Designating Aliens for Expedited Removal, 35409-35414 [2019-15710]

Download as PDF Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices CBP regulations for the purposes of conducting a test program or procedure designed to evaluate the effectiveness of new technology or operational procedures regarding the processing of passengers, vessels, or merchandise. IV. Privacy CBP will ensure that all Privacy Act requirements and applicable policies are adhered to during the implementation of this pilot. jspears on DSK30JT082PROD with NOTICES V. Paperwork Reduction Act The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) requires that CBP consider the impact of paperwork and other information collection burdens imposed on the public. The PRA applies to collections of information imposed on ‘‘ten or more persons.’’ This pilot will initially include fewer than ten participants and as such will not require an OMB control number. If CBP expands the pilot to include ten or more persons, CBP will adhere to the requirements of the PRA. VI. Misconduct Under the Pilot A pilot participant may be subject to civil and criminal penalties, administrative sanctions, liquidated damages, or discontinuance from participation in the Section 321 Data Pilot for any of the following: (1) Failure to follow the rules, terms, and conditions of this pilot; (2) Failure to exercise reasonable care in the execution of participant obligations; or (3) Failure to abide by applicable laws and regulations that have not been waived. If the Director, Intellectual Property Rights and E-Commerce Division, Office of Trade, finds that there is a basis for discontinuance of pilot participation privileges, the pilot participant will be provided a written notice proposing the discontinuance with a description of the facts or conduct warranting the action. The pilot participant will be offered the opportunity to appeal the decision in writing within 10 calendar days of receipt of the written notice. The appeal of this determination must be submitted to the Executive Director, Trade Policy and Programs, Office of Trade, by emailing e-commercesmallbusiness branch@cbp.dhs.gov. The Executive Director, Trade Policy and Programs, Office of Trade, will issue a decision in writing on the proposed action within 30 working days after receiving a timely filed appeal from the pilot participant. If no timely appeal is received, the proposed notice becomes the final decision of the Agency as of the date that the appeal VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 period expires. A proposed discontinuance of a pilot participant’s privileges will not take effect unless the appeal process under this paragraph has been concluded with a written decision adverse to the pilot participant. In cases of willfulness or those in which public health, interest, or safety so requires, the Director, Intellectual Property Rights and E-Commerce Division, Office of Trade, may immediately discontinue the pilot participant’s privileges upon written notice to the pilot participant. The notice will contain a description of the facts or conduct warranting the immediate action. The pilot participant will be offered the opportunity to appeal the decision within 10 calendar days of receipt of the written notice providing for immediate discontinuance. The appeal of this determination must be submitted to the Executive Director, Trade Policy and Programs, Office of Trade, by emailing ecommercesmallbusinessbranch@ cbp.dhs.gov. The immediate discontinuance will remain in effect during the appeal period. The Executive Director, Trade Policy and Programs, Office of Trade, will issue a decision in writing on the discontinuance within 15 working days after receiving a timely filed appeal from the pilot participant. If no timely appeal is received, the notice becomes the final decision of the Agency as of the date that the appeal period expires. Date: July 18, 2019. Robert E. Perez, Deputy Commissioner, U.S. Customs and Border Protection. [FR Doc. 2019–15625 Filed 7–22–19; 8:45 am] BILLING CODE 9111–14–P DEPARTMENT OF HOMELAND SECURITY Office of the Secretary [DHS Docket No. DHS–2019–0036] Designating Aliens for Expedited Removal Office of the Secretary, Department of Homeland Security. ACTION: Notice. AGENCY: 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 SUMMARY: PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 35409 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 E:\FR\FM\23JYN1.SGM 23JYN1 35410 Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices jspears on DSK30JT082PROD with NOTICES 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 eRulemaking 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 eRulemaking Portal at https:// www.regulations.gov. Please follow the website instructions for submitting comments. If you cannot submit your comments using the Federal eRulemaking 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 VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 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). 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 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). PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 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 E:\FR\FM\23JYN1.SGM 23JYN1 jspears on DSK30JT082PROD with NOTICES Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices 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 VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 35411 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 B. DHS Need for the New Designation days. Conversely, for inadmissible In light of the ongoing crisis at the aliens encountered in the interior of the southern border, the large number of United States and placed into full aliens who entered illegally and were removal proceedings, the average time apprehended and detained within the in DHS custody was 51.5 days. Under interior of the United States, and DHS’s the New Designation, ICE will be able to insufficient detention capacity both use expedited removal for certain aliens along the border and in the interior of who it arrests in the interior, which will the United States, DHS is issuing the likely result in those aliens spending New Designation to use more effectively less time in ICE detention than if they and efficiently its limited resources to were placed in full removal fulfill its mission to enforce the proceedings. That, in turn, will more immigration laws and ensure the quickly make available additional ICE security of the Nation’s borders. See bed space, which can be used for INA section 103(a)(5), 8 U.S.C. additional interior arrests and removals. 1103(a)(5); 6 U.S.C. 202; Exec. Order Additionally, the Acting Secretary of 13767, Border Security and Immigration Homeland Security has determined that Enforcement Improvements, 82 FR 8793, the implementation of additional section 1 (Jan. 25, 2017) (Border measures is a necessary response to the Security E.O.) (‘‘Border security is ongoing immigration crisis. Presently, critically important to the national U.S. Border Patrol and ICE lack security of the United States. Aliens sufficient detention capacity and who illegally enter the United States resources to detain the vast majority of without inspection or admission present aliens DHS apprehends along the a significant threat to national security southern border. As a result, hundreds and public safety.’’). Fully exercising of thousands of aliens are released into DHS’s statutory expedited removal the interior of the United States, authority to include certain aliens who pending the outcome of their would not be subject to expedited immigration proceedings. However, by removal under the Previous more effectively utilizing ICE’s limited Designations will provide to DHS resources, more aliens apprehended officers a valuable tool to fulfill their along the southern border likely will be mission. able to be detained in ICE custody, Fully implementing expedited where they can be more quickly removal will help to alleviate some of processed and removed from the the burden and capacity issues currently country than if they had been released faced by DHS and DOJ by allowing DHS into the interior of the United States. to remove certain aliens encountered in The New Designation will also allow the interior more quickly, as opposed to ICE to place into expedited removal placing those aliens in more timecertain aliens that cross the border consuming removal proceedings. illegally but evade apprehension due to Indeed, many of the aliens previously vulnerabilities in border operations encountered in the interior of the resulting from U.S. Border Patrol’s lack United States likely would have been of sufficient resources. eligible for expedited removal under Additionally, immigration courts this Notice. In Fiscal Year (FY) 2018, nationwide are experiencing a historic 37% (20,570) of ICE’s 54,983 total backlog of removal cases, and noninterior encounters, with entry dates, detained cases are taking years to were of aliens who had been present in complete. In June 2019, EOIR reported the United States for less than two a total of 909,034 pending immigration years. Through March 30, 2019, 39% cases. By contrast, there were fewer than (6,410) of U.S. Immigration and 168,000 cases pending at the end of Customs Enforcement’s (ICE) 15,328 Fiscal Year 2004 when DHS exercised its discretion to apply expedited total interior encounters, with entry removal to certain aliens encountered dates, in FY2019 were aliens who had within 100 miles of the border who been present in the United States for 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). PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\23JYN1.SGM 23JYN1 jspears on DSK30JT082PROD with NOTICES 35412 Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices 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. VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 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 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 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. The expedited removal procedures required under existing law and regulations are applicable to the aliens designated by this Notice.4 As required 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). 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 E:\FR\FM\23JYN1.SGM 23JYN1 Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices jspears on DSK30JT082PROD with NOTICES 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). 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 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. VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 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). Implementation of the New Designation is exempt from notice-andcomment 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-bycase 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 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)). PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 35413 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 prepromulgation 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: E:\FR\FM\23JYN1.SGM 23JYN1 jspears on DSK30JT082PROD with NOTICES 35414 Federal Register / Vol. 84, No. 141 / Tuesday, July 23, 2019 / Notices (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 VerDate Sep<11>2014 16:43 Jul 22, 2019 Jkt 247001 designation who claims lawful permanent resident, refugee, or asylee status, or U.S. citizenship will be reviewed in accordance with the procedures provided in 8 CFR 235.3(b) and 8 CFR 1235.3(b). (4) This Notice applies to aliens described in paragraph (1) on or after July 23, 2019. (5) This Notice does not supersede, abrogate, or amend or modify any of the Previous Designations, which shall remain in full force and effect in accordance with their respective terms. Signed at Washington, DC, this 19th day of July 2019. Kevin K. McAleenan, Acting Secretary of Homeland Security. [FR Doc. 2019–15710 Filed 7–22–19; 8:45 am] BILLING CODE 9110–9M–P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT [Docket No. FR–7012–N–03] 60-Day Notice of Proposed Information Collection: Application for Community Compass TA and Capacity Building Program NOFA and Awardee Reporting Office of Community Planning and Development, HUD. ACTION: Notice. AGENCY: HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment. DATES: Comments Due Date: September 23, 2019. ADDRESSES: Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4186, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at Colette.Pollard@hud.gov for a copy of the proposed forms or other available information. Persons with hearing or speech impairments may access this number through TTY by calling the tollfree Federal Relay Service at (800) 877– 8339. FOR FURTHER INFORMATION CONTACT: Kenneth Rogers, Senior CPD Specialist, SUMMARY: PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 Kenneth Rogers at Kenneth.W.Rogers@ hud.gov or telephone 202–402–4396. This is not a toll-free number. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877–8339. Copies of available documents submitted to OMB may be obtained from Ms. Pollard. SUPPLEMENTARY INFORMATION: This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A. A. Overview of Information Collection Title of Information Collection: Application for Community Compass Technical Assistance and Capacity Building Program Notice of Funding Availability (NOFA). OMB Approval Number: 2506–0197. Type of Request: Extension. Form Number: SF–424, SF424CB, SF– 424CBW, SF–425, SF–LLL, HUD–2880, HUD–50070, HUD–XXX, HUD–XXX, HUD–XXX, HUD–XXX, HUD–XXX, HUD–XXX, and Grants.gov Lobbying Form Certification. Description of the need for the information and proposed use: Application information is needed to determine competition winners, i.e., the technical assistance providers best able to develop efficient and effective programs and projects that increase the supply of affordable housing units, prevent and reduce homelessness, improve data collection and reporting, and use coordinated neighborhood and community development strategies to revitalize and strengthen their communities. Additional information is needed during the life of the award from the competition winner, i.e., the technical assistance providers to fulfill the administrative requirements of the award. Application/Pre-Award Respondents (i.e., affected public): For profit and non-profit organizations. Estimated Number of Respondents: 60. Estimated Number of Responses: 60. Frequency of Response: 1. Average Hours per Response: 118.14. Application/Pre-Award Total Estimated Burden: 7,088.40. Post-Award Estimated Number of Respondents/ Awardees: 30. Work Plans: 10 per year/awardee. Average Hours per Response: 18. Reports: 4 per year/awardee. Average Hours per Response: 6. Recordkeeping: 12 per year/awardee. E:\FR\FM\23JYN1.SGM 23JYN1

Agencies

[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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    The Secretary, in his ``sole and unreviewable discretion,'' may 
designate certain aliens to whom the expedited removal provisions may 
be applied. INA section 235(b)(1)(A)(iii)(I), 8 U.S.C. 
1225(b)(1)(A)(iii)(I); 8 CFR 235.3(b)(1)(ii). The statute provides that 
the Secretary may apply (by designation) expedited removal to any alien 
``who has not been admitted or paroled into the United States, and who 
has not affirmatively shown, to the satisfaction of an immigration 
officer, that the alien has been physically present in the United 
States continuously for the 2-year period immediately prior to the date 
of the determination of inadmissibility. . . .'' INA section 
235(b)(1)(A)(iii)(II), 8 U.S.C. 1225(b)(1)(A)(iii)(II). In other words, 
Congress provided the Secretary, in his sole and unreviewable 
discretion, the authority to apply expedited removal to aliens 
inadmissible under INA section 212(a)(6)(C) or 212(a)(7), who had not 
been admitted or paroled and who could not prove that they have been 
continuously present in the United States for two years.
    In 1997, the Attorney General promulgated a regulation applying 
expedited removal to aliens arriving in the United States at a port-of-
entry and aliens interdicted in international or United States waters. 
Inspection and Expedited Removal of Aliens; Detention and Removal of 
Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10,312 
(Mar. 6, 1997) (the 1997 Regulation). The 1997 Regulation also 
delegated the Attorney General's authority to the Commissioner of the 
former Immigration and Naturalization Service (INS) and established a 
mechanism for later designations of aliens subject to expedited 
removal. See id. The Attorney General ``emphasized that a proposed 
expansion of the expedited removal procedures may occur at any time and 
may be driven either by specific situations such as a sudden influx of 
illegal aliens motivated by political or economic unrest or other 
events or by a general need to increase the effectiveness of 
enforcement operations at one or more locations.'' See id.
    In 2002, the Commissioner of the INS invoked this authority to 
designate as eligible for expedited removal aliens who arrived in the 
United States by sea, were not paroled or admitted into the United 
States, and ``who have not been physically present in the United States 
continuously for the two-year period prior to the determination of 
inadmissibility under'' the Notice. Notice Designating Aliens Subject 
to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration 
and Nationality Act, 67 FR 68923 (Nov. 13, 2002) (the 2002 Notice). 
Under the 2002 Notice, immigration officers could apply expedited 
removal to aliens encountered anywhere in the United States for up to 
two years after the alien arrived in the United States, as long as the 
alien arrived by sea and the other

[[Page 35411]]

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

B. DHS Need for the New Designation

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

[[Page 35412]]

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

C. Implementation Considerations

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

[[Page 35413]]

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

D. This Notice Is Immediately Effective

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

III. Notice of Designation of Aliens Subject To Expedited Removal

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

[[Page 35414]]

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

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