[Federal Register Volume 64, Number 183 (Wednesday, September 22, 1999)]
[Notices]
[Pages 51338-51340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24385]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service
[INS No. 1998-99]
RIN 1115-AF50


Advance Notice of Expansion of Expedited Removal to Certain 
Criminal Aliens Held in Federal, State, and Local Jails

AGENCY: Immigratnion and Naturalization Service, Justice.

ACTION: Advance notice with request for comments.

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SUMMARY: This notice advises the public that the Immigration and 
Naturalization Service (Service) intends to apply the expedited removal 
provision of section 235(b)(1) of the Immigration and Nationality Act 
(Act) on a pilot basis to certain criminal aliens being held in three 
correctional facilities in the State of Texas. This action will not 
become effective until the Service evaluates and addresses public 
comments and informs the public by notice in the Federal Register when 
the expedited removal provisions will be implemented. This pilot 
program will last for a period of 180 days, and will be followed with 
an evaluation of the program. The Service believes that implementing 
the expedited removal provisions to person who have been found by a 
Federal judge to be guilty of illegal entry and are serving short 
criminal sentences will result in removal of those criminal aliens 
faster than can be achieved under ordinary removal proceedings. This 
will ensure prompt immigration determinations in those cases and 
consequently will save Service detention space and immigration judge 
and trial attorney resources, while at the same time protecting the 
righ5ts of the individuals affected.

DATES: Comments must be submitted on or before November 22, 1999.

ADDRESSES: Please submit written comments, original and two copies, to 
the Director, Policy Directives and Instructions Branch, Immigration 
and Naturalization Service, 425 I Street NW, Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1998-99 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT:
Isabelle Chewning, Detention and Deportation Officer, Immigration and 
Naturalization Service, 801 I Street NW, Suite 800, Washington, DC 
20536, telephone (202) 616-7797, or Melinda Clark, Detention and 
Deportation Officer, Immigration and Naturalization Service, 425 I 
Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-1986.
SUPPLEMENTARY INFORMATION: 

What is the expedited removal program?

    Under section 235(b)(1) of the Immigration and Nationality Act 
(Act), as amended by the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), certain aliens who are 
inadmissible to the United States under sections 212(a) (6) (C) or 
212(a) (7) of the Act are not entitled to a formal removal hearing 
before an immigration judge under section 240 of the Act. Instead, 
these aliens are subject to an expedited removal order issued by an 
immigration officer. Sections 212(a) (6) (C) and 212(a) (7) are the 
grounds of inadmissibility which cover aliens who seek or have sought 
to procure a visa, other documentation, or admission to the United 
States or other benefits under the Act by fraud or misrepresentation or 
who arrive without proper entry documents.
    On March 6, 1997, the Department of Justice issued implementing 
regulations which apply the expedited removal provisions of section 
235(b)(1) of the Act to certain aliens arriving in the United States on 
or after April 1, 1997. (See 62 FR 10312).

To whom Will the Section 235(b) (1) Expedited Removal Provisions Be 
Applied?

    Section 235(b) (1) (A) (iii) of the Act permits the Attorney 
General, in her sole and unreviewable discretion, to designate certain 
other aliens to whom the expedited removal provisions may be applied 
even though they are not arriving in the United States. Specifically, 
the Attorney General may apply the expedited removal provisions to any 
or all aliens who have not been admitted or paroled into the Untied 
States and who have been physically present for less than 2 years prior 
to the date of the determination of inadmissibility. By publication of 
this notice, the Attorney General is exercising her discretionary 
authority to apply the provisions of the expedited removal to certain 
alien who:

[[Page 51339]]

    (i) Have been convicted of illegal entry into the United States 
under 8 U.S.C. 1325(a) (1) or (2) (section 275 of the Act) if the court 
record establishes the time, place, and manner of entry;
    (ii) Have not been admitted or paroled into the United States and 
who have been physically present for less than 2 years prior to the 
date of the determination of inadmissibility; and
    (iii) Are serving criminal sentences in the Big Spring Correction 
Center, Eden Detention Center, or Reeves County Bureau of Prisons 
Contract Facility.

Under What Authority Is the Immigration and Naturalization Service 
Taking This Action?

    In addition to the statutory authority contained in section 
235(b)(1)(A)(iii) of the Act, the expedited removal provisions 
contained in the Service's regulations at 8 CFR 235.3(b)(1)(ii) 
provides as follows:
    (ii) As specifically designated by the Commissioner, aliens who 
arrive in, attempt to enter, or have entered the United States without 
having been admitted or paroled following inspection by an immigration 
officer at a designated port-of-entry, and who have not established to 
the satisfaction of the immigration officer that they have been 
physically present in the United States continuously for the 2-year 
period immediately prior to the date of determination of 
inadmissibility. The Commission shall have the sole discretion to apply 
the provisions of section 235(b)(1) of the Act, at any time, to any 
class of aliens described in this section. The Commissioner's 
designation shall become effective upon publication of a notice in the 
Federal Register. However, if the Commissioner determines, in the 
exercise of discretion, that the delay caused by publication would 
adversely affect the interests of the United States or the effective 
enforcement of the immigration laws, the Commissioner's designation 
shall become effective immediately upon issuance, and shall be 
published in the Federal Register as soon as practicable thereafter. 
When these provisions are in effect for aliens who enter without 
inspection, the burden of proof rests with the alien to affirmatively 
show that he or she has the required continuous physical presence in 
the United States. Any absence from the United States shall serve to 
break the period of continuous physical presence. An alien who was not 
inspected and admitted or paroled into the United States but who 
establishes that he or she has been continuously physically present in 
the United States for the 2-year period immediately prior to the date 
of determination of inadmissibility shall be detained in accordance 
with section 235(b)(2) of the Act for a proceeding under section 240 of 
the Act.
    Because the regulation provides the authority to apply expedited 
removal to aliens affected by this pilot program, the Service is not 
amending its regulation, but it is announcing the pilot program through 
this notice and a subsequent notice after receiving public comment.

Why Is This Action Being Taken?

    The Service identifies and processes thousands of criminal aliens 
for removal each year while they are incarcerated in Federal, State, 
and local jails and correctional facilities. There are several programs 
and methods in place to accomplish this task. Most notable is the 
Institutional Removal Program (IRP), whereby immigration officers are 
stationed at specific Federal and State correctional facilities to 
process aliens for removal proceedings, which are conducted at that 
site by Immigration Judges before their release from criminal custody. 
If found removable, the aliens can then be removed from the country 
immediately upon completion of their sentence, without the Service 
incurring additional detention costs to house them during their removal 
proceedings. Many of the aliens incarcerated in certain IRP facilities 
have been convicted of illegal entry under 8 U.S.C. 1325 (section 275 
of the Act), often initiated after the alien has committed multiple 
illegal entries. Many are given relatively short sentences that make it 
difficult to complete removal proceedings before an immigration judge 
prior to the completion of their sentences. Since these aliens have 
been convicted of illegal entry, the court records and documentation in 
the file will clearly establish the time, place, and manner of entry, 
thereby establishing eligibility for expedited removal. Under this 
pilot program, therefore, expedited removal will only be applied where 
the Federal Courts have affirmatively determined that the alien falls 
within the illegal entry criteria for expedited removal.

Will the Program Be Expanded to all Federal, State, and Local Jails 
and Correctional Facilities?

    No. This pilot program will be limited to the following IRP 
facilities: Big Spring Correction Center, Eden Detention Center, and 
Reeves County Bureau of Prisons Contract Facility. This limitation will 
permit the Service to provide thorough training to all officers 
involved in the process, to monitor the procedures being followed, and 
to evaluate the effectiveness of the pilot program for possible 
application to other IRP facilities.

Will Expedited Removal Be Applied to all Criminal Aliens Detained 
at These Sites?

    No. The Service intends to apply the expedited removal provisions 
only to those aliens convicted of illegal entry who have not previously 
been removed, provided the court records explicitly established the 
time, place, and manner of entry, and that the alien has not been 
admitted or paroled into the United States and has not been physically 
present continuously for the 2-year period immediately prior to the 
date of the determination of inadmissibility.
    Those aliens who have reentered the United States illegally after 
having been previously ordered removed from the United States will 
continue to be subject to reinstatement of the prior order of removal 
under section 241(a)(5) of the Act. The Service will also continue to 
apply the existing procedures under section 238 of the Act for removal 
of most aliens convicted of an aggravated felony.

What Does the Service Expect To Achieve Through This Pilot Program?

    The Service expects the pilot program to demonstrate a greater 
efficiency in processing criminal aliens who meet the statutory 
criteria for expedited removal, but who may not be eligible for other 
existing programs or could not be as promptly removed under the IRP. In 
addition, many of the relatively routine cases that fall within the 
statutory criteria for expedited removal but are currently being heard 
by immigration judges in the IRP could be processed under expedited 
removal, and the administrative resources and detention costs currently 
expended on these cases could be applied to other IRP cases or to other 
detained cases. The increased volume of illegal entries and the 
increasing number of criminal aliens being apprehended and identified 
have resulted in a critical shortage of Service detention space in 
recent months. This shortage necessitates that the Service explore 
further appropriate means to achieve the most efficient use of limited 
Service detention space. The Service is confident that the experience 
it has gained since the implementation of the expedited removal program 
at ports-of-entry on April 1, 1997, will enable it to successfully 
pilot a very limited expansion of the program in a manner that is both 
effective and fair.

[[Page 51340]]

How Will the Service Ensure That an Alien Placed in the Expedited 
Removal Program Will Not Be Subjected to Persecution or Torture 
Upon Removal From the United States?

    Service regulations provide that any alien who indicates either an 
intention to apply for asylum, withholding of removal under section 
241(b)(3) of the Act, or protection under the Convention Against 
Torture, or expresses a fear of persecution, torture, or other harm 
shall be referred for an interview by an asylum officer to determine 
whether the alien has a credible fear. The Form I-867A and I-867B 
currently used by the officers who process aliens under the expedited 
removal program, in accordance with the statutory requirement at 
section 235(b)(1)(B)(iv) of the Act, carefully explains to all aliens 
in expedited removal proceedings the alien's right to a credible fear 
interview. The forms also require that the officer determine whether 
the alien has any reason to fear harm if returned to his or her 
country. This form will also be used for aliens subject to expedited 
removal under this pilot program. Additionally the training to be 
provided to other officers who will administer the program will 
emphasize the need to be alert for any verbal or non-verbal indications 
that the alien may be afraid to return to his or her homeland.
    Once an alien is referred to an asylum officer for a credible fear 
interview, he or she has a right to consultation with a person of the 
alien's choosing, and a right to review by an immigration judge of any 
negative credible fear determination. Aliens found to have a credible 
fear are then placed into ordinary removal proceedings before an 
immigration judge where they may apply for asylum and withholding of 
removal.

How Does the Effect of an Expedited Removal Order Issued by an 
Immigration Officer Differ From the Effect of a Final Removal Order 
Issued by an Immigration Judge Under Section 240 of the Act?

    Regardless of whether the final order is issued by an immigration 
judge or the Board of Immigration Appeals under section 240 of the Act 
or by an immigration officer under section 235(b)(1) of the Act, the 
consequences are the same. The alien is prohibited from returning to 
the United States without advance permission for the period of time 
specified in section 212(a)(9) of the Act. Where proceedings are 
initiated other than upon the alien's arrival in the United States, the 
alien ordered removed is inadmissible for a period of 10 years (or 20 
years in the case of a second or subsequent removal). If the alien 
should illegally reenter the United States, he or she is subject to 
reinstatement of removal under section 241(a)(5) of the Act and to 
civil and criminal penalties contained in the Act and in other Federal 
statutes.

How Will the Service Evaluate the Integrity, Productivity and 
Effectiveness of This Program?

    The Service intends to monitor the process carefully and will 
conduct an evaluation of the program upon the termination of the pilot 
program after 180 days have elapsed. The Service will regularly conduct 
reviews of a sampling of expedited removal cases processed at the 
selected facilities. The files will be reviewed to ensure that all 
procedures are properly followed, especially those procedures designed 
to protect the rights of the aliens involved. This is the same process 
used by the Service for monitoring port-of-entry expedited removal 
cases. The Service will also conduct site visits to conduct follow-up 
training and on-site monitoring. The Service will also monitor 
statistics pertaining to the number of aliens removed through this 
program.

Why Is the Service Soliciting Public Comments on This Notice?

    While not required under the Administrative Procedures Act, the 
Service is interested in receiving comments from the public on all 
aspects of the expedited removal program, but especially on the 
effectiveness of the program, problems envisioned by the commenters, 
and suggestions on how to address those problems. We believe that, by 
maintaining a dialogue with interested parties, the Service can ensure 
that the program remains effective in combating and deterring illegal 
entry whole at the same time protecting the rights of the individuals 
affected.

When Will These Actions Begin and How Long Will It Last?

    After evaluating and addressing the public comments, the Service 
will inform the public by notice in the Federal Register 30 days prior 
to the pilot program's implementation. The program will remain in 
effect for 180 days.

    Dated: September 14, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-24385 Filed 9-21-99; 8:45 am]
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