Federal Agencies, Agency Memos & Announcements

INS Memo on Amendments to INA by IRFA

7/19/99 AILA Doc. No. 99072080. Asylum & Refugees

U.S. Department of Justice
Immigration and Naturalization Service

HQADN70/21.1.2-P

Office of the Executive Associate Commissioner
425 I Street NW
Washington, DC 20536

JUL 19, 1999

MEMORANDUM FOR REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS

FROM:

Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations

SUBJECT: Amendment to the Immigration and Nationality Act (the Act) adding section 212(a)(2)(G), relating to the inadmissibility of foreign government officials who have engaged in particularly severe violations of religious freedom.

PURPOSE: The purpose of this memorandum is to advise Service Officers of legislation that amended the Act by adding section 212(a)(2)(G), and the applicability of the statute.

DISCUSSION:

On October 27, 1998, the President signed into law the International Religious Freedom Act of 1998 (IRFA), Pub. L. No. 105-292. Section 604 of this law amended section 212(a)(2) of the Act to include a new ground of inadmissibility under paragraph (G), relating to particularly severe violations of religious freedom. Generally, section 212 of the Act sets forth the classes of aliens who are inadmissible to receive visas and are ineligible for admission to the United States.

This amendment expands the class of ineligible aliens to include foreign government officials who have engaged in particularly severe violations of religious freedom.

IRFA created the Office on International Religious Freedom (OIRF) within the Department of State (DOS). The OIRF is headed by an ambassador-at-large for international religious freedom, who is responsible for assisting the Secretary of State in preparing for Congress the annual report on international religious freedom due on September 1st of each year. Among other things, this report will describe the nature and extent of violations of religious freedom committed or tolerated by a government and its officials.

Consular officers will determine if an applicant, within the 24-month period preceding the date of the visa application, served as a foreign government official for a country cited in human rights reports and/or the annual report on religious freedom as having committed particularly severe violations of religious freedom. Consular officers will further determine whether they reasonably believe that the applicant has engaged, during his or her official tenure and within the two years immediately preceding the date of the visa application, in particularly severe violations of religious freedom. Visas will not be issued to foreign government officials who are found to have engaged in particularly severe violations of religious freedom during the 24 months preceding the application for a visa.

If DOS determines that an applicant is inadmissible under section 212(a)(2)(G) of the Act, a lookout record on the alien will be entered into the DOS Consular Lookout and Support System (CLASS). This record will then be reflected in the Interagency Border Inspection System (IBIS). If immigration inspectors at ports-of-entry suspect that an alien may be inadmissible under section 212(a)(2)(G) of the Act, they should access IBIS. If immigration inspectors have any questions regarding the lookout record on an alien in CLASS or IBIS or suspect that an alien may fall under the provisions of section 212(a)(2)(G) of the Act, contact H. Edward Odom, Chief, Legislation and Regulations Division, Visa Services Director, in Department of State Bureau of Consular Affairs at (202) 663-1204. If a Service officer adjudicating an adjustment of status application suspects that an alien may be inadmissible under section 212(a)(2)(G) of the Act, he or she should contact H. Edward Odom in the Department of State Bureau of Consular Affairs at (202) 663-1204 to seek an opinion.

Amendment

The amending language reads as follows:

SEC. 604. INADMISSIBILITY OF FOREIGN GOVERNMENT OFFICIALS WHO HAVE ENGAGED IN PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.

(a) INELIGIBILITY FOR VISAS OR ADMISSION.-Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding the following new subparagraph:

(G) FOREIGN GOVERNMENT OFFICIALS WHO HAVE ENGAGED IN PARTICULARLY SEVERE VIOLATIONS OF RELIGIOUS FREEDOM.-Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time during the preceding 24-month period, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998, and the spouse and children, if any, are inadmissible.

Although IRFA did not amend section 237 of the Act relating to deportability, section 237(a)(1)(A) states:

INADMISSIBLE ALIENS.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

Based upon section 237(a)(1)(A) of the Act, an alien who entered the United States on or after October 27, 1998 is subject to removal if he or she was inadmissible under section 212(a)(2)(G) of the Act.

Definitions

Section 3 of IRFA defines "violations of religious freedom" as violations of the internationally recognized right to freedom of religion and religious belief and practice. These include violations such as arbitrary prohibitions on, restrictions of, or punishment for-

    -assembling for peaceful religious activities such as worship, preaching, and prayer, including arbitrary registration requirements;
    -speaking freely about one's religious beliefs;
    -changing one's religious beliefs and affiliation;
    -possession and distribution of religious literature, including Bibles;
    -raising one's children in the religious teachings and practices of one's choice.

Violations of the internationally recognized right to freedom of religion and religious belief and practice also include the following acts, if committed on account of an individual's religious belief or practice: detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, beating, torture, mutilation, rape, enslavement, murder, and execution.

Section 3 of IRFA defines "particularly severe violations of religious freedom" as systematic, ongoing, egregious violations of religious freedom, including violations such as-

    -torture or cruel, inhuman, or degrading treatment or punishment;
    -prolonged detention without charges;
    -causing the disappearance of persons by the abduction or clandestine detention of those persons; or
    -other flagrant denial of the right to life, liberty, or the security of persons.

Different sections of the Foreign Affairs Manual speak to the definition of "foreign government officials." See 9 FAM §§ 41.22 and 40.32 N8.1 (a). The determination of whether an applicant is an official of a foreign government is dependent on whether the services performed by the alien are themselves of an inherently governmental character. Service officers should make such a determination in consultation with DOS.

Effective Date

Service Officers should apply section 212(a)(2)(G) of the Act to aliens seeking admission to the United States or adjustment of status on or after October 27, 1998.

Points of Contact

If Service Officers have any questions regarding the lookout record on an alien in CLASS or IBIS or suspect that an alien may fall under the provisions of section 212(a)(2)(G) of the Act, contact H. Edward Odom in the Department of State Bureau of Consular Affairs at (202) 6631204. If Service Officers have any questions regarding section 212(a)(2)(G) of the Act, please contact Kevin J. Cummings in HQADN at (202) 305-3175.