[Federal Register Volume 84, Number 141 (Tuesday, July 23, 2019)]
[Notices]
[Pages 35409-35414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15710]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[DHS Docket No. DHS-2019-0036]


Designating Aliens for Expedited Removal

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice.

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SUMMARY: This Notice (this Notice) enables the Department of Homeland 
Security (DHS) to exercise the full remaining scope of its statutory 
authority to place in expedited removal, with limited exceptions, 
aliens determined to be inadmissible under sections 212(a)(6)(C) or 
(a)(7) of the Immigration and Nationality Act (INA or the Act) who have 
not been admitted or paroled into the United States, and who have not 
affirmatively shown, to the satisfaction of an immigration officer, 
that they have been physically present in the United States 
continuously for the two-year period immediately preceding the date of 
the determination of inadmissibility. Presently, immigration officers 
can apply expedited removal to aliens encountered anywhere in the 
United States for up to two years after the alien arrived in the United 
States, provided that the alien arrived by sea and the other conditions 
for expedited removal are satisfied. For aliens who entered the United 
States by crossing a land border, the Secretary of Homeland Security 
has exercised his discretion under the INA to permit the use of 
expedited removal if the aliens were encountered by an immigration 
officer within 100 air miles of the United States international land 
border and were continuously present in the United States for less than 
14 days immediately prior to that encounter. The INA grants the 
Secretary of Homeland Security the ``sole and unreviewable discretion'' 
to modify at any time the discretionary limits on the scope of the 
expedited removal designation. The Acting Secretary of Homeland 
Security is exercising his statutory authority through this Notice to 
designate for expedited removal the following categories of aliens not 
previously designated: (1) Aliens who did not arrive by sea, who are 
encountered anywhere in the United States more than 100 air miles from 
a U.S. international land border, and who have been continuously 
present in the United States for less than two years; and (2) aliens 
who did not arrive by sea, who are encountered within 100 air miles 
from a U.S. international land border, and who have been continuously 
present in the United States for at least 14 days but for less than two 
years. Therefore, the designation in this Notice (the New Designation) 
harmonizes the authorization for aliens arriving by land with the 
existing authorization for aliens arriving by sea. The effect of that 
change will be to enhance national security and public safety--while 
reducing government costs--by facilitating prompt immigration 
determinations. In particular, the New Designation will enable DHS to 
address more effectively and efficiently the large volume of aliens who 
are present in the United States unlawfully, without having been 
admitted or paroled into the United States, and ensure the prompt 
removal from the United States of those not entitled to enter, remain, 
or

[[Page 35410]]

be provided relief or protection from removal.

DATES: This Notice, including the New Designation, is effective on July 
23, 2019. Interested persons are invited to submit written comments on 
this Notice on or before September 23, 2019.

ADDRESSES: You may submit comments, identified by Docket Number DHS-
2019-0036 using the Federal e-Rulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: Ihsan Gunduz, Policy Analyst, Office 
of Policy, Department of Homeland Security, 202-282-9708.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

    The Department of Homeland Security (DHS) is requesting public 
comments on the substance of this Notice as a matter of discretion. As 
discussed in Section D below, the Administrative Procedure Act's (APA) 
notice-and-comment requirements do not apply to this Notice, and the 
New Designation is effective immediately upon publication. However, DHS 
believes that by maintaining a dialogue with interested parties, DHS 
can ensure that it is even more effective in addressing the significant 
national security and public safety interests implicated with respect 
to aliens present in the United States who entered the United States 
without admission or parole and have been continuously present in the 
United States for at least 14 days but less than two years after their 
entry regardless of where in the U.S. they are encountered, and those 
continuously present for up to 14 days who are encountered more than 
100 miles from a land border, while at the same time continuing to 
ensure appropriate procedural safeguards for affected individuals.
    We encourage commenters to submit comments through the Federal e-
Rulemaking Portal at https://www.regulations.gov. Please follow the 
website instructions for submitting comments. If you cannot submit your 
comments using the Federal e-Rulemaking Portal, please contact the 
person in the FOR FURTHER INFORMATION CONTACT section of this notice 
for alternate instructions.
    Comments received by means other than those listed above or 
comments received after the comment period has closed will not be 
reviewed. Comments posted on the Federal e-Rulemaking portal are 
available and accessible to the public. All comments received will be 
posted without change on https://www.regulations.gov. Commenters should 
not include personal information such as Social Security Numbers, 
personal addresses, telephone numbers, and email addresses in their 
comments as such information will become viewable by the public on the 
http://www.regulations.gov website. It is the commenter's 
responsibility to safeguard his or her information.

II. Background

A. DHS Statutory Authority Over Expedited Removal Proceedings

    Under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), DHS \1\ 
may remove, without a hearing before an immigration judge, certain 
aliens arriving in the United States at a port of entry, and certain 
other aliens (as designated by the Secretary of Homeland Security and 
as discussed more below) who are inadmissible under sections 
212(a)(6)(C) or 212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or 
1182(a)(7). Sections 212(a)(6)(C) and 212(a)(7) of the INA designate 
aliens as inadmissible if they lack valid documents that are necessary 
for admission, or if they have ever fraudulently or willfully 
misrepresented a material fact to acquire admission to the United 
States, including whether they are a U.S. citizen, or to procure a visa 
or other immigration-related documentation. Unaccompanied alien 
children, as defined in 6 U.S.C. 279(g)(2), may not be placed in 
expedited removal under current law.\2\ See 8 U.S.C. 1232(a)(5)(D).
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    \1\ The INA provided the Attorney General those authorities; 
however, under section 1517 of title XV of the Homeland Security Act 
of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to 
the Attorney General in a provision of the INA describing functions 
that were transferred from the Attorney General or other Department 
of Justice official to DHS by the HSA ``shall be deemed to refer to 
the Secretary'' of Homeland Security. See 6 U.S.C. 557 (2003) 
(codifying HSA, tit. XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 
1551 note.
    \2\ In certain limited circumstances, an unaccompanied alien 
child who is a national or habitual resident of a contiguous country 
(i.e., Mexico or Canada) may be permitted to withdraw his or her 
application for admission to the United States and return to such 
contiguous country without a removal hearing. See 8 U.S.C. 
1232(a)(2).
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    The Secretary, in his ``sole and unreviewable discretion,'' may 
designate certain aliens to whom the expedited removal provisions may 
be applied. INA section 235(b)(1)(A)(iii)(I), 8 U.S.C. 
1225(b)(1)(A)(iii)(I); 8 CFR 235.3(b)(1)(ii). The statute provides that 
the Secretary may apply (by designation) expedited removal to any alien 
``who has not been admitted or paroled into the United States, and who 
has not affirmatively shown, to the satisfaction of an immigration 
officer, that the alien has been physically present in the United 
States continuously for the 2-year period immediately prior to the date 
of the determination of inadmissibility. . . .'' INA section 
235(b)(1)(A)(iii)(II), 8 U.S.C. 1225(b)(1)(A)(iii)(II). In other words, 
Congress provided the Secretary, in his sole and unreviewable 
discretion, the authority to apply expedited removal to aliens 
inadmissible under INA section 212(a)(6)(C) or 212(a)(7), who had not 
been admitted or paroled and who could not prove that they have been 
continuously present in the United States for two years.
    In 1997, the Attorney General promulgated a regulation applying 
expedited removal to aliens arriving in the United States at a port-of-
entry and aliens interdicted in international or United States waters. 
Inspection and Expedited Removal of Aliens; Detention and Removal of 
Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10,312 
(Mar. 6, 1997) (the 1997 Regulation). The 1997 Regulation also 
delegated the Attorney General's authority to the Commissioner of the 
former Immigration and Naturalization Service (INS) and established a 
mechanism for later designations of aliens subject to expedited 
removal. See id. The Attorney General ``emphasized that a proposed 
expansion of the expedited removal procedures may occur at any time and 
may be driven either by specific situations such as a sudden influx of 
illegal aliens motivated by political or economic unrest or other 
events or by a general need to increase the effectiveness of 
enforcement operations at one or more locations.'' See id.
    In 2002, the Commissioner of the INS invoked this authority to 
designate as eligible for expedited removal aliens who arrived in the 
United States by sea, were not paroled or admitted into the United 
States, and ``who have not been physically present in the United States 
continuously for the two-year period prior to the determination of 
inadmissibility under'' the Notice. Notice Designating Aliens Subject 
to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration 
and Nationality Act, 67 FR 68923 (Nov. 13, 2002) (the 2002 Notice). 
Under the 2002 Notice, immigration officers could apply expedited 
removal to aliens encountered anywhere in the United States for up to 
two years after the alien arrived in the United States, as long as the 
alien arrived by sea and the other

[[Page 35411]]

conditions for expedited removal were satisfied.
    In 2004, the Secretary designated additional aliens for expedited 
removal through a Federal Register notice, pursuant to which DHS 
officials could apply expedited removal to aliens encountered within 
100 air miles of the border and within 14 days of their date of entry 
regardless of the alien's method of arrival, as long as the other 
conditions for expedited removal were satisfied. Designating Aliens for 
Expedited Removal, 69 FR 48877 (Aug. 11, 2004) (the 2004 Notice, and, 
together with the 1997 Regulation and the 2002 Notice, collectively the 
Previous Designations); see also Eliminating Exception To Expedited 
Removal Authority for Cuban Nationals Encountered in the United States 
or Arriving by Sea, 82 FR 4902 (Jan. 17, 2017). The 2004 Notice 
explained that in the interest of focusing limited resources ``upon 
unlawful entries that have a close spatial and temporal nexus to the 
border,'' the 2004 Notice did not implement ``the full nationwide 
expedited removal authority available to DHS.'' It did, however, 
expressly reserve to DHS the option of ``implementing the full 
nationwide enforcement authority of the statute through publication of 
a subsequent Federal Register notice.'' Designating Aliens for 
Expedited Removal, 69 FR at 48879.
    In recent years, increasing numbers of aliens have been detained 
after being apprehended within the interior of the United States, 
necessitating a change in the focus of limited government resources to 
include the use of expedited removal proceedings for aliens apprehended 
within the U.S. interior, as well as near the border.
    Aliens otherwise subject to expedited removal who indicate either 
an intention to apply for asylum or a fear of persecution or torture 
will be given further review by an asylum officer including an 
opportunity to establish a ``credible fear,'' and thus potential 
eligibility for asylum. INA section 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i); 8 CFR 235.3(b)(4). Further, an alien otherwise 
subject to expedited removal is ``given a reasonable opportunity to 
establish to the satisfaction of the examining immigration officer that 
he or she was admitted or paroled into the United States.'' 8 CFR 
235.3(b)(6). Aliens who have not been admitted or paroled and who are 
subject to expedited removal have the burden of proving that they are 
not inadmissible and satisfy the continuous physical presence 
requirement. 8 CFR 235.3(b)(1)(ii). Any absence from the United States 
serves to break the period of continuous physical presence. Id. Aliens 
determined by immigration officers to be subject to expedited removal 
nonetheless will receive prompt review of that determination if they 
claim under oath, after being warned of the penalties for perjury, that 
they have been admitted for permanent residence, admitted as a refugee, 
granted asylum, or are a U.S. citizen. INA section 235(b)(1)(C), 8 
U.S.C. 1225(b)(1)(C); 8 CFR 235.3(b)(5)(i).

B. DHS Need for the New Designation

    In light of the ongoing crisis at the southern border, the large 
number of aliens who entered illegally and were apprehended and 
detained within the interior of the United States, and DHS's 
insufficient detention capacity both along the border and in the 
interior of the United States, DHS is issuing the New Designation to 
use more effectively and efficiently its limited resources to fulfill 
its mission to enforce the immigration laws and ensure the security of 
the Nation's borders. See INA section 103(a)(5), 8 U.S.C. 1103(a)(5); 6 
U.S.C. 202; Exec. Order 13767, Border Security and Immigration 
Enforcement Improvements, 82 FR 8793, section 1 (Jan. 25, 2017) (Border 
Security E.O.) (``Border security is critically important to the 
national security of the United States. Aliens who illegally enter the 
United States without inspection or admission present a significant 
threat to national security and public safety.''). Fully exercising 
DHS's statutory expedited removal authority to include certain aliens 
who would not be subject to expedited removal under the Previous 
Designations will provide to DHS officers a valuable tool to fulfill 
their mission.
    Fully implementing expedited removal will help to alleviate some of 
the burden and capacity issues currently faced by DHS and DOJ by 
allowing DHS to remove certain aliens encountered in the interior more 
quickly, as opposed to placing those aliens in more time-consuming 
removal proceedings. Indeed, many of the aliens previously encountered 
in the interior of the United States likely would have been eligible 
for expedited removal under this Notice. In Fiscal Year (FY) 2018, 37% 
(20,570) of ICE's 54,983 total interior encounters, with entry dates, 
were of aliens who had been present in the United States for less than 
two years. Through March 30, 2019, 39% (6,410) of U.S. Immigration and 
Customs Enforcement's (ICE) 15,328 total interior encounters, with 
entry dates, in FY2019 were aliens who had been present in the United 
States for less than two years. ICE estimates that a significant number 
of the aliens it encounters in the interior likely would have been 
eligible for expedited removal had DHS used its discretion to exercise 
its full statutory authority. Placing certain aliens apprehended in the 
interior of the United States in expedited removal would allow ICE to 
more effectively use its limited detention resources. In FY 2018, the 
average time in DHS custody for aliens placed in expedited removal was 
11.4 days. Conversely, for inadmissible aliens encountered in the 
interior of the United States and placed into full removal proceedings, 
the average time in DHS custody was 51.5 days. Under the New 
Designation, ICE will be able to use expedited removal for certain 
aliens who it arrests in the interior, which will likely result in 
those aliens spending less time in ICE detention than if they were 
placed in full removal proceedings. That, in turn, will more quickly 
make available additional ICE bed space, which can be used for 
additional interior arrests and removals.
    Additionally, the Acting Secretary of Homeland Security has 
determined that the implementation of additional measures is a 
necessary response to the ongoing immigration crisis. Presently, U.S. 
Border Patrol and ICE lack sufficient detention capacity and resources 
to detain the vast majority of aliens DHS apprehends along the southern 
border. As a result, hundreds of thousands of aliens are released into 
the interior of the United States, pending the outcome of their 
immigration proceedings. However, by more effectively utilizing ICE's 
limited resources, more aliens apprehended along the southern border 
likely will be able to be detained in ICE custody, where they can be 
more quickly processed and removed from the country than if they had 
been released into the interior of the United States. The New 
Designation will also allow ICE to place into expedited removal certain 
aliens that cross the border illegally but evade apprehension due to 
vulnerabilities in border operations resulting from U.S. Border 
Patrol's lack of sufficient resources.
    Additionally, immigration courts nationwide are experiencing a 
historic backlog of removal cases, and non-detained cases are taking 
years to complete. In June 2019, EOIR reported a total of 909,034 
pending immigration cases. By contrast, there were fewer than 168,000 
cases pending at the end of Fiscal Year 2004 when DHS exercised its 
discretion to apply expedited removal to certain aliens encountered 
within 100 miles of the border who

[[Page 35412]]

could not establish to the satisfaction of an immigration officer that 
they have been physically present in the United States continuously for 
the previous 14 days. The current number of pending immigration cases 
represents a substantial increase of the number of cases pending 
completion in 2004, notwithstanding the 2004 Notice. Moreover, the 
average non-detained alien's removal proceeding has been pending for 
more than two years before an immigration judge. That backlog includes 
many cases involving aliens who were encountered by an immigration 
officer during the two-year period after they illegally entered the 
United States, but who were not covered by a Previous Designation. DHS 
expects that the New Designation will help mitigate additional backlogs 
in the immigration courts and will reduce the significant costs to the 
government associated with full removal proceedings before an 
immigration judge, including the costs of a longer detention period and 
government representation in those proceedings. DHS acknowledges that 
it will need to devote certain additional resources to implement this 
Notice, including by making credible fear determinations for certain 
aliens placed in expedited removal proceedings. Nonetheless, DHS 
anticipates that the mitigation of additional backlogs in the 
immigration courts, the reduction of costs associated with placing 
aliens in full removal proceedings, and the ability to use limited 
resources and detention capacity more effectively outweighs any 
additional costs to the government.
    Under this Notice, the Acting Secretary is designating as eligible 
for expedited removal: (1) Aliens who did not arrive by sea, who are 
encountered anywhere in the United States more than 100 air miles from 
a U.S. international land border, and who have been continuously 
present in the United States for less than two years; and (2) aliens 
who did not arrive by sea, who are encountered within 100 air miles 
from a U.S. international land border, and who have been continuously 
present in the United States for at least 14 days but for less than two 
years. The designation under the 2004 Notice restricting expedited 
removal to those encountered within 100 miles of the border makes 
insufficient use of the authorities Congress has granted to address the 
current immigration crisis, the large number of aliens illegally 
present in the United States, insufficient DHS resources, and the 
backlog of removal cases before immigration judges and the Board of 
Immigration Appeals. The statute places no geographic limitation on the 
application of expedited removal. DHS has anecdotal evidence, moreover, 
that many aliens who have been smuggled into the United States hide in 
``safe houses'' that are located more than 100 miles from the nearest 
land border. For instance, in 2019, ICE conducted a ``knock and talk'' 
of a safe house in Roswell, New Mexico, which is more than 100 miles 
from the nearest land border, and encountered 67 illegal aliens, 
resulting in arrests and numerous charges. In 2018, ICE executed a 
search warrant at a safe house in San Antonio, Texas, during an 
extortion attempt tied to a human smuggling event, resulting in the 
rescue of three victims and arrests and charges against the subjects 
with alien smuggling.
    Under the Previous Designations, DHS officers could not apply 
expedited removal to those individuals, thus limiting the availability 
of an important authority that Congress has granted to DHS for quickly 
and efficiently removing certain inadmissible aliens. Under this 
Notice, DHS anticipates that this broader use of expedited removal 
orders will reduce incentives not only to enter unlawfully but also to 
attempt to travel quickly into the interior of the United States in an 
effort to avoid the application of expedited removal. It will also 
accelerate the processing of covered inadmissible aliens, because 
expedited removal does not entail merits hearings before an immigration 
judge or appeals to the Board of Immigration Appeals except upon 
positive fear determinations. Therefore, designating aliens encountered 
anywhere in the United States, who are not subject to a Previous 
Designation, will help to ensure efficient removal from the United 
States of aliens who cannot establish a credible fear of persecution or 
torture.
    DHS has determined that the volume of illegal entries, and the 
attendant risks to national security and public safety presented by 
these illegal entries, warrants this immediate implementation of DHS's 
full statutory authority over expedited removal. This Notice will 
ensure that those individuals present in the United States without 
being admitted or paroled, particularly those who evade apprehension at 
the southern border, are quickly and efficiently removed (except if 
they have demonstrated a credible fear of persecution or torture). DHS 
expects that the full use of expedited removal statutory authority will 
strengthen national security, diminish the number of illegal entries, 
and otherwise ensure the prompt removal of aliens apprehended in the 
United States. And it will further Congress's purpose for creating 
expedited removal procedures, which was ``to expedite the removal from 
the United States of aliens who indisputably have no authorization to 
be admitted to the United States . . . .'' H.R. Rept. 104-828 at 209 
(1996). Accordingly, immigration officers may now use expedited removal 
authority not only for those individuals apprehended at or near the 
border, but also for those individuals who evade detection at the 
border and are apprehended within two years thereafter anywhere within 
the United States.

C. Implementation Considerations

    As in the case of the Previous Designations, immigration officers 
generally have broad discretion to apply expedited removal to 
individuals covered under the New Designation. See Matter of E-R-M- & 
L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) (holding that language in INA 
section 235(b)(1)(A)(i) does not limit DHS's discretion to place aliens 
amenable to expedited removal into removal proceedings under INA 
section 240). DHS recognizes that the circumstances of certain aliens, 
including aliens with serious medical conditions and aliens who have 
substantial connections to the United States, for example, may weigh 
against the discretionary use of expedited removal proceedings.\3\ 
Accordingly, in appropriate circumstances, and as an exercise of 
prosecutorial discretion, immigration officers, in their sole and 
unreviewable discretion, may permit certain aliens otherwise eligible 
for placement into expedited removal proceedings to return voluntarily, 
withdraw their applications for admission, or be placed in full removal 
proceedings under section 240 of the Act, in lieu of expedited removal. 
DHS plans to issue guidance to immigration officers to guide the 
exercise of discretion in referring aliens for expedited removal.
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    \3\ Trump v. Int'l Refugee Assistance Project, 582 U.S. ___, No. 
16-1436, slip op. at 11 (noting that ``foreign nationals abroad who 
have no connection to the United States at all'' can be denied entry 
as such a denial does not ``impose any legally relevant hardship'' 
on the foreign nationals themselves).
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    The expedited removal procedures required under existing law and 
regulations are applicable to the aliens designated by this Notice.\4\ 
As required

[[Page 35413]]

by statute and regulation, any alien who falls within the New 
Designation, who is placed in expedited removal, and who indicates an 
intention to apply for asylum or expresses a fear of persecution or 
torture or a fear of return to his or her country, will be interviewed 
by an asylum officer who will determine whether the alien has a 
credible fear of persecution or torture. See INA section 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v); 8 CFR 235.3(b)(4), 208.30. 
DHS expects to continue to use the form I-867A/B, which includes 
questions officers must ask with respect to fear of return. Immigration 
officers are trained to be alert for indications that the alien may be 
afraid to return to his or her country. See INA section 235(b)(1)(E), 8 
U.S.C. 1225(b)(1)(E).\5\ Aliens that express a fear of return are 
referred for an interview with an asylum officer. INA section 
235(b)(1)(A)(ii); 8 U.S.C. 1225(b)(1)(A)(ii); 8 CFR 235.3(b)(4). Asylum 
officers determining that an alien has or has not established a 
credible fear are to provide a written record of the factual basis for 
their determination. See INA sections 235(b)(1)(B)(iii)(II), 8 U.S.C. 
1225(b)(1)(B)(iii)(II).
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    \4\ Under existing law, aliens wishing to apply for asylum are 
required by statute to do so within one year of entering the United 
States. INA section 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). See also 
Convention relating to the Status of Refugees, art. 31(1), July 28, 
1951, 189 U.N.T.S. 137, 174 (obliging refugees to ``present 
themselves without delay to the authorities and show good cause for 
their illegal entry or presence'').
    \5\ As the New Designation will result in greater use of 
expedited removal by ICE immigration officers, ICE will also develop 
and deploy updated training on the use of this authority, including 
proper referral of aliens for credible fear screening.
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    If an asylum officer determines that the alien has established a 
credible fear of persecution or torture, the alien will be referred to 
an immigration judge for further consideration of the alien's 
application for asylum. INA section 235(b)(1)(B)(ii), 8 U.S.C. 
1225(b)(1)(B)(ii); 8 CFR 208.30, 235.6. If the officer determines that 
the alien has not established a credible fear of persecution or 
torture, the alien may request de novo review by an immigration judge 
of the officer's negative credible fear determination. See INA section 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 
208.30(g), 1003.42, 1208.30, 1235.3(b)(4).
    Similarly, all aliens placed in expedited removal as a result of 
the New Designation who claim lawful permanent resident, refugee, or 
asylee status, or U.S. citizenship will have the benefit of the same 
procedural safeguards that apply in all expedited removal proceedings. 
See INA section 242(e)(2); 8 CFR 235.3(b); 1235.3(b)(5).

D. This Notice Is Immediately Effective

    In keeping with the practice followed in announcing the Previous 
Designations, and consistent with implementing regulations at 8 CFR 
235.3(b)(1)(ii),\6\ this designation is effective without prior notice 
and comment or a delayed effective date. See, e.g., 67 FR 68923, 68925 
(2002 Notice); 69 FR 48877, 48880 (2004 Notice); 82 FR 4769, 4769 (2017 
elimination of exception for Cuban nationals arriving by air); 82 FR. 
4902, 4902 (2017 elimination of exception for Cuban nationals 
encountered in the United States or arriving by sea). The rulemaking 
procedures of the APA do not apply to this Notice, because delaying the 
New Designation's implementation to allow public notice and comment 
would be impracticable, unnecessary, and contrary to the public 
interest. Cf. 5 U.S.C. 553(b)(3)(B) and (d)(3).
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    \6\ 8 CFR 235.3(b)(1)(ii) (providing that ``[t]he Commissioner 
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'' and that this ``designation shall become effective 
upon publication of a notice in the Federal Register'' as well as 
that, ``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'' (emphasis added)).
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    Implementation of the New Designation is exempt from notice-and-
comment requirements, because public notice and comment and the delay 
attendant thereon would be impracticable, unnecessary, and contrary to 
the public interest. See 5 U.S.C. 553(b)(B) and (d)(3). Congress 
explicitly authorized the Secretary of Homeland Security to designate 
categories of aliens to whom expedited removal may be applied on a 
case-by-case basis, 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.'' INA section 235(b)(1)(A)(iii)(I), 8 U.S.C. 
1225(b)(1)(A)(iii)(I). As such, the Secretary's designation is not 
required to go through notice-and-comment rulemaking. Indeed, the 
application of APA's notice-and-comment requirements would defeat a 
major purpose of the expedited removal provision: To allow the 
Secretary to authorize immigration officers to respond rapidly, 
effectively, and flexibly to border security and public safety 
challenges, including urgent situations such as the present high number 
of aliens unlawfully entering and remaining in the United States and 
the lack of sufficient DHS resources to deal with these aliens. 
Consistent with the mandate of INA section 235(b)(1)(A)(iii)(I), 8 
U.S.C. 1225(b)(1)(A)(iii)(I), that the Secretary may modify the scope 
of expedited removal under section 235(b)(1)(A)(iii) ``at any time,'' 
such designation ``shall become effective upon publication of a notice 
in the Federal Register.'' 8 CFR 235.3(b)(1)(ii) (noting that such 
designation where appropriate ``shall become effective immediately upon 
issuance''). Accordingly, it is appropriate to publish such 
designation, effective immediately, without prior notice and comment.
    Indeed, as in the cases of the Previous Designations, DHS is 
concerned that delayed implementation could lead to a surge in 
migration across the southern border during a notice-and-comment 
period. See 67 FR 68,924, 68,925; 82 FR 4902, 4904. ``Such a surge 
would threaten national security and public safety by diverting 
valuable Government resources from counterterrorism and homeland 
security responsibilities. A surge could also have a destabilizing 
effect on the region, thus weakening the security of the United States 
and threatening its international relations. Additionally, a surge 
could result in significant loss of human life.'' 82 FR 4902, 4904.
    In addition, DHS could not meaningfully implement INA section 
235(b)(1)(A)(iii)(I), which establishes that the Secretary's 
designation ``may be modified at any time,'' if such modification is 
not effective until after notice and comment rulemaking. The New 
Designation is necessary to remove from the United States inadmissible 
aliens not covered by a Previous Designation who are encountered less 
than two years after entering the United States without admission or 
parole.
    Although DHS believes that pre-promulgation notice-and-comment 
procedures are neither statutorily mandated nor in the interests of the 
United States with respect to this Notice, DHS is interested in 
receiving comments from the public on all aspects of this Notice. DHS 
believes that by maintaining a dialogue with interested parties, DHS 
may be better positioned to ensure that it is even more effective in 
combating and deterring illegal entry, while at the same time providing 
for appropriate procedural safeguards for the individuals designated.

III. Notice of Designation of Aliens Subject To Expedited Removal

    Pursuant to section 235(b)(1)(A)(iii) of the Immigration and 
Nationality Act (INA) and 8 CFR 235.3(b)(1)(ii), I order, in my sole 
and unreviewable discretion, as follows:

[[Page 35414]]

    (1) Except as otherwise expressly provided, the Department of 
Homeland Security may place in expedited removal any or all members of 
the following class of aliens (other than unaccompanied alien children 
as defined in 6 U.S.C. 279(g)(2)) as determined by an immigration 
officer: Aliens who are inadmissible under sections 212(a)(6)(C) or (7) 
of the INA, who are physically present in the United States without 
having been admitted or paroled following inspection by an immigration 
officer at a designated port of entry, and who either (a) did not 
arrive by sea, are encountered by an immigration officer anywhere in 
the United States more than 100 air miles from a U.S. international 
land border, and have not been physically present in the United States 
continuously for the two-year period immediately prior to the date of 
the determination of inadmissibility, or (b) did not arrive by sea, are 
encountered by an immigration officer within 100 air miles from a U.S. 
international land border, and have been physically present in the 
United States continuously at least 14 days but less than two years 
immediately prior to the date of the determination of inadmissibility. 
Each alien placed in expedited removal under this designation bears the 
affirmative burden to show to the satisfaction of an immigration 
officer that the alien has been present in the United States 
continuously for the relevant period. This designation does not apply 
to aliens who arrive at U.S. ports of entry, because those aliens are 
already subject to expedited removal. Nor does this designation apply 
to or otherwise affect aliens who satisfy the expedited removal 
criteria set forth in any of the previous designations. See 82 FR 4902, 
69 FR 48877; 67 FR 68923 (collectively, the Previous Designations).
    (2) Any alien who is placed in expedited removal under this 
designation who indicates an intention to apply for asylum or who 
expresses a fear of persecution or torture, or a fear of return to his 
or her country, will be interviewed by an asylum officer to determine 
whether such alien has a credible fear as defined in section 
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v). If the asylum 
officer determines that the alien has established a credible fear, the 
alien will be referred to an immigration judge for further 
consideration of his or her application for asylum in proceedings under 
section 240 of the INA, 8 U.S.C. 1229a.
    (3) Any alien who is placed in expedited removal under this 
designation who claims lawful permanent resident, refugee, or asylee 
status, or U.S. citizenship will be reviewed in accordance with the 
procedures provided in 8 CFR 235.3(b) and 8 CFR 1235.3(b).
    (4) This Notice applies to aliens described in paragraph (1) on or 
after July 23, 2019.
    (5) This Notice does not supersede, abrogate, or amend or modify 
any of the Previous Designations, which shall remain in full force and 
effect in accordance with their respective terms.

    Signed at Washington, DC, this 19th day of July 2019.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-15710 Filed 7-22-19; 8:45 am]
 BILLING CODE 9110-9M-P