residence); Form I-765 (Application for Employment 
Authorization); Form I-817 (Application for Family Unity Benefits); 
Form I-821 (Application for Temporary Protected Status); Form I-823 
(Application--Alternative Inspection Services); Form I-824 (Application 
for Action on an Approved Application or Petition); Form I-829 
(Petition by Entrepreneur to Remove Conditions); Form I-855 (ABC Change 
of Address Form); Form I-866 (Application'Checkpoint Pre-enrolled 
Access Lane); Form I-881 (Application for Suspension of Deportation or 
Special Rule Cancellation of Removal); Form I-914 (Application for T 
Nonimmigrant Status); Form N-300 (Application to File Declaration of 
Intention); Form N-400 (Application for Naturalization); Form N-410 
(Motion for Amendment of Petition (application)); Form N-455 
(Application for Transfer of Petition for Naturalization); Form N-470 
(Application to Preserve Residence for Naturalization Purpose); Form N-
600 (Application for Certification of Citizenship); and Form N-644 
(Application for Posthumous Citizenship).

What Are the Consequences of Failure To Make the Acknowledgments 
With the Designated Application Forms?

    Once each benefit form is revised, the mandatory address 
notification and acknowledgments will become a part of the application 
process itself and will be made when the alien signs the application 
form. If the alien does not sign the form, and thus does not make the 
required acknowledgments, the Service will reject the form as 
improperly filed pursuant to 8 CFR 103.2(a)(7)(i).

How Will This Assist Aliens in Acquiring Benefits and Avoiding 
Adverse Consequences?

    This proposed rule will provide a mechanism for ensuring that each 
alien applying for an immigration benefit has actual notice of the 
requirement to provide a change of address. Without a proper address on 
file at all times, an alien cannot respond to requests from the Service 
for additional information or to appear for an interview, or receive 
benefits in a timely fashion. Similarly, without a proper address on 
file at all times, if it becomes necessary to initiate proceedings 
before an immigration judge, the alien will not be able to receive a 
timely notice of the hearing. Although the Service will be able to send 
notice of the proceedings to the most recent address provided by the 
alien, an alien who has changed address and failed to provide a current 
address may fail to receive the notices and, accordingly, could be 
ordered removed in absentia without an opportunity to defend against 
the charges or to seek relief if the alien fails to appear at a 
scheduled hearing. Providing a mechanism that helps ensure that the 
Service has a current address for the alien also helps the alien by 
assuring that he or she will have the opportunity to see that his or 
her rights are adequately protected--including having the opportunity 
to present his or her views before an immigration judge and to seek any 
available relief during removal proceedings.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. This rule adds a new 
requirement that an alien acknowledge, at the time certain forms are 
filed with the Service, that he or she has received notice of the 
obligation to keep the Service informed of his or her current address, 
including any changes of address, and of the consequences that may 
result for failure to do so. This rule does not affect small entities 
as that term is defined in 5 U.S.C. 601(6).

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 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.

[[Page 48821]]

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget for 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, 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

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

Paperwork Reduction Act

    This rule requires the revision of several Service forms to ensure 
that the Service has an accurate address for the alien. The forms being 
revised are public use forms covered under the Paperwork Reduction Act. 
Accordingly, these forms will be submitted to the Office of Management 
and Budget for review and approval in accordance with the Paperwork 
Reduction Act.

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Aliens, Immigration, 
Organization and functions (Government agencies), Reporting and 
recordkeeping requirements.

    Accordingly, the Department of Justice proposes to amend 8 CFR 
chapter I as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 is revised to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 
1229, 1229a, 1252 note, 1252b, 1304, 1305, 1356; 31 U.S.C. 9701; 
E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166, 8 CFR 
part 2.

    2. Add new paragraph (a)(8) to Sec. 103.2 to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

    (a) * * *
    (8) Acknowledgment of consequences of failure to provide current 
address information. (i) Forms published by the Service for use by 
aliens who are applying for an immigration benefit or work 
authorization from the Service, as well as Form AR-11 (Alien's Change 
of Address Card), will contain a mandatory address notification, on the 
face of the form above the alien's signature, by which the alien 
acknowledges having received notice that:
    (A) He or she is required to provide a valid current address to the 
Service, including any change of address within 10 days of the change;
    (B) The Service will use the most recent address provided by the 
alien for all purposes, including for purposes of removal proceedings 
under sections 239 and 240 of the Act should it ever be necessary for 
the Service to initiate removal proceedings;
    (C) If the alien has changed address and failed to provide the new 
address to the Service, the alien will be held responsible for any 
communications sent to the most recent address provided by the alien; 
and
    (D) If the alien fails to appear at any scheduled immigration 
hearing after notice of the hearing was mailed to the most recent 
address provided by the alien, or as otherwise provided by law, the 
alien is subject to being ordered removed in absentia.
    (ii) An alien who submits an application, petition, appeal, motion, 
or other document that includes the mandatory address notification in 
paragraph (a)(8)(i) of this seciton acknowledges that the alien is 
providing an address to the Service for all purposes, including the 
service of a Notice to Appear, if such service becomes necessary, under 
sections 239(a)(1)(F), 239(c), and 240(b)(5) of the Act, and 8 CFR 
3.26.
* * * * *

    Dated: July 19, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-18896 Filed 7-25-02; 8:45 am]
BILLING CODE 4410-10-P




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