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  • News: DHS Issues Statement On Exercise Of Authority Under INA

    [Federal Register Volume 77, Number 160 (Friday, August 17, 2012)]
    [Notices]
    [Pages 49821-49822]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2012-20278]


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

    DEPARTMENT OF HOMELAND SECURITY

    Office of the Secretary


    Exercise of Authority Under the Immigration and Nationality Act

    AGENCY: Office of the Secretary, DHS.

    ACTION: Notice of determination.

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

    Authority: 8 U.S.C. 1182(d)(3)(B)(i).

    Following consultations with the Secretary of State and the
    Attorney General, I hereby conclude, as a matter of discretion in
    accordance with the authority granted to me by section 212(d)(3)(B)(i)
    of the Immigration and Nationality Act (INA), 8 U.S.C.
    1182(d)(3)(B)(i), as amended, as well as the foreign policy and
    national security interests deemed relevant in these consultations,
    that paragraphs (iv)(IV), (iv)(V), (iv)(VI), and (i)(VIII) of section
    212(a)(3)(B) of the INA, 8 U.S.C. 1182(a)(3)(B), shall not apply with
    respect to an alien not otherwise covered by the automatic relief
    provisions of section 691(b) of the Consolidated Appropriations Act,
    2008 or by a more specific Exercise of Authority under section
    212(d)(3)(B)(i) of the INA, 8 U.S.C. 1182(d)(3)(B)(i), who meets the
    specifications of paragraphs (a) through (d) of this determination.
    (a) Alien Qualification: To qualify under this determination, an
    alien must have:
    (1) Solicited funds or other things of value for;
    (2) Solicited any individual for membership in;
    (3) Provided material support to; or
    (4) Received military-type training from, or on behalf of, an
    organization described in paragraph (b).
    (b) Organization Qualification. An organization meets the
    specifications of paragraph (a) of this determination if, at any time
    during the alien's activities discussed in paragraph (a), it was a
    terrorist organization as described in subsection
    212(a)(3)(B)(vi)(III), 8 U.S.C. 1182(a)(3)(B)(vi)(III), insofar as that
    organization:
    (1) Is not identified in either Executive Order 13224, as amended,
    or otherwise designated by the Secretary of State or the Secretary of
    the Treasury pursuant to the Specially Designated Nationals List
    (SDNL), or in lists established by United Nations Security Council
    Committee pursuant to Resolutions 1267 (1999) or 1988 (2011) concerning
    Al-Qaida and the Taliban and associated individuals and entities; and
    (2) Has at no time targeted U.S. interests or persons, including
    planned or attempted attacks on U.S. interests or persons; engaged in a
    pattern or practice of torture, as defined in 18 U.S.C. 2441(d)(1)(A),
    genocide, as described in 18 U.S.C. 1091(a), or the use of child
    soldiers, as described in 18 U.S.C. 2242; or been designated a
    terrorist organization as described in subsections 212(a)(3)(B)(vi)(I)
    or (II) of the INA, 8 U.S.C. 1182(a)(3)(B)(vi)(I) or (II).
    (c) Additional Qualifications. To meet the requirements of this
    determination, the alien must also meet the following specifications:
    (1) On or before the date of this Exercise of Authority, was
    admitted as a refugee or granted asylum, temporary protected status, or
    adjustment of status under the Nicaraguan Adjustment and Central
    American Relief Act (NACARA) or the Haitian Refugee Immigration
    Fairness Act (HRIFA), or granted a similar immigration benefit other
    than a non-immigrant visa; or
    (2) Is the beneficiary of an I-730 Refugee/Asylee Relative Petition
    filed at any time by such an asylee or refugee.
    (d) Evidentiary Requirements. An alien must satisfy the relevant
    agency authority that the alien:
    (1) Is seeking a benefit or protection under the INA and has been
    determined to be otherwise eligible for the benefit or protection;
    (2) Has undergone and passed all relevant background and security
    checks;
    (3) Has fully disclosed, to the best of his or her knowledge, in
    all relevant applications and interviews with U.S. government
    representatives and agents, the nature and circumstances of each
    instance of solicitation, material support, and military-type training,
    and any other activity or association falling within the scope of
    section 212(a)(3)(B) of the INA, 8 U.S.C. 1182(a)(3)(B);
    (4) Has not knowingly provided material support to terrorist
    activities that targeted noncombatant persons, U.S. citizens, or U.S.
    interests;
    (5) Has not received training that itself poses a risk to the
    United States or United States interests (e.g., training on production
    or use of a weapon of mass destruction, as defined by 18 U.S.C.

    [[Page 49822]]

    Section 2332a(c)(2), torture, or espionage);
    (6) Poses no danger to the safety and security of the United
    States;
    (7) Is not in removal proceedings or subject to a final order of
    removal, unless the alien is the beneficiary of an I-730 Refugee/Asylee
    Relative Petition; and
    (8) Warrants an exemption from the relevant inadmissibility
    provision(s) in the totality of the circumstances.
    Implementation of this determination will be made by U.S.
    Citizenship and Immigration Services (USCIS), which shall ascertain, to
    its satisfaction and in its discretion, that the particular applicant
    meets each of the criteria set forth above.
    When considering the totality of the circumstances, factors to be
    considered may include, among others: The nature of the activities
    committed by the terrorist organization, including the extent to which
    the activities have targeted noncombatant persons; the alien's
    awareness of those activities; the amount, type, and frequency of
    material support or solicitation provided; the length and nature of
    military-type training provided; the length of time since material
    support or solicitation was provided, or military-type training was
    received, and the alien's conduct since that time; and any other
    relevant factor.
    This exercise of authority may be revoked as a matter of discretion
    and without notice at any time, with respect to any and all persons
    subject to it. Any determination made under this exercise of authority
    as set out above can inform but shall not control a decision regarding
    any subsequent benefit or protection application, unless such exercise
    of authority has been revoked.
    This exercise of authority shall not be construed to prejudice, in
    any way, the ability of the U.S. government to commence subsequent
    criminal or civil proceedings in accordance with U.S. law involving any
    beneficiary of this exercise of authority (or any other person).
    This exercise of authority creates no substantive or procedural
    right or benefit that is legally enforceable by any party against the
    United States or its agencies or officers or any other person.
    In accordance with section 212(d)(3)(B)(ii) of the INA, 8 U.S.C.
    1182(d)(3)(B)(ii), a report on the aliens to whom this exercise of
    authority is applied, on the basis of case-by-case decisions by the
    U.S. Department of Homeland Security, shall be provided to the
    specified congressional committees not later than 90 days after the end
    of the fiscal year.
    This determination is based on an assessment related to the
    national security and foreign policy interests of the United States as
    they apply to the particular persons described herein and shall not
    have any application with respect to other persons or to other
    provisions of U.S. law.

    Dated: August 10, 2012.
    Janet Napolitano,
    Secretary of Homeland Security.
    [FR Doc. 2012-20278 Filed 8-16-12; 8:45 am]
    BILLING CODE 9110-9M-P
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