11 August 2004
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: August 11, 2004 (Volume 69, Number 154)]
[Notices]
[Page 48877-48881]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au04-86]

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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,
dana.graydon@dhs.gov, 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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