Eliminating Exception to Expedited Removal Authority for Cuban Nationals Arriving by Air, 4769-4771 [2017-00915]
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4769
Rules and Regulations
Federal Register
Vol. 82, No. 10
Tuesday, January 17, 2017
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
8 CFR Part 235
[DHS Docket No. DHS–2017–0003]
RIN 1601–AA81
Eliminating Exception to Expedited
Removal Authority for Cuban Nationals
Arriving by Air
Office of the Secretary,
Department of Homeland Security.
ACTION: Final rule; request for
comments.
AGENCY:
This final rule revises
Department of Homeland Security
(DHS) regulations to eliminate the
categorical exception from expedited
removal proceedings for Cuban
nationals who arrive in the United
States at a port of entry by aircraft. As
a result of these changes, Cuban
nationals who arrive in the United
States at a port of entry by aircraft will
be subject to expedited removal
proceedings commensurate with
nationals of other countries.
DATES: This final rule is effective
January 13, 2017. Interested persons are
invited to submit written comments on
this final rule on or before March 20,
2017.
ADDRESSES: You may submit comments,
identified by Regulatory Information
Number (RIN) 1601–AA81 and DHS
Docket Number DHS–2017–0003, by
any one of the following methods:
• 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
sradovich on DSK3GMQ082PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:30 Jan 13, 2017
Jkt 241001
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:
I. Background
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
what are known as ‘‘expedited removal
proceedings.’’ Specifically, section
235(b) was amended to authorize the
Attorney General (now the Secretary of
PO 00000
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Fmt 4700
Sfmt 4700
Homeland Security 1) to remove,
without a hearing before an immigration
judge, aliens arriving in the United
States 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), 8
U.S.C. 1225(b)(1)(A)(iii); see 8 CFR
235.3(b)(1)(ii).
When it created the expedited
removal process, Congress also created
a limited exception for certain aliens
who arrived at a U.S. port of entry by
aircraft. Under section 235(b)(1)(F) of
the Act, 8 U.S.C. 1225(b)(1)(F),
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.’’ For many years, this
exception applied to Cuban nationals
due to the lack of full diplomatic
relations between the United States and
Cuba. DHS regulations implementing
section 235(b)(1) of the Act, 8 U.S.C.
1225(b)(1), thus expressly stated that the
expedited removal provisions apply to
‘‘[a]rriving aliens, as defined in 8 CFR
1.2, except for citizens of Cuba arriving
at a United States port-of-entry by
aircraft.’’ 8 CFR 235.3(b)(1)(i); see also 8
1 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 (DOJ) 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.
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sradovich on DSK3GMQ082PROD with RULES
CFR 1235.3(b)(1)(i) (parallel Department
of Justice (DOJ) regulations stating that
the expedited removal provisions apply
to ‘‘[a]rriving aliens, as defined in [8
CFR 1001.1(q)], except for citizens of
Cuba arriving at a United States port-ofentry by aircraft’’).2
Since that regulation was
promulgated, 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-topeople 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, in consultation with the
Department of State, has determined
that the limitation at section 235(b)(1)(F)
of the Act, 8 U.S.C. 1225(b)(1)(F) no
longer applies with respect to Cuba.
Moreover, DHS 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
2 DOJ initially promulgated 8 CFR 235.3(b)(1)(i) as
an exercise of the functions of the former
Immigration and Naturalization Service (INS) and
the Executive Office for Immigration Review. See 62
FR 10312 (Mar. 6, 1997). Following enactment of
the HSA, 8 CFR 235.3(b)(1)(i) was transferred to
DHS, and effectively duplicated in parallel DOJ
regulations at 8 CFR 1235.3(b)(1)(i). See 68 FR
10349 (Mar. 5, 2003). DOJ is revising its parallel
regulation by separate rulemaking in this issue of
the Federal Register.
VerDate Sep<11>2014
16:30 Jan 13, 2017
Jkt 241001
favorable immigration policies for
Cuban nationals.
The application of the expedited
removal authorities to Cuban nationals
must reflect these new realities.
Accordingly, DHS is eliminating
provisions in its regulations that
categorically exempt Cuban nationals
who arrive at a U.S. port of entry by
aircraft from expedited removal
proceedings under 8 CFR 235.3.
Importantly, the statutory provision
categorically barring the use of
expedited removal for certain aliens
who arrive by air no longer applies to
Cuban nationals, as the United States
and Cuba have reestablished full
diplomatic relations. Moreover,
previous U.S. policy justifications for
exempting Cuban nationals from
expedited removal—including Cuba’s
general refusal to accept the repatriation
of its nationals—are no longer valid in
many respects. Finally, a categorical
exception severely impairs the
Government’s ability to remove
unauthorized aliens encountered within
the United States. For these reasons,
DHS, in consultation with the
Department of State, has determined
that a categorical exception from
expedited removal for Cuban nationals
is no longer in the interests of the
United States. Accordingly, as a result
of this final rule, Cuban nationals will
be subject to expedited removal
proceedings under section 235(b) of the
INA and 8 CFR 235.3 like nationals of
other countries. For the same reasons,
DHS is also publishing a notice in this
issue of the Federal Register to remove
the parallel exceptions for expedited
removal of Cuban nationals who arrive
by sea or who are encountered by an
immigration officer within 100 air miles
of the U.S. border.
II. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
The implementation of this rule as a
final rule, with provisions for postpromulgation public comments, is based
on the good cause exception found in
section 553 of the Administrative
Procedure Act (APA) (5 U.S.C.
553(b)(B)). Delaying the implementation
of the change announced in this rule to
allow pre-promulgation notice and
comment would be impracticable 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
PO 00000
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Fmt 4700
Sfmt 4700
modified at any time.’’ Section
235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C.
1225(b)(1)(A)(iii)(I). And this rule is
necessary to remove quickly from the
United States certain Cuban nationals
who arrive by air at U.S. ports of entry.
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.
Pre-promulgation notice and
comment would undermine these
interests, while endangering human life
and having a potential destabilizing
effect in the region. Specifically, DHS is
concerned that publication of the rule as
a proposed rule, which would signal a
significant change in policy while
permitting continuation of the exception
for Cuban nationals, could lead to a
surge in migration of Cuban nationals
seeking to travel to and enter the United
States during the period between the
publication of a proposed and a final
rule. 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.
Accordingly, DHS finds that it would be
impracticable and contrary to the public
interest to accept pre-promulgation
comments on this rule. For the same
reasons, DHS also finds good cause to
issue this rule without a 30-day delayed
effective date requirement of the APA,
see 5 U.S.C. 553(d).3
In addition, the change implemented
by this rule is part of a major foreign
policy initiative announced by the
President, and is central to ongoing
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 is also exempt
from the notice and comment and 30day delayed effective date requirements
of the APA on that basis. DHS is
3 In addition, in light of the lack of prepublication notice and comment and a delayed
effective date for the related notice that DHS has
published in this issue of the Federal Register, a
delay in the effective date of this regulation would
be incongruous and unnecessary.
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Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 / Rules and Regulations
nevertheless providing the opportunity
for the public to comment.
B. Executive Orders 13563 and 12866
Executive Orders 13563 and 12866
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
The Office of Management and Budget
has not designated this rule as a
significant regulatory action under
section 3(f) of Executive Order 12866.
Accordingly, the Office of Management
and Budget has not reviewed this rule.
Authority: 8 U.S.C. 1101 and note, 1103,
1183, 1185 (pursuant to E.O. 13323, 69 FR
241, 3 CFR, 2004 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379,
1731–32; Title VII of Public Law 110–229; 8
U.S.C. 1185 note (section 7209 of Pub. L.
108–458); Pub. L. 112–54.
2. Revise § 235.3(b)(1)(i) to read as
follows:
■
§ 235.3 Inadmissible aliens and expedited
removal.
*
*
*
*
*
(b) * * *
(1) * * *
(i) Arriving aliens, as defined in 8
CFR 1.2;
*
*
*
*
*
Signed: at Washington, DC, this 11th of
January 2017.
Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2017–00915 Filed 1–13–17; 8:45 am]
BILLING CODE P
C. Regulatory Flexibility Act
Regulatory Amendments
List of Subjects for 8 CFR Part 235
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
sradovich on DSK3GMQ082PROD with RULES
Authority and Issuance
For the reasons stated in the
preamble, part 235 of title 8 of the Code
of Federal Regulations is amended as set
forth below:
8 CFR CHAPTER I
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1235
[AG Order No. 3817–2017; EOIR Docket No.
401]
RIN 1125–AA80
Eliminating Exception to Expedited
Removal Authority for Cuban Nationals
Arriving by Air
Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule; request for
comments.
AGENCY:
This final rule revises
Executive Office for Immigration
Review (EOIR) regulations to eliminate
the categorical exception from
expedited removal proceedings for
Cuban nationals who arrive in the
United States at a port of entry by
aircraft. This final rule conforms with a
parallel Department of Homeland
Security (DHS) regulation. As a result of
these changes, Cuban nationals who
arrive in the United States at a port of
entry by aircraft will be subject to
expedited removal proceedings
commensurate with nationals of other
countries.
SUMMARY:
This final rule is effective
January 13, 2017. Interested persons are
invited to submit written comments on
this final rule on or before March 20,
2017. Comments received by mail will
be considered timely if they are
DATES:
PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION
1. The authority citation for part 235
continues to read:
■
16:30 Jan 13, 2017
postmarked on or before that date. The
electronic Federal Docket Management
System (FDMS) will accept comments
until midnight Eastern Time at the end
of that day.
ADDRESSES: Please submit written
comments to Jean King, General
Counsel, Executive Office for
Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia
22041. To ensure proper handling,
please reference RIN No. 1125–AA80 or
EOIR Docket No. 401 on your
correspondence. You may submit
comments electronically or view an
electronic version of this proposed rule
at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jean
King, General Counsel, Executive Office
for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia
22041; telephone (703) 605–1744 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.), as amended by the
Small Business Regulatory Enforcement
and Fairness Act of 1996, requires an
agency to prepare a regulatory flexibility
analysis that describes the effect of a
proposed rule on small entities when
the agency is required to publish a
general notice of proposed rulemaking.
A small entity may be a small business
(defined as any independently owned
and operated business not dominant in
its field that qualifies as a small
business per the Small Business Act); a
small not-for-profit organization; or a
small governmental jurisdiction
(locality with fewer than 50,000 people).
Because this final rule is exempt from
notice-and-comment rulemaking
requirements under 5 U.S.C. 553, a
regulatory flexibility analysis is not
required.
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Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of this rule.
EOIR also invites comments that relate
to the economic, environmental, or
federalism effects that might result from
this rule. To provide the most assistance
to EOIR, comments should explain the
reason for any recommended change,
and should include data, information, or
authority that supports such
recommended change.
All comments submitted for this
rulemaking should include the agency
name and RIN 1125–AA80 or EOIR
Docket No. 401. Please note that all
comments received are considered part
of the public record and will be made
available for public inspection at
www.regulations.gov., including
personally identifiable information
(such as a person’s name, address, or
any other data that might personally
identify that individual) voluntarily
submitted by the commenter.
If you want to submit personally
identifiable information as part of your
comment, but do not want it to be
posted online, you must include the
phrase ‘‘PERSONALLY IDENTIFIABLE
INFORMATION’’ in the first paragraph
of your comment and identify what
information you want redacted.
If you want to submit confidential
business information as part of your
comment, but do not want it to be
posted online, you must include the
phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You also must
prominently identify confidential
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Agencies
[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Rules and Regulations]
[Pages 4769-4771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00915]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 82, No. 10 / Tuesday, January 17, 2017 /
Rules and Regulations
[[Page 4769]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
8 CFR Part 235
[DHS Docket No. DHS-2017-0003]
RIN 1601-AA81
Eliminating Exception to Expedited Removal Authority for Cuban
Nationals Arriving by Air
AGENCY: Office of the Secretary, Department of Homeland Security.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This final rule revises Department of Homeland Security (DHS)
regulations to eliminate the categorical exception from expedited
removal proceedings for Cuban nationals who arrive in the United States
at a port of entry by aircraft. As a result of these changes, Cuban
nationals who arrive in the United States at a port of entry by
aircraft will be subject to expedited removal proceedings commensurate
with nationals of other countries.
DATES: This final rule is effective January 13, 2017. Interested
persons are invited to submit written comments on this final rule on or
before March 20, 2017.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1601-AA81 and DHS Docket Number DHS-2017-0003,
by any one of the following methods:
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:
I. Background
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 what are
known as ``expedited removal proceedings.'' Specifically, section
235(b) was amended to authorize the Attorney General (now the Secretary
of Homeland Security \1\) to remove, without a hearing before an
immigration judge, aliens arriving in the United States 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.
---------------------------------------------------------------------------
\1\ 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 (DOJ) 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.
---------------------------------------------------------------------------
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),
8 U.S.C. 1225(b)(1)(A)(iii); see 8 CFR 235.3(b)(1)(ii).
When it created the expedited removal process, Congress also
created a limited exception for certain aliens who arrived at a U.S.
port of entry by aircraft. Under section 235(b)(1)(F) of the Act, 8
U.S.C. 1225(b)(1)(F), 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.'' For many
years, this exception applied to Cuban nationals due to the lack of
full diplomatic relations between the United States and Cuba. DHS
regulations implementing section 235(b)(1) of the Act, 8 U.S.C.
1225(b)(1), thus expressly stated that the expedited removal provisions
apply to ``[a]rriving aliens, as defined in 8 CFR 1.2, except for
citizens of Cuba arriving at a United States port-of-entry by
aircraft.'' 8 CFR 235.3(b)(1)(i); see also 8
[[Page 4770]]
CFR 1235.3(b)(1)(i) (parallel Department of Justice (DOJ) regulations
stating that the expedited removal provisions apply to ``[a]rriving
aliens, as defined in [8 CFR 1001.1(q)], except for citizens of Cuba
arriving at a United States port-of-entry by aircraft'').\2\
---------------------------------------------------------------------------
\2\ DOJ initially promulgated 8 CFR 235.3(b)(1)(i) as an
exercise of the functions of the former Immigration and
Naturalization Service (INS) and the Executive Office for
Immigration Review. See 62 FR 10312 (Mar. 6, 1997). Following
enactment of the HSA, 8 CFR 235.3(b)(1)(i) was transferred to DHS,
and effectively duplicated in parallel DOJ regulations at 8 CFR
1235.3(b)(1)(i). See 68 FR 10349 (Mar. 5, 2003). DOJ is revising its
parallel regulation by separate rulemaking in this issue of the
Federal Register.
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Since that regulation was promulgated, 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, in consultation with the Department of State, has
determined that the limitation at section 235(b)(1)(F) of the Act, 8
U.S.C. 1225(b)(1)(F) no longer applies with respect to Cuba.
Moreover, DHS 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. Accordingly, DHS is
eliminating provisions in its regulations that categorically exempt
Cuban nationals who arrive at a U.S. port of entry by aircraft from
expedited removal proceedings under 8 CFR 235.3. Importantly, the
statutory provision categorically barring the use of expedited removal
for certain aliens who arrive by air no longer applies to Cuban
nationals, as the United States and Cuba have reestablished full
diplomatic relations. Moreover, previous U.S. policy justifications for
exempting Cuban nationals from expedited removal--including Cuba's
general refusal to accept the repatriation of its nationals--are no
longer valid in many respects. Finally, a categorical exception
severely impairs the Government's ability to remove unauthorized aliens
encountered within the United States. For these reasons, DHS, in
consultation with the Department of State, has determined that a
categorical exception from expedited removal for Cuban nationals is no
longer in the interests of the United States. Accordingly, as a result
of this final rule, Cuban nationals will be subject to expedited
removal proceedings under section 235(b) of the INA and 8 CFR 235.3
like nationals of other countries. For the same reasons, DHS is also
publishing a notice in this issue of the Federal Register to remove the
parallel exceptions for expedited removal of Cuban nationals who arrive
by sea or who are encountered by an immigration officer within 100 air
miles of the U.S. border.
II. Statutory and Regulatory Requirements
A. Administrative Procedure Act
The implementation of this rule as a final rule, with provisions
for post-promulgation public comments, is based on the good cause
exception found in section 553 of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)(B)). Delaying the implementation of the change
announced in this rule to allow pre-promulgation notice and comment
would be impracticable 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)(I) of the Act, 8 U.S.C.
1225(b)(1)(A)(iii)(I). And this rule is necessary to remove quickly
from the United States certain Cuban nationals who arrive by air at
U.S. ports of entry. 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.
Pre-promulgation notice and comment would undermine these
interests, while endangering human life and having a potential
destabilizing effect in the region. Specifically, DHS is concerned that
publication of the rule as a proposed rule, which would signal a
significant change in policy while permitting continuation of the
exception for Cuban nationals, could lead to a surge in migration of
Cuban nationals seeking to travel to and enter the United States during
the period between the publication of a proposed and a final rule. 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. Accordingly, DHS finds
that it would be impracticable and contrary to the public interest to
accept pre-promulgation comments on this rule. For the same reasons,
DHS also finds good cause to issue this rule without a 30-day delayed
effective date requirement of the APA, see 5 U.S.C. 553(d).\3\
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\3\ In addition, in light of the lack of pre-publication notice
and comment and a delayed effective date for the related notice that
DHS has published in this issue of the Federal Register, a delay in
the effective date of this regulation would be incongruous and
unnecessary.
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In addition, the change implemented by this rule is part of a major
foreign policy initiative announced by the President, and is central to
ongoing 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 is also exempt from the notice and comment and
30-day delayed effective date requirements of the APA on that basis.
DHS is
[[Page 4771]]
nevertheless providing the opportunity for the public to comment.
B. Executive Orders 13563 and 12866
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
The Office of Management and Budget has not designated this rule as
a significant regulatory action under section 3(f) of Executive Order
12866. Accordingly, the Office of Management and Budget has not
reviewed this rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare a regulatory flexibility analysis that
describes the effect of a proposed rule on small entities when the
agency is required to publish a general notice of proposed rulemaking.
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people). Because this final rule is exempt from notice-and-
comment rulemaking requirements under 5 U.S.C. 553, a regulatory
flexibility analysis is not required.
Regulatory Amendments
List of Subjects for 8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons stated in the preamble, part 235 of title 8 of the
Code of Federal Regulations is amended as set forth below:
8 CFR CHAPTER I
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
1. The authority citation for part 235 continues to read:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of
Public Law 110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458); Pub. L. 112-54.
0
2. Revise Sec. 235.3(b)(1)(i) to read as follows:
Sec. 235.3 Inadmissible aliens and expedited removal.
* * * * *
(b) * * *
(1) * * *
(i) Arriving aliens, as defined in 8 CFR 1.2;
* * * * *
Signed: at Washington, DC, this 11th of January 2017.
Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2017-00915 Filed 1-13-17; 8:45 am]
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