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Electronic Code of Federal Regulations

e-CFR data is current as of December 12, 2019

Amendment


28 CFR--PART 16

View Printed Federal Register page 84 FR 64200 in PDF format.

Amendment(s) published November 21, 2019, in 84 FR 64200

Effective Dates: Dec. 23, 2019

2. Amend §16.83 by adding paragraphs (e) and (f) to read as follows:

§16.83   Exemption of the Executive Office for Immigration Review System—limited access.

*   *   *   *   *

(e) The following system of records is exempt from 5 U.S.C. 552a(d): Office of the Chief Administrative Hearing Officer (OCAHO) Case Management System (CMS) (JUSTICE/EOIR-002). This exemption applies only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (2).

(f) Exemption from 5 U.S.C. 552a(d) is justified for the system of records in paragraph (e) of this section for the following reasons:

(1) In limited circumstances, from subsection (d) when access to the records contained in the system of records in paragraph (e) of this section could inform the subject of an ongoing investigation of an actual or potential criminal, civil, or regulatory violation or the existence of that investigation; of the nature and scope of the information and evidence obtained as to the subject's activities; of the identity of confidential sources, witnesses, and law enforcement personnel; and of information that may enable the subject to avoid detection or apprehension. These factors would present a serious impediment to effective law and regulatory enforcement where they prevent the successful completion of the investigation, endanger the physical safety of confidential sources, witnesses, and law enforcement personnel; and/or lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony. In addition, granting access to such information could disclose security-sensitive or confidential business information or information that would constitute an unwarranted invasion of the personal privacy of third parties.

(2) From subsections (d)(2), (3), and (4) because the administrative case files constitute an official record which includes transcripts of administrative proceedings, investigatory materials, evidentiary materials such as exhibits, decisional memoranda, and other case-related papers. Administrative due process could not be achieved by the ex parte “correction” of such materials by the individual who is the subject thereof.

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