Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 9958 [E7-3914]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 72, Number 43 (Tuesday, March 6, 2007)]
[Notices]
[Page 9958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3914]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary


Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the 
Immigration and Nationality Act

AGENCY: Office of the Secretary, DHS.

ACTION: Notice of determination.

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DATES: This determination is effective February 26, 2007.

    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 Sec. 212(d)(3)(B)(i) of 
the Immigration and Nationality Act (``the Act''), considering the 
national security and foreign policy interests deemed relevant in these 
consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall 
not apply with respect to material support provided under duress to a 
terrorist organization as described in subsection 212(a)(3)(B)(vi)(III) 
if warranted by the totality of the circumstances.
    This exercise of authority as a matter of discretion shall apply to 
an alien who satisfies the agency that he:
    (a) Is seeking a benefit or protection under the Act and has been 
determined to be otherwise eligible for the benefit or protection;
    (b) Has undergone and passed relevant background and security 
checks;
    (c) Has fully disclosed, in all relevant applications and 
interviews with U.S. Government representatives and agents, the nature 
and circumstances of each provision of such material support; and
    (d) Poses no danger to the safety and security of the United 
States.
    Implementation of this determination will be made by U.S. 
Citizenship and Immigration Services (USCIS), in consultation with U.S. 
Immigration and Customs Enforcement (ICE). USCIS has discretion to 
determine whether the criteria are met.
    When determining whether the material support was provided under 
duress, the following factors, among others, may be considered: whether 
the applicant reasonably could have avoided, or took steps to avoid, 
providing material support, the severity and type of harm inflicted or 
threatened, to whom the harm was directed, and, in cases of threats 
alone, the perceived imminence of the harm threatened and the perceived 
likelihood that the harm would be inflicted.
    When considering the totality of the circumstances, factors to be 
considered, in addition to the duress-related factors stated above, may 
include, among others: the amount, type and frequency of material 
support provided, the nature of the activities committed by the 
terrorist organization, the alien's awareness of those activities, the 
length of time since material support was provided, the alien's conduct 
since that time, and any other relevant factor.
    I may revoke this exercise of authority 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 shall apply to any subsequent benefit or protection 
application, unless it 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 is not intended to create any 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. This exercise of authority does not affect the continued 
applicability of any other security-related ground of inadmissibility 
in section 212 of the Act, including subsections 212(a)(3)(B)(iv)(I) 
through (V), which continue to render inadmissible those who have 
engaged in terrorist activity as enumerated by those subsections.
    In accordance with Sec. 212(d)(3)(B)(ii) of the Act, 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 aliens described herein and shall not have 
any application with respect to other persons or to other provisions of 
U.S. law.

    Dated: February 26, 2007.
Michael Chertoff,
Secretary of Homeland Security.
[FR Doc. E7-3914 Filed 3-5-07; 8:45 am]
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