[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]
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