Eliminating Exception To Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 4902-4905 [2017-00914]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Notices]
[Pages 4902-4905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00914]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[DHS Docket No. DHS-2017-0004]


Eliminating Exception To Expedited Removal Authority for Cuban 
Nationals Encountered in the United States or Arriving by Sea

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

ACTION: Notice.

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SUMMARY: This notice concerns the authority of the Department of 
Homeland Security (DHS or the Department) to place certain designated 
categories of aliens in expedited removal proceedings. On November 13, 
2002, the former Immigration and Naturalization Service (INS) of the 
Department of Justice issued a notice designating certain aliens who 
arrive by sea, either by boat or other means, as eligible for placement 
in expedited removal proceedings, with an exception for Cuban citizens 
or nationals (hereinafter ``Cuban nationals''). On August 11, 2004, DHS 
issued a notice designating certain aliens in the United States as 
eligible for placement in expedited removal proceedings, also with an 
exception for Cuban nationals. In light of recent changes in the 
relationship between the United States and Cuba, the Department has 
determined that the exceptions for Cuban nationals, contained in the 
designations of November 13, 2002 and August 11, 2004, are no longer 
warranted and are thus hereby eliminated. The rest of the November 13, 
2002 and August 11, 2004 designations, including any implementing 
policies, are unaffected by this notice and remain unchanged.

DATE:  This notice is effective on January 13, 2017. Interested persons 
are invited to submit written comments on this notice on or before 
March 20, 2017.

ADDRESSES: You may submit comments, identified by DHS Docket Number 
DHS-2017-0004, by any one of the following methods:

[[Page 4903]]

     Federal e-Rulemaking Portal www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Mail or Hand Delivery/Courier: Please submit all written 
comments (including and CD-ROM submissions) to Amanda Baran, Principal 
Director for Immigration Policy, DHS, 245 Murray Lane SW., Mail Stop 
0445, Washington, DC 20528.
    Please submit your comments by only one method. Comments received 
by means other than those listed above or received after the comment 
period has closed will not be reviewed. All comments received will be 
posted without change on https://www.regulations.gov. The https://www.regulations.gov Web site is the Federal e-rulemaking portal and 
comments posted there are available and accessible to the public. 
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 https://www.regulations.gov Web site. It is the 
commenter's responsibility to safeguard his or her information. 
Comments submitted through https://www.regulations.gov will not include 
the commenter's email address unless the commenter chooses to include 
that information as part of his or her comment.
    Postal delivery in Washington, DC, may be delayed due to security 
concerns. Therefore, DHS encourages the public to submit comments 
through the https://www.regulations.gov Web site.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking portal at https://www.regulations.gov. If you need assistance to review the comments, 
please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Amanda Baran, Principal Director for 
Immigration Policy, 202-282-8805, Amanda.baran@hq.dhs.gov.

SUPPLEMENTARY INFORMATION: 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 
United States and certain other applicants for admission 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), for lack of valid documents 
necessary for admission or entry or for procuring or seeking to procure 
a visa, other immigration-related documentation, admission to the 
United States, or other immigration benefit by fraud or willful 
misrepresentation of a material fact.
    Expedited removal proceedings under section 235(b) of the Act, 8 
U.S.C. 1225(b), may be applied to two categories of aliens. First, 
expedited removal proceedings may be used for aliens who are ``arriving 
in the United States.'' Section 235(b)(1)(A)(i) of the Act, 8 U.S.C. 
1225(b)(1)(A)(i). Second, the Secretary, in his or her sole and 
unreviewable discretion, may designate certain other aliens to whom the 
expedited removal provisions may be applied. Section 235(b)(1)(A)(iii) 
of the Act, 8 U.S.C. 1225(b)(1)(A)(iii); see 8 CFR 235.3(b)(1)(ii). 
Specifically, with limited exception, the Act authorizes the Secretary 
to apply (by designation) expedited removal proceedings to all or any 
subset of aliens who (1) have not been admitted or paroled following 
inspection by an immigration officer at a designated port-of-entry, and 
(2) have not established to the satisfaction of the immigration officer 
that they have been physically present in the United States 
continuously for the two-year period immediately prior to the date of 
determination of inadmissibility. Section 235(b)(1)(A)(iii)(I)-(II), 8 
U.S.C. 1225(b)(1)(A)(iii)(I)-(II). The Secretary may modify such 
designations at any time. Id.
    On November 13, 2002, the former INS issued a Federal Register 
notice announcing that it was exercising its authority under section 
235(b)(1)(A)(iii) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii), to designate 
additional aliens who may be placed in expedited removal proceedings. 
67 FR 68924. Specifically, that notice designated the following class 
of aliens who may be placed in expedited removal proceedings: ``all 
aliens who arrive in the United States by sea, either by boat or other 
means, who are not admitted or paroled, and who have not been 
physically present in the United States continuously for the two-year 
period prior to a determination of inadmissibility.'' Id. The INS noted 
at the time that ``[p]lacing these individuals in expedited removal 
proceedings and maintaining detention for the duration of all 
immigration proceedings, with limited exceptions, will ensure prompt 
immigration determinations and ensure removal from the country of those 
not granted relief in those cases, while at the same time protecting 
the rights of the individuals affected.'' Id. The INS also stated that 
``exercising its authority to detain this class of aliens . . . will 
assist in deterring surges in illegal migration by sea, including 
potential mass migration, and preventing loss of life.'' Id. The INS 
further noted that preventing illegal migration by sea also protects 
national security, as ``[a] surge in illegal migration by sea threatens 
[that] security by diverting valuable United States Coast Guard and 
other resources from counter-terrorism and homeland security 
responsibilities.'' Id.
    The November 13, 2002 notice, however, contained an exception for 
Cuban nationals who are otherwise described in the designated class, 
stating that expedited removal proceedings would not be initiated 
against such Cuban nationals who arrive by sea. Id. The INS based this 
exception on ``longstanding U.S. policy to treat Cubans differently 
from other aliens,'' citing the Cuban Adjustment Act, Public Law 89-732 
(1966) (8 U.S.C. 1255 note), as an example of such treatment. Id. The 
notice also cited section 235(b)(1)(F) of the Act, 8 U.S.C. 
1225(b)(1)(F), which at the time statutorily exempted Cuban nationals 
who arrived by aircraft at a U.S. port of entry from being placed into 
expedited removal proceedings because of the lack of diplomatic 
relations between the United States and Cuba. That section expressly 
provides that expedited removal ``shall not apply to an alien who is a 
native or citizen of a country in the Western Hemisphere with whose 
government the United States does not have full diplomatic relations 
and who arrives by aircraft at a port of entry.'' Section 235(b)(1)(F) 
of the Act, 8 U.S.C. 1225(b)(1)(F).
    On August 11, 2004, DHS issued a similar Federal Register notice 
announcing that it was exercising its authority under section 
235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii), to designate an 
additional class of aliens who may be placed in expedited removal 
proceedings. 69 FR 48877. That notice authorized the Department 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

[[Page 4904]]

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.'' Id. DHS noted 
at the time 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.'' Id.
    Like the November 13, 2002 notice, the August 11, 2004 notice 
contained an exception for Cuban nationals who are otherwise described 
in the designated class and stated that expedited removal proceedings 
would not be initiated against such nationals encountered in the United 
States. Id. The notice similarly based this exception on that fact that 
``removals to Cuba [could not] presently be assured and for other U.S. 
policy reasons,'' id., citing section 235(b)(1)(F) of the Act, 8 U.S.C. 
1225(b)(1)(F), as well.
    Since those notices were issued, significant changes in the 
relationship between the United States and Cuba have occurred. In 
December 2014, President Obama announced a historic opening between the 
United States and Cuba, as well as an approach for reestablishing 
diplomatic relations and adjusting regulations to facilitate greater 
travel, commerce, people-to-people ties, and the free flow of 
information to, from, and within Cuba. On July 20, 2015, the United 
States and Cuba formally reestablished full diplomatic relations and 
opened embassies in each other's countries. In the time following the 
reestablishment of full diplomatic relations, the United States and 
Cuba have taken concrete steps towards enhancing security, building 
bridges between our peoples, and promoting economic prosperity for 
citizens of both countries. And recent migration discussions have 
yielded important changes that will dramatically affect travel and 
migration between our two countries. Among other things, Cuba has 
agreed to accept and facilitate the repatriation of its nationals who 
are ordered removed from the United States. This arrangement and other 
changes remain the focus of ongoing diplomatic discussions between the 
two countries.
    DHS also has recently seen a significant increase in attempts by 
Cuban nationals to illegally enter the United States. Many of those 
Cuban nationals have taken a dangerous journey through Central America 
and Mexico; others have taken to the high seas in the dangerous attempt 
to cross the Straits of Florida. DHS believes this increase in 
attempted migration has been driven in part by the perception that 
there is a limited window before the United States will eliminate 
favorable immigration policies for Cuban nationals.
    The application of the expedited removal authorities to Cuban 
nationals must reflect these new realities. First, the Department notes 
that the statutory provision categorically barring the use of expedited 
removal for certain aliens who arrive by aircraft at a U.S. port of 
entry no longer applies to Cuban nationals, as the United States and 
Cuba have reestablished full diplomatic relations. See section 
235(b)(1)(F) of the Act, 8 U.S.C. 1225(b)(1)(F). In fact, DHS and DOJ 
are promulgating rules in this issue of the Federal Register, amending 
8 CFR 235.3(b)(1)(i) and 1235.3(b)(1)(i) to strike the regulatory 
exception for Cuban nationals arriving by aircraft at a U.S. port of 
entry. Second, the improved relationship between the United States and 
Cuba, along with Cuba's agreement to accept the repatriation of its 
nationals, has eroded certain U.S. policy justifications for the 
exception. Finally, a categorical exception severely impairs the 
Government's ability to remove unauthorized aliens encountered within 
the United States. For these reasons, DHS has determined, in 
consultation with the Department of State, that a categorical exception 
from expedited removal for Cuban nationals is no longer in the 
interests of the United States.
    Accordingly, this notice eliminates the categorical exceptions for 
Cuban nationals, with respect to both the November 13, 2002 and August 
11, 2004 notices, on a prospective basis, beginning on January 13, 
2017, see 8 CFR 235.3(b)(1)(ii) (designation may be effective as early 
as the date of issuance). As a result, Cuban nationals encountered on 
or after January 13, 2017 are included in the classes of aliens subject 
to expedited removal as designated in the November 13, 2002 and August 
11, 2004 notices. DHS is not changing any other aspects of those 
designations and, apart from the modification described above, will 
continue exercising its expedited removal authority as indicated in the 
November 13, 2002 and August 11, 2004 notices.
    As it did for the November 13, 2002 and August 11, 2004 notices, 
and consistent with implementing regulations at 8 CFR 235.3(b)(1)(ii), 
the Department has determined that good cause exists to exempt this 
notice from the notice-and-comment and 30-day delayed effective date 
requirements under the Administrative Procedure Act (APA). See 5 U.S.C. 
553(b)(3)(B) and (d)(3). Delaying the implementation of this notice to 
allow public notice and comment would be impracticable and contrary to 
the public interest. Congress explicitly authorized the Secretary 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)(I) of the Act, 8 
U.S.C. 1225(b)(1)(A)(iii)(I).
    Moreover, as with the August 11, 2004 notice, the designation in 
this notice is necessary to remove quickly from the United States 
aliens who are encountered shortly after illegally entering across U.S. 
land borders. The ability to detain such aliens while admissibility and 
identity are determined and protection claims are adjudicated, as well 
as to quickly remove those without protection claims or claims to 
lawful status, is a necessity for national security and public safety.
    DHS has determined that pre-promulgation notice and comment would 
undermine these interests, while endangering human life and having a 
potential destabilizing effect in the region. Among other things, such 
opportunity for notice and comment could result in a surge in migration 
of Cuban nationals seeking to travel to and enter the United States 
prior to the effectuation of the changes announced in this notice. Such 
a surge would threaten national security and public safety by diverting 
valuable Government resources from counterterrorism and homeland 
security responsibilities. See Matter of D-J-, I. & N. Dec. 572, 579 
(A.G. 2003). 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 in 
migration over land or sea could result in significant loss of human 
life. For the foregoing reasons, the Department has determined that 
public notice and comment prior to promulgation of this notice would be 
impracticable and contrary to the public interest.
    In addition, the change implemented by this notice is part of a 
major foreign policy initiative announced by the President, and is 
central to ongoing

[[Page 4905]]

diplomatic discussions between the United States and Cuba with respect 
to travel and migration between the two countries. DHS, in consultation 
with the Department of State, has determined that eliminating the 
exception from expedited removal proceedings for Cuban nationals 
involves a foreign affairs function of the United States, 5 U.S.C. 
553(a)(1), and that this notice is exempt from APA procedural 
requirements on that basis.
    Finally, and for the same reasons described above, DHS finds that 
delay caused by publication would adversely affect the interests of the 
United States and the effective enforcement of the immigration laws, 
and therefore invokes 8 CFR 235.3(b)(1)(ii) to make this designation 
effective immediately upon placement on public inspection.
    Although advance notice and comment procedures are not in the 
interests of the United States with respect to this notice, DHS is 
interested in receiving comments from the public on the elimination of 
the categorical exception for Cuban nationals. DHS believes that by 
maintaining a dialogue with interested parties, DHS may be better 
positioned to 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.

Notice of Designation of Aliens Subject to Expedited Removal 
Proceedings

    Pursuant to section 235(b)(1)(A)(iii) of the Immigration and 
Nationality Act (8 U.S.C. 1225(b)(1)(A)(iii)) and 8 CFR 
235.3(b)(1)(ii), I order as follows:
    (1) With respect to the above-referenced Designation of November 
13, 2002, 67 FR 68924, I hereby rescind the provision at numbered 
paragraph (5), specifying that ``[e]xpedited removal proceedings will 
not be initiated against Cuban citizens or nationals who arrive by 
sea,'' and other language of the Designation referencing or relating to 
that exception for Cuban citizens or nationals.
    (2) With respect to the above-referenced Designation of August 11, 
2004, 69 FR 48877, I hereby rescind the provision at numbered paragraph 
(6), specifying that ``[t]he expedited removal proceedings contemplated 
by this notice will not be initiated against Cuban citizens or 
nationals,'' and other language of the Designation referencing or 
relating to that exception for Cuban citizens or nationals.

    Signed: at Washington, DC this 11th of January, 2017.
Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2017-00914 Filed 1-13-17; 8:45 am]
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