Federal Register: April 22, 2002 (Volume 67, Number 77)
Rules and Regulations
Page 19508-19511
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 236 and 241
[INS No. 2203-02]
RIN 1115-AG67
Release of Information Regarding Immigration and Naturalization
Service Detainees in Non-Federal Facilities
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule governs the public disclosure by any state
or local government entity or by any privately operated facility of the
name or other information relating to any immigration detainee being
housed or otherwise maintained or provided service on behalf of the
Immigration and Naturalization Service (INS or Service). This rule will
establish a uniform policy on the public release of information on
Service detainees and ensure the Service's ability to support the law
enforcement and national security needs of the United States.
DATES: Effective date: This rule is effective April 17, 2002.
Comment date: Written comments must be submitted on or before June
21, 2002.
ADDRESSES: Please submit written comments to the Director, Regulations
and Forms Services Division, Immigration and Naturalization Service,
425 I Street, NW, Room 4034, Washington, DC, 20536. To ensure proper
handling, please reference INS No. 2203-02 on your correspondence.
Comments may also be submitted electronically to the Service at
insregs@usdoj.gov. When submitting comments electronically, please
include INS No. 2203-02 in the subject heading. Comments are available
for public inspection at this location by calling (202) 514-3048 to
arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Dea Carpenter, Deputy General Counsel,
Office of the General Counsel, Immigration and Naturalization Service,
425 I Street NW, Room 6100, Washington, DC 20536, telephone (202) 514-
2895.
SUPPLEMENTARY INFORMATION:
This interim rule governs the release of the identity or other
information relating to Service detainees by non-federal institutions.
An alien may be detained pursuant to an administrative
[[Page 19509]]
order of arrest in connection with removal proceedings. Section 236(a)
of the Immigration and Nationality Act (Act), 8 U.S.C. 1226(a),
authorizes the Attorney General to detain aliens pending a
determination of whether the alien should be removed from the United
States. See 8 CFR 287.7. Section 241 of the Act, 8 U.S.C. 1231,
authorizes the Attorney General to detain aliens ordered removed. The
Service may detain such aliens in a Federal detention facility, or may
arrange for the alien to be housed by a state or local government
entity or by a privately operated detention facility ("non-Federal
providers") under contract with the Service or otherwise. However,
even under such an arrangement, the detainee remains in the custody of,
and subject to the authority and management of, the Service.
Information relating to such detainees also remains subject to the
authority and management of the Service.
This rule clarifies that non-Federal providers shall not release
information relating to those detainees, and that requests for public
disclosure of information relating to Service detainees, including
Service detainees temporarily being held by non-Federal providers on
behalf of the Service, will be directed to the Service. The rule bars
release of such information by non-Federal providers in order to
preserve a uniform policy on the release of such information.
Accordingly, any disclosure of such records will be made by the Service
and will be governed by the provisions of applicable Federal law,
regulations, and Executive Orders. This rule does not address or alter
in any way the Service's policies regarding its release of information
concerning detainees; these policies remain unchanged.
This regulation is within the scope of the authority delegated to
the Attorney General under the Act. Section 103(a)(1) of the Act, 8
U.S.C. 1103(a)(1), charges the Attorney General "with the
administration and enforcement" of "all * * * laws relating to the
immigration and nationalization of aliens," and section 103(a)(3) of
the Act, 8 U.S.C. 1103(a)(3), empowers him to "establish such
regulations * * * as he deems necessary for carrying out his
authority." The Attorney General, in turn, has delegated broad
authority to the Commissioner to implement the immigration laws,
including the authority to issue implementing regulations. 8 CFR 2.1.
This rule, governing the release of information concerning the
identity or other information relating to Service detainees housed in
non-Federal facilities, is both necessary and proper to carrying out
the Attorney General's detention authority under sections 236 and 241
of the Act, 8 U.S.C. 1226 and 1231; to "control, direct[], and
supervis[e]" all of the "files and records" of the Service under
section 103(a)(2) of the Act, 8 U.S.C. 1103(a)(2); and to arrange by
contract with state and local governments "for necessary clothing,
medical care, necessary guard hire, and the housing, care, and security
of persons detained by the Service pursuant to Federal law," 8 U.S.C.
1103(a)(9)(A)), as well as his authority under 18 U.S.C. 4002,
4013(a)(4).
The Supreme Court has recognized the primacy of Federal law in
matters related to aliens and immigration. Toll v. Moreno, 458 U.S. 1,
10 (1980) (emphasizing the "preeminent role of the Federal Government
with respect to the regulation of aliens with our borders" and noting
the numerous constitutional sources of that authority); DeCanas v.
Bica, 424 U.S. 351, 355 (1976) ("Power to regulate immigration is
unquestionably exclusively a federal power."); Examining Bd. of
Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 605
(1976) (acknowledging "the Federal Government's primary power and
responsibility for the regulation of immigration"); see also INS v.
Aguirre-Aguirre, 526 U.S. 422, 424, 425 (1999) ("judicial deference to
the Executive Branch is especially appropriate in the immigration
context"). In some instances, the release of information about a
particular detainee or group of detainees could have a substantial
adverse impact on security matters as well as the detainee's privacy.
For example, specific aliens detained under administrative arrest
warrants may possess significant foreign intelligence or
counterintelligence information that is sought by the United States.
The disclosure of those aliens' detention and the location of their
detention could invite foreign intelligence activity contrary to the
best interests of the United States. Similarly, the premature release
of the identity or other information relating to those aliens could
jeopardize sources and methods of the intelligence community. Release
of information about a specific detainee or group of detainees could
also have a substantial adverse impact on ongoing investigations being
conducted by federal law enforcement agencies in conjunction with the
Service. Even though an individual detainee may choose to disclose his
own identity or some information about himself, the release by
officials housing detainees of a list of detainees or other information
about them could give a terrorist organization or other group a vital
roadmap about the course and progress of an investigation. In certain
instances, the detention of a specific alien could alert that alien's
coconspirators to the extent of the federal investigation and the
imminence of their own detention, thus provoking flight to avoid
detention, prosecution and removal from the United States. Premature
release of the identity of or information relating to a specific alien
in detention could reasonably be expected to disclose the identity of a
confidential source and techniques or procedures for law enforcement
investigations or prosecution. See 5 U.S.C. 552(b)(7)(D), (E).
Officials of the non-Federal providers may not possess information
regarding the progress of Federal investigations and cannot make
judgments about the risk of release of information relating to Service
detainees.
This intelligence "mosaic" dilemma has been well recognized by
the courts in concluding both that they are ill suited to second-guess
the Executive Branch's determination and that seemingly innocuous
production should not be made.
It requires little reflection to understand that the business of
foreign intelligence gathering in this age of computer technology is
more akin to the construction of a mosaic than it is to the management
of a cloak and dagger affair. Thousands of pieces of seemingly
innocuous information can be analyzed and fitted into place to reveal
with startling clarity how the unseen whole must operate. As the Fourth
Circuit Court of Appeals has observed:
The significance of one item of information may frequently depend
upon knowledge of many other items of information. What may seem
trivial to the uninformed, may appear of great moment to one who has a
broad view of the scene and may put the questioned item of information
in its proper context. The courts, of course are ill-equipped to become
sufficiently steeped in foreign intelligence matters to serve
effectively in the review of secrecy classifications in that area.
United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert.
denied, 409 U.S. 1063 (1972).
Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978). See also e.g., Kasza
v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (quoting Halkin); J.
Roderick MacArthur Foundation v. Federal Bureau of Investigation, 102
F.3d 600, 604 (D.C. Cir. 1996) ("As we have said before,
"intelligence gathering is akin to the
[[Page 19510]]
construction of a mosaic."" (citation omitted)).
In view of the primacy of Federal law in this area, it would make
little sense for the release of potentially sensitive information
concerning Service detainees to be subject to the vagaries of the laws
of the various States within which those detainees are housed and
maintained, by specific arrangement with the Service, for the United
States. Application of State law in this area has the potential to
threaten the Attorney General's mission. State law, unlike Federal law,
may not be well adapted to the special national security, law
enforcement, and privacy concerns implicated by the release of this
type of information. This rule provides for a uniform Federal approach
to ensure the consistent treatment of all Service detainees, including
those being detained by non-Federal providers on behalf of the Service.
The rule also reflects the nature and origin of the information
concerning the immigration detainees. When a non-Federal provider
assumes responsibility for housing a detainee, it does so as an agent
of the Federal government. The only reason that the non-Federal
provider knows the detainees' names or other related information about
them is because the Federal government has made such information
available pursuant to that agency relationship. The non-Federal
provider, as agent, should not release the principal's potentially
sensitive information without its consent, particularly where doing so
may be inconsistent with the principal's interests. Instead, the
Service as principal should determine whether and under what
circumstances such information should be released consistent with
federal law.
This interim rule supersedes State or local law relating to the
release of such information. New York v. FERC, __ U.S. __, 122 S.Ct.
1012 (March 4, 2002, No. 00-568); Fidelity Federal Savings and Loan
Assoc. v. De le Cuesta, 458 U.S. 141, 153-54 (1982); Louisiana Pub.
Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986); Boyle v. United
Technologies Corp., 487 U.S. 500, 504-507, 512 (1988).
This rule is similar to the existing regulations of the Federal
Bureau of Prisons ("BOP"), 28 CFR 513.33--513.36, which provide that
information regarding BOP inmates shall only be disclosed pursuant to
Federal law. Section 513.34(b) of BOP's regulations specifically
provides that "Lists of Bureau inmates shall not be disclosed." See
Brady-Lunny v. Massey, 185 F. Supp. 2d 928 (C.D. Ill. 2002). Although
the BOP rule relating to contractors, 28 CFR 513.36(b), provides that
the requirements relating to the privacy of inmate information are to
be established and enforced by contract, this rule governing the
disclosure of information pertaining to Service detainees specifically
prohibits the non-Federal providers from disclosing such information
themselves. Disclosure or release of the identity of Service detainees
or other information relating to Service detainees information is
solely the responsibility of the Service.
The rule specifically provides that it shall apply to all pending
and future requests for disclosure of or proceedings concerning the
release of the name, or related information, of detainees held on
behalf of the Service, including requests that are the subject of
proceedings or litigation as of the effective date of this rule. See
Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 739-740 (1996);
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); United States v.
Morton, 467 U.S. 822, 835-836 n. 21 (1984); United States v. Schooner
Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801).
This rule does not alter the ability of a detainee to seek legal
counsel under 8 U.S.C. 1362. A detainee has the privilege of seeking
legal counsel or representation by an accredited representative at no
expense to the United States. This rule imposes no restrictions on the
ability of Service detainees to identify themselves or to communicate
with others. It only prevents non-Federal providers from making public
disclosures of information pertaining to the Service detainees that the
non-Federal provider is housing on behalf of the Service. Such requests
for public disclosure of information pertaining to Service detainees
should be directed to the Service.
Finally, this rule also changes Service regulations at Part 241,
"Apprehension and Detention of Aliens Ordered Removed," to make clear
that the identity or other information relating to post-order detainees
in non-federal institutions are governed by the same standards and
principles as set forth in this rule.
Request for Comments
The Service is seeking public comments regarding this interim rule.
The Service requests that parties interested in commenting on the
provisions contained within this rule do so on or before June 21, 2002,
as the Service will not extend the comment period.
Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
"good cause" exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reason and necessity for the immediate promulgation of this rule are as
follows: Service detainees are often housed, maintained, or provided
with service by non-Federal providers. Disclosure of the identities or
related information about certain detainees could reveal investigative
methods, sources, and witnesses. The detainee could be subjected to
intimidation or harm, thereby discouraging or preventing him or her
from supplying valuable information or leads now or in the future.
Disclosure of a detainee's identity or information related to the
detainee could deter these individuals from cooperating with the
Department of Justice now or after they are released from custody for
fear of retaliation by terrorist organizations against them or their
family members and associates. Disclosure could reveal important
information about the direction, progress, focus and scope of
investigations arising out of the attack on September 11, 2001, and
thereby assist terrorist organizations in counteracting investigative
efforts of the United States. Therefore, the actual identity of a
detainee and information related to such a detainee must be managed by
the Service.
In order to safeguard these important interests, the Service must
maintain control of the release of information pertaining to the
identity of or other information related to Service detainees,
including information in the control of persons or entities acting on
behalf of the Service. In light of the national emergency declared by
the President on September 14, 2001, in Proclamation 7453, with respect
to the terrorist attacks of September 11, 2001, and the continuing
threat by terrorists to the security of the United States, and the need
immediately to control identifying or other information pertaining to
Service detainees, there is good cause under 5 U.S.C. 553(b) and (d)
for dispensing with the requirements of prior notice and to make this
rule effective upon April 17, 2002.
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 this rule
will not have a significant economic impact
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on a substantial number of small entities. This rule applies only to
release of information about Service detainees being housed or
maintained in a state or local government entity or a privately
operated detention facility. It does not have any adverse impact on
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 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 is 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. 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. This rule merely pertains to the public
disclosure of information concerning Service detainees housed,
maintained or otherwise served in state or local government or
privately operated detention facilities under any contract or other
agreement with the Service. In effect, the rule will relieve state or
local government entities of responsibility for the public release of
information relating to any immigration detainee being housed or
otherwise maintained or provided service on behalf of the Service.
Instead, the rule reserves that responsibility to the Service with
regard to all Service detainees. 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 set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 241
Administrative practice and procedure, Aliens, Immigration.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
1. The authority citation for part 236 is revised 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.
2. Section 236.6 is added to read as follows:
Sec. 236.6 Information regarding detainees.
No person, including any state or local government entity or any
privately operated detention facility, that houses, maintains, provides
services to, or otherwise holds any detainee on behalf of the Service
(whether by contract or otherwise), and no other person who by virtue
of any official or contractual relationship with such person obtains
information relating to any detainee, shall disclose or otherwise
permit to be made public the name of, or other information relating to,
such detainee. Such information shall be under the control of the
Service and shall be subject to public disclosure only pursuant to the
provisions of applicable federal laws, regulations and executive
orders. Insofar as any documents or other records contain such
information, such documents shall not be public records. This section
applies to all persons and information identified or described in it,
regardless of when such persons obtained such information, and applies
to all requests for public disclosure of such information, including
requests that are the subject of proceedings pending as of April 17,
2002.
PART 241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
3. The authority citation for part 241 is revised 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.
4. Section 241.15 is added to read as follows:
Sec. 241.15 Information regarding detainees.
Disclosure of information relating to detainees shall be governed
by the provisions of Sec. 236.6 of this chapter.
Dated: April 17, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-9863 Filed 4-18-02; 2:59 pm]
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