[Federal Register Volume 69, Number 154 (Wednesday, August 11, 2004)]
[Notices]
[Pages 48877-48881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18469]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection


Designating Aliens For Expedited Removal

AGENCY: Bureau of Customs and Border Protection, DHS.

ACTION: Notice.

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SUMMARY: This notice authorizes the Department of Homeland Security to 
place in expedited removal proceedings any or all members of the 
following class of aliens: Aliens determined to be inadmissible under 
sections 212(a)(6)(C) or (7) of the Immigration and Nationality Act who 
are present in the U.S. without having been admitted or paroled 
following inspection by an immigration officer at a designated port-of-
entry, who are encountered by an immigration officer within 100 air 
miles of the U.S. international land border, and who have not 
established to the satisfaction of an immigration officer that they 
have been physically present in the U.S. continuously for the fourteen-
day (14-day) period immediately prior to the date of encounter. DHS 
believes that exercising its statutory authority to place these 
individuals in expedited removal proceedings will enhance national 
security and public safety by facilitating prompt immigration 
determinations, enabling DHS to deal more effectively with the large 
volume of persons seeking illegal entry, and ensure removal from the 
country of those not granted relief, while at the same time protecting 
the rights of the individuals affected.

[[Page 48878]]


DATES: This notice is effective on August 11, 2004.

ADDRESSES: Please submit written comments to: Regulations Branch, 
Office of Regulations and Rulings, Bureau of Customs and Border 
Protection, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. See 
SUPPLEMENTARY INFORMATION section for more details on submission of 
comments.

FOR FURTHER INFORMATION CONTACT: Dana E. Graydon, Acting Associate 
Chief, Office of Border Patrol, U.S. Customs and Border Protection,1300 
Pennsylvania Ave., NW., Suite 6.5-E, Washington, DC 20229, 
[email protected], 202-344-3153.

SUPPLEMENTARY INFORMATION: Please submit written comments, original and 
two copies, to the address listed above on or before after October 12, 
2004. Submitted comments may be inspected at the Office of Regulations 
and Rulings, Bureau of Customs and Border Protection, 799 9th Street, 
NW., Washington, DC, during regular business hours. Arrangements to 
inspect submitted comments should be made in advance by calling Mr. 
Joseph Clark at (202) 572-8768.
    Section 302 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110 
Stat. 3009-546, amended section 235(b) of the Immigration and 
Nationality Act (``Act''), 8 U.S.C. 1225(b), to authorize the Attorney 
General (now the Secretary of Homeland Security as designated under the 
Homeland Security Act of 2002) to remove, without a hearing before an 
immigration judge, aliens arriving in the U.S. who are inadmissible 
under sections 212(a)(6)(C) or 212(a)(7) of the Act, 8 U.S.C. 
1182(a)(6)(C) and 1182(a)(7). Under section 235(b)(1) of the Act, 8 
U.S.C. 1225(b)(1), expedited removal proceedings may be applied to two 
categories of aliens. First, section 235(b)(1)(A)(i) of the Act, 8 
U.S.C. 1225(b)(1)(A)(i), permits expedited removal proceedings for 
aliens who are ``arriving in the United States.'' ``Arriving aliens'' 
are defined by regulation to mean ``an applicant for admission coming 
or attempting to come into the United States at a port-of-entry, or an 
alien seeking transit through the United States at a port-of-entry, or 
an alien interdicted in international waters and brought into the 
United States by any means whether or not to a designated port-of-
entry.'' (8 CFR 1.1(q)). Cuban citizens who arrive at U.S. ports-of-
entry by aircraft are exempted from this first category of aliens 
subject to expedited removal under section 235(b)(1)(F) of the Act, 8 
U.S.C. 1225(b)(1)(F). Second, section 235(b)(1)(A)(iii) of the Act, 8 
U.S.C. 1225(b)(1)(A)(iii), permits the Attorney General (now the 
Secretary of Homeland Security), in his or her sole and unreviewable 
discretion, to designate certain other aliens to whom the expedited 
removal provisions may be applied. Section 235(b)(1)(A)(iii), 8 U.S.C. 
1225(b)(1)(A)(iii), authorizes the Secretary to apply (by designation) 
expedited removal proceedings to aliens who arrive in, attempt to 
enter, or have entered the U.S. 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 U.S. 
continuously for the two-year period immediately prior to the date of 
determination of inadmissibility.
    By statute, an alien present in the U.S. who has not been admitted 
shall be deemed for purposes of the Act to be an applicant for 
admission. 8 U.S.C. 1225(a), section 235(a)(1) of the Act. Once 
alienage has been established, an alien applicant for admission has the 
burden of establishing that he or she is clearly and beyond doubt 
entitled to be admitted and is not inadmissible under section 212 of 
this Act. Aliens who have not been admitted or paroled and who are 
subject to expedited removal under this designation have the burden of 
proof to show affirmatively that they are not inadmissible and have 
maintained the required continuous physical presence in the U.S. Any 
absence from the U.S. shall serve to break the period of continuous 
physical presence. 8 CFR 235.3(b)(1)(ii).
    Pursuant to 8 CFR 235.3(b)(1)(ii) (62 FR 10312, 10355, March 6, 
1997), the Attorney General provided that her designation authority 
would be exercised by the Commissioner of the former Immigration and 
Naturalization Service (INS). Pursuant to sections 102(a), 441, 1512(d) 
and 1517 of the Homeland Security Act of 2002, Public Law 107-296, 116 
Stat. 2310, 6 U.S.C. 112, 251, 552(d), 557, and 8 CFR 2.1, the 
authority of the Attorney General and the Commissioner of the INS in 
accordance with 8 U.S.C. 235(b)(1)(A)(iii) and 8 CFR 235.3(b)(1)(ii), 
respectively, was transferred to the Secretary of Homeland Security, 
and references to the Attorney General or the Commissioner in the 
statute and regulations are deemed to refer to the Secretary.
    DHS has a pressing need to improve the security and safety of the 
nation's land borders, and expanding expedited removal between ports of 
entry will provide DHS officers with a valuable tool to meet that 
objective. Presently DHS officers cannot apply expedited removal 
procedures to the nearly 1 million aliens who are apprehended each year 
in close proximity to the borders after illegal entry. It is not 
logistically possible for DHS to initiate formal removal proceedings 
against all such aliens. This is primarily a problem along the southern 
border, and thus the majority of such aliens are Mexican nationals, who 
are ``voluntarily'' returned to Mexico without any formal removal 
order. Based upon anecdotal evidence, many of those who are returned to 
Mexico seek to reenter the U.S. illegally, often within 24 hours of 
being voluntarily returned (it is not uncommon for DHS officers to 
apprehend the same individual many times over a span of several 
months). On the southern land border with Mexico, those aliens who are 
apprehended who are not Mexican nationals cannot be returned to Mexico. 
Currently, non-Mexican nationals who are inadmissible may be 
voluntarily returned to their country of citizenship or nationality via 
aircraft, or placed in formal removal proceedings under section 240 of 
the Act. Because DHS lacks the resources to detain all third-country 
nationals (aliens who are neither nationals of Mexico nor Canada) who 
have been apprehended after illegally crossing into the U.S. from both 
the northern and southern land borders, many of these aliens are 
released in the U.S. each year with a notice to appear for removal 
proceedings. Many of these aliens subsequently fail to appear for their 
removal proceedings, and then disappear in the U.S.
    Without limiting its ability to exercise its discretion in the 
event of a national emergency, other unforeseen events, or a change in 
circumstances, DHS plans under this designation as a matter of 
prosecutorial discretion to apply expedited removal only to (1) third-
country nationals and (2) to Mexican and Canadian nationals with 
histories of criminal or immigration violations, such as smugglers or 
aliens who have made numerous illegal entries. We recognize that 
certain aliens, including unaccompanied minors, members of the Class 
Action Settlement in American Baptist Churches v. Thornburgh, 760 F. 
Supp. 796 (N.D. Cal. 1991) (which settled the claims of a class of 
Salvadorans and Guatemalans regarding handling of asylum claims), and 
aliens who may be eligible for cancellation of removal under section 
240A of the Act,

[[Page 48879]]

for example, may possess equities that weigh against the use of 
expedited removal proceedings. Accordingly, in appropriate 
circumstances and as an exercise of prosecutorial discretion, officers 
will be able to permit certain aliens described in this notice to 
return voluntarily, withdraw their application for admission, or to be 
placed into regular removal proceedings under section 240 of the Act in 
lieu of expedited removal proceedings.
    In the interests of focusing enforcement resources upon unlawful 
entries that have a close spatial and temporal nexus to the border, 
this notice does not implement the full nationwide expedited removal 
authority available to DHS pursuant to section 235 of the Act, 8 U.S.C. 
1225. Nor does this notice limit DHS from implementing the full 
nationwide enforcement authority of the statute through publication of 
a subsequent Federal Register notice. The statute provides DHS with the 
authority to apply expedited removal to aliens who cannot establish 
that they have maintained a physical presence in the U.S. continuously 
for the two-year period immediately prior to the date of determination 
of inadmissibility. The statute also does not limit geographically the 
application of expedited removal. At this time, DHS has elected to 
assert and implement only that portion of the authority granted by the 
statute that bears close temporal and spatial proximity to illegal 
entries at or near the border. Accordingly, this notice applies only to 
aliens encountered within 14 days of entry without inspection and 
within 100 air miles of any U.S. international land border.
    It is anticipated under this designation that expedited removal 
will be employed against those aliens who are apprehended immediately 
proximate to the land border and have negligible ties or equities in 
the U.S. Nevertheless, this designation extends to a 100-mile 
operational range because many aliens will arrive in vehicles that 
speedily depart the border area, and because other recent arrivals will 
find their way to near-border locales seeking transportation to other 
locations within the interior of the U.S. The 100-mile range already 
has been established by regulation as a reasonable distance from the 
external boundary of the U.S. for the purpose of preventing the illegal 
entry of aliens into the U.S. See section 287(a)(3) of the Act; 8 CFR 
287.1(a)(2) and (c).
    The use of expedited removal orders, which prohibit reentry for a 
period of 5 years, will deter unlawful entry, and make it possible to 
pursue future criminal prosecution against those aliens who continue to 
enter the U.S. in violation of law. It will also accelerate the 
processing of inadmissible aliens because it generally does not require 
an appearance before an immigration judge, except in certain 
circumstances. Deterring future entries and accelerating removals will 
enhance DHS's ability to oversee the border, and to focus its resources 
on threats to public safety and to national security. DHS also believes 
that the use of expedited removal will likely interfere with human 
trafficking and alien smuggling operations, which are growing in 
sophistication, and which induce aliens from all over the world to 
cross the country's borders. Alien smuggling organizations have been 
responsible for numerous violent crimes, including homicide, hostage-
taking, and crimes involving sexual exploitation. DHS expects that the 
expansion of expedited removal under this notice will ultimately reduce 
the number of aliens who risk injury or death attempting to enter the 
U.S. through difficult mountainous and desert terrain, as well as 
decrease property crimes in border areas.
    All aliens placed into expedited removal as a result of this 
designation will have the same rights to a credible fear screening by 
an asylum officer, and the right to review of an adverse credible fear 
determination by an immigration judge, that are provided to arriving 
aliens who are currently placed into expedited removal after being 
denied admission at a port of entry. Any alien who falls within this 
designation, who is placed in expedited removal proceedings, and who 
indicates an intention to apply for asylum or who asserts a fear of 
persecution or torture will be interviewed by an asylum officer who 
will determine whether the alien has a credible fear as defined in 
section 235(b)(1)(B)(v) of the Act, 8 U.S.C. 1225(b)(1)(B)(v). If that 
standard is met, the alien will be referred to an immigration judge for 
a removal proceeding under section 240 of the Act, sections 
235(b)(1)(A)(ii) and (B) of the Act, 8 U.S.C. 1225(b)(1)(A)(ii) and 
(B); 8 CFR 235.3(b)(4). The Forms I-867A and I-867B currently used by 
officers who process aliens under the expedited removal program provide 
to all aliens in expedited removal proceedings information concerning 
the credible fear interview, in accordance with the statutory 
requirement at section 235(b)(1)(B)(iv) of the Act, 8 U.S.C. 
1225(b)(1)(B)(iv). The forms require that the officer inquire whether 
the alien has any reason to fear harm if returned to his or her 
country. Officers authorized to administer the expedited removal 
program will be trained to be alert for any verbal or non-verbal 
indications that the alien may be afraid to return to his or her 
homeland.
    Similarly, all aliens placed into expedited removal as a result of 
this designation, who claim lawful permanent resident, refugee, asylee 
status, or U.S. citizenship will receive the same procedures, including 
the right to review of any adverse expedited removal order by an 
immigration judge, that are provided to arriving aliens making similar 
status claims who are currently placed in expedited removal at ports of 
entry under 8 CFR 235.3(b). DHS, with limited exceptions, plans to 
detain aliens who are placed in expedited removal under this 
designation. Section 235(b)(1)(B)(iii)(IV) of the Act, 8 U.S.C. 
1225(b)(1)(B)(iii)(IV), and 8 CFR 235.3(b)(2)(iii) direct that any 
alien who is placed in expedited removal proceedings shall be detained 
pending a final determination of credible fear and, if found not to 
have such a fear, such alien shall be detained until removed. Parole of 
such alien under 8 CFR 235.3(b)(2)(iii) may be permitted only when the 
Secretary determines, in the exercise of discretion, that parole is 
required to meet a medical emergency or is necessary for a legitimate 
law enforcement objective. Section 235(b)(1)(B)(ii) of the Act, 8 
U.S.C. 1225(b)(1)(B)(ii), directs that if a credible fear has been 
established, the alien shall be detained for further consideration of 
the protection claim or claims. Under Department of Justice 
regulations, immigration judge review of custody determinations is 
permitted only for bond and custody determinations pursuant to section 
236 of the Act, 8 U.S.C. 1226, 8 CFR 1236, and 8 CFR 1003.19(a). Aliens 
subject to expedited removal procedures under section 235 of the Act 
(including those aliens who are referred after a positive credible fear 
determination to an immigration judge for proceedings under section 240 
of the Act) are not eligible for bond, and therefore are not eligible 
for a bond redetermination before an immigration judge. Parole of 
aliens determined to have a credible fear may be considered in 
accordance with section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), and 
8 CFR 212.5.
    The expedited removal authority implemented in this Notice will not 
be employed against Cuban citizens because removals to Cuba cannot 
presently be assured and for other U.S. policy reasons.
    The Department has determined that good cause exists under the

[[Page 48880]]

Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B) and (d)(3), 
to exempt this notice from the notice and comment requirements under 
the APA. Delaying the implementation of this notice to allow public 
notice and comment would be impracticable, unnecessary and contrary to 
the public interest.
    Congress explicitly authorized the Secretary of Homeland Security 
to designate categories of aliens to whom expedited removal proceedings 
may be applied, and made clear that ``[s]uch designation shall be in 
the sole and unreviewable discretion of the Secretary and may be 
modified at any time.'' Section 235(b)(1)(A)(iii)(1) of the Act, 8 
U.S.C. 1225(b)(1)(A)(iii)(I). The large volume of illegal entries, and 
attempted illegal entries, and the attendant risks to national security 
presented by these illegal entries, necessitates that DHS expand the 
expedited removal program as provided in this designation. DHS is 
confident that the experience gained through implementation of the 
expedited removal program at ports of entry will enable DHS to expand 
the program in a manner that is both effective and humane.
    There is an urgent need to enhance DHS's ability to improve the 
safety and security of the nation's land borders, as well as the need 
to deter foreign nationals from undertaking dangerous border crossings, 
and thereby prevent the needless deaths and crimes associated with 
human trafficking and alien smuggling operations. The expansion of 
expedited removal will increase the deterrence of illegal entries by 
ensuring that apprehension quickly leads to removal. This is especially 
critical because of the environmental dangers faced by aliens illegally 
entering the U.S. across desert or mountainous areas. In the Arizona 
desert alone, since the initiation of the Arizona Border Control 
Initiative (ABC) in March of 2004, the Border Patrol has rescued 
hundreds of aliens in distress and has unfortunately discovered over 40 
aliens who have died in the attempt to enter the U.S.
    This designation is necessary to remove quickly from the U.S. 
aliens who are encountered shortly after illegally entering the U.S. 
across the land borders. The ability to detain aliens while 
admissibility and identity is determined and protection claims are 
adjudicated, as well as to quickly remove aliens without protection 
claims or claims to lawful status, is a necessity for national security 
and public safety. As a critical element of a number of DHS initiatives 
to enhance security along the border, the expansion of expedited 
removal will increase national security, diminish the number of illegal 
entries, and impair the ability of smuggling organizations to operate. 
Accordingly, for the foregoing reasons, the Department has determined 
that public notice and comment prior to promulgation of this notice 
would be impracticable, unnecessary and contrary to the public interest 
as those terms are used under the APA.
    Although the Department believes for the foregoing reasons that 
pre-promulgation notice and comment procedures are not statutorily 
mandated in this case, DHS 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. DHS 
believes that by maintaining a dialogue with interested parties, DHS 
can ensure that the program is even more effective in combating and 
deterring illegal entry, while at the same time protecting the rights 
of the individuals affected.
    The expansion of expedited removal under this notice will also 
support the Arizona Border Control Initiative (ABC), a program designed 
to secure and protect the Arizona border. Working with other Federal, 
State, local and tribal entities, DHS has placed significant personnel 
and technical assets on the border to decrease the deaths of illegal 
immigrants in the desert; and to lower the rate of violent crime 
related to illegal border traffic in Southern Arizona. The ABC began 
operations in March 2004. For the reasons stated above, the ABC's 
success will rely in part upon the ability of DHS officers to place 
inadmissible aliens apprehended shortly after illegal entry into 
expedited removal.
    Every year, illegal aliens from many different countries continue 
to enter the U.S. illegally across the nation's land borders. It is 
critical for public safety and national security that these aliens are 
not released into the U.S. without adequate verification of their 
identities and backgrounds.

Notice of Designation of Aliens Subject to Expedited Removal 
Proceedings

    Pursuant to section 235(b)(1)(A)(iii) of the Immigration and 
Nationality Act (``Act'') and 8 CFR 235.3(b)(1)(ii), I order as 
follows:
    (1) Except as provided in paragraph (5), the Department of Homeland 
Security, through its component bureaus, may place in expedited removal 
proceedings any or all members of the following class of aliens: Aliens 
who are inadmissible under sections 212(a)(6)(C) or (7) of the Act, who 
are physically present in the U.S. without having been admitted or 
paroled following inspection by an immigration officer at a designated 
port-of-entry, who are encountered by an immigration officer within 100 
air miles of any U.S. international land border, and who have not 
established to the satisfaction of an immigration officer that they 
have been physically present in the U.S. continuously for the 14-day 
period immediately prior to the date of encounter. Each alien subject 
to this notice bears the affirmative burden to show to the satisfaction 
of an immigration officer that the alien has been present in the U.S. 
continuously for the relevant 14-day period. This notice does not apply 
to aliens who arrive at U.S. ports-of-entry, as these aliens are 
already subject to expedited removal. This notice will be given effect 
only with respect to apprehensions made within the CBP Border Patrol 
sectors of (Laredo, McAllen, Del Rio, Marfa, El Paso, Tucson, Yuma, El 
Centro, San Diego, Blaine, Spokane, Havre, Grand Forks, Detroit, 
Buffalo, Swanton, and Houlton).
    (2) Any alien who falls within this designation who indicates an 
intention to apply for asylum or who asserts a fear of persecution or 
torture will be interviewed by an asylum officer to determine whether 
the alien has a credible fear as defined in section 235(b)(1)(B)(v) of 
the Act, 8 U.S.C. 1225(b)(1)(B)(v). If that standard is met, the alien 
will be referred to an immigration judge for proceedings under section 
240 of the Act, 8 U.S.C. 1229a.
    (3) Any alien who is placed in expedited removal proceedings under 
this designation who claims lawful permanent resident, refugee, asylee 
status, or U.S. citizenship will be processed in accordance with the 
procedures provided in 8 CFR 235.3(b) and 8 CFR 1235.3(b).
    (4) Any alien who is placed in expedited removal proceedings under 
this designation will be detained pursuant to section 235(b) of the 
Act, 8 U.S.C. 1225(b), with certain exceptions, until removed. However, 
aliens determined to have a credible fear may be considered by DHS for 
parole in accordance with section 212(d)(5) of the Act and 8 CFR 212.5. 
Aliens detained pursuant to the expedited removal provisions under 
section 235 of the Act (including those aliens who are referred after a 
positive credible fear determination to an immigration judge for 
proceedings under section 240 of the Act) are not eligible for bond, 
and therefore are not eligible for a bond

[[Page 48881]]

redetermination before an immigration judge.
    (5) This notice applies to aliens described in paragraph (1) who 
are encountered within the U.S. beginning August 11, 2004.
    (6) The expedited removal proceedings contemplated by this notice 
will not be initiated against Cuban citizens or nationals.

    Dated: August 3, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-18469 Filed 8-10-04; 8:45 am]
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