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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: November 13, 2002 (Volume 67, Number 219)]
[Notices]               
[Page 68923-68926]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13no02-135]                         


[[Page 68923]]

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Part IV





Department of Justice





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Immigration and Naturalization Service



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Notice Designating Aliens Subject to Expedited Removal Under Section 
235(b)(1)(A)(iii) of the Immigration and Nationality Act; Notice


[[Page 68924]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS Order No. 2243-02]

 
Notice Designating Aliens Subject to Expedited Removal Under 
Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

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SUMMARY: This Notice authorizes the Immigration and Naturalization 
Service (``the Service'') to place in expedited removal proceedings 
certain aliens who arrive in the United States by sea, either by boat 
or other means, who are not admitted or paroled, and who have not been 
physically present in the United States continuously for the two-year 
period prior to the determination of inadmissibility under this Notice. 
Aliens falling within this newly designated class who are placed in 
expedited removal proceedings will be detained, subject to humanitarian 
parole exceptions, during the course of immigration proceedings, 
including, but not limited to, any hearings before an immigration 
judge. The Service believes that implementing the expedited removal 
provisions, and exercising its authority to detain this class of aliens 
under 8 CFR part 235, will assist in deterring surges in illegal 
migration by sea, including potential mass migration, and preventing 
loss of life. A surge in illegal migration by sea threatens national 
security by diverting valuable United States Coast Guard and other 
resources from counter-terrorism and homeland security 
responsibilities. Placing these individuals in expedited removal 
proceedings and maintaining detention for the duration of all 
immigration proceedings, with limited exceptions, will ensure prompt 
immigration determinations and ensure removal from the country of those 
not granted relief in those cases, while at the same time protecting 
the rights of the individuals affected.

EFFECTIVE DATES: This Notice is effective on November 13, 2002.
    Written comments must be submitted on or before December 13, 2002.

ADDRESSES: Written comments must be submitted to the Regulations and 
Forms Services Division, Immigration and Naturalization Service, 425 I 
Street NW., Room 4034, Washington, DC 20536. To ensure proper handling, 
please reference INS No. 2243-02 on your correspondence. You may also 
submit comments electronically to the Service at insregs@usdoj.gov when 
submitting comments electronically you must include INS 2243-02 in the 
subject box. Comments are available for public inspection at the above 
address by calling (202) 514-3291 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Linda M. Loveless, Assistant Chief 
Inspector, Inspections Division, Immigration and Naturalization 
Service, 425 I Street, NW., Room 4064, Washington, DC 20536, telephone 
(202) 616-7489.

SUPPLEMENTARY INFORMATION: Section 302 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. 
C, 110 Stat. 3009-546 (IIRIRA), amended section 235(b) of the 
Immigration and Nationality Act (``Act''), 8 U.S.C. 1225(b), to 
authorize the Attorney General 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). Under these ``expedited removal'' 
proceedings, an alien who indicates an intention to apply for asylum or 
who asserts a fear of persecution or torture is referred to an asylum 
officer to conduct an interview as to whether such alien has a 
``credible fear.'' Sections 235(b)(1)(A)(ii) and (B) of the Act, 8 
U.S.C. 1225(b)(1)(A)(ii) and (B); 8 CFR 235.3(b)(4). Those who meet 
that standard are referred to an immigration judge for a hearing on the 
merits of their claim or claims. 8 CFR 208.30(f).
    The Service previously published a proposed rule and two interim 
rules to implement this expedited removal authority. 63 FR 19302-01 
(April 20, 1998); 62 FR 10330 (March 6, 1997); and 62 FR 444-01 (Jan. 
3, 1997). These rules established the current expedited removal. 8 CFR 
235.3(b).
    Under section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1), expedited 
removal proceedings may be applied to two categories of aliens. First, 
section 235(b)(1)(A)(i) of the Act, 8 U.S.C. 1225(b)(1)(A)(i), permits 
expedited removal proceedings for aliens who are ``arriving in the 
United States,'' except for Cuban citizens who arrive at United States 
ports-of-entry by aircraft, who are exempted from expedited removal 
under section 235(b)(1)(F) of the Act, 8 U.S.C. 1225(b)(1)(F). Federal 
regulations define an ``arriving alien.'' 8 CFR 1.1(q). Second, section 
235(b)(1)(A)(iii) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii), permits the 
Attorney General, in his sole and unreviewable discretion, to designate 
certain other aliens to whom the expedited removal provisions may be 
applied, even though they are not arriving in the United States. 
Specifically, the Attorney General may apply the expedited removal 
provisions to any or all aliens who have not been admitted or paroled 
into the United States and who have not been physically present in the 
United States continuously for the two-year period prior to a 
determination of inadmissibility by an immigration officer. The 
Attorney General delegated his authority to designate classes of aliens 
to the Commissioner of the Service:

    As specifically designated by the Commissioner, aliens who 
arrive in, attempt to enter, or have entered the United States 
without having been admitted or paroled following inspection by an 
immigration officer at a designated port-of-entry, and who have not 
established to the satisfaction of the immigration officer that they 
have been physically present in the United States continuously for 
the 2-year period immediately prior to the date of determination of 
inadmissibility * * *. When these provisions are in effect for 
aliens who enter without inspection, the burden of proof rests with 
the alien to affirmatively show that he or she has the required 
continuous physical presence in the United States. Any absence from 
the United States shall serve to break the period of continuous 
physical presence.

8 CFR 235.3(b)(1)(ii).
    The designation may become effective upon publication in the 
Federal Register, or, if the ``delay caused by the publication would 
adversely affect the interests of the United States or the effective 
enforcement of the immigration laws,'' the designation may become 
effective upon issuance and be published as soon as practicable. 8 CFR 
235.3(b)(1)(ii). Since the expedited removal authority was added to the 
Act in 1996, neither the Attorney General nor the Commissioner of the 
Service has not utilized this ``specific designation'' authority.
    This Notice constitutes the first designation of an additional 
class of aliens who may be placed in expedited removal proceedings: 
aliens who arrive in the United States by sea, either by boat or other 
means, who are not admitted or paroled, and who have not been 
physically present in the United States continuously for the two-year 
period prior to a determination of inadmissibility by a Service 
officer. The alien has the burden affirmatively to show to the 
satisfaction of an immigration officer that the alien has not been 
present in the United States continuously for the relevant two-year 
period. Section 235(b)(1)(A)(iii)(II) of the Act, 8 U.S.C. 
1225(b)(1)(A)(iii)(II); 8

[[Page 68925]]

CFR 235.3(b)(1)(ii). This Notice does not apply to aliens who arrive at 
United States ports-of-entry.
    It is important to note that certain aliens who arrive in the 
United States by sea are already subject to expedited removal if they 
fall within the definition of ``arriving alien'' in 8 CFR 1.1(q): ``an 
alien interdicted in international or United States waters and brought 
into the United States by any means, whether or not to a designated 
port-of-entry, and regardless of the means of transport.'' This Notice 
will ensure that all aliens, with one exception noted below, who arrive 
illegally by sea, whether interdicted or not, will be subject to 
expedited removal.
    This designation is necessary to remove quickly from the United 
States aliens who arrive illegally by sea and who do not establish a 
credible fear. The ability to detain aliens while admissibility is 
determined and protection claims are adjudicated, as well as to remove 
quickly aliens without protection claims, will deter additional aliens 
from taking to the sea and traveling illegally to the United States. 
Illegal migration by sea is perilous and the Department of Justice has 
repeatedly cautioned aliens considering similar attempts to reject such 
a hazardous voyage.
    Any alien who falls within this designation, who is placed in 
expedited removal proceedings, and who indicates an intention to apply 
for asylum or who asserts a fear of persecution or torture will be 
interviewed by an asylum officer who will determine whether the alien 
has a credible fear. If that standard is met, the alien will be 
referred to an immigration judge for a hearing on the merits of the 
protection claim or claims. Sections 235(b)(1)(A)(ii) and (B) of the 
Act, 8 U.S.C. 1225(b)(1)(A)(ii) and (B); 8 CFR 235.3(b)(4). The Forms 
I-867A and I-867B currently used by the officers who process aliens 
under the expedited removal program, in accordance with the statutory 
requirement at section 235(b)(1)(B)(iv) of the Act, 8 U.S.C. 
1225(b)(1)(B)(iv), carefully explains to all aliens in expedited 
removal proceedings an alien's right to a ``credible fear'' interview. 
The forms also require that the officer determine whether the alien has 
any reason to fear harm if returned to his or her country. These forms 
will also be used for aliens placed in expedited removal under this 
designation. Officers who administer the program are trained to be 
alert for any verbal or non-verbal indications that the alien may be 
afraid to return to his or her homeland.
    The Service, with limited exceptions, plans to detain aliens 
designated by this Notice. Section 235(b)(1)(B)(iii)(IV) of the Act, 8 
U.S.C. 1225(b)(1)(B)(iii)(IV) and 8 CFR 235.3(b)(iii) directs that any 
alien who is placed in expedited removal proceedings shall be detained 
pending a final determination of credible fear and if found not to have 
such a fear, such alien shall be detained until removed. Parole of such 
alien may be permitted only when the Attorney General determines, in 
the exercise of discretion, that parole is required to meet a medical 
emergency or is necessary for a legitimate law enforcement objective.
    Section 235(b)(1)(B)(ii) of the Act, 8 U.S.C. 1225(b)(1)(B)(ii), 
directs that if a credible fear has been established, the alien shall 
be detained for further consideration of the protection claim or 
claims. Immigration judge review of custody determinations under 8 CFR 
3.19(a) are permitted only for bond and custody determinations pursuant 
to section 236 of the Act, 8 U.S.C. 1226, and 8 CFR part 236. Aliens 
designated under this notice would not be detained under section 236 of 
the Act, but rather under section 235. Aliens subject to expedited 
removal procedures under section 235 of the Act are not eligible for 
bond, and therefore may not seek a bond redetermination before an 
immigration judge. Parole of such aliens based on humanitarian concerns 
may be considered in accordance with section 212(d)(5) of the Act, 8 
U.S.C. 1182(d)(5) and 8 CFR 212.5.
    This Notice applies to certain aliens who arrive in the U.S. by sea 
on or after November 13, 2002. Furthermore, expedited removal 
proceedings, however, will not be initiated against Cuban citizens who 
arrive by sea because it is longstanding U.S. policy to treat Cubans 
differently from other aliens. See, e.g., Cuban Adjustment Act, Pub. L. 
89-732 (1966) (allowing any native or citizen of Cuba who is inspected 
and admitted or paroled into the United States to apply for lawful 
permanent resident status after one year). Finally, crewmen and 
stowaways will not be subject to this Notice because the Act already 
mandates specific removal proceedings for such aliens.
    This Notice does not require ``notice and comment'' under the 
Administrative Procedures Act because Congress explicitly authorized 
the Attorney General to designate categories of aliens to whom 
expedited removal proceedings may be applied, and that ``[s]uch 
designation shall be in the sole and unreviewable discretion of the 
Attorney General and may be modified at any time (emphasis added).'' 
Section 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I). Current 
regulations of the Service provide public notice that the designation 
of new categories of aliens to be subjected to expedited removal will 
be made via publication of a Notice in the Federal Register:
    The 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. The Commissioner's designation 
shall become effective upon publication of a notice in the Federal 
Register. However, 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.

8 CFR 235.3(b)(ii).
    In the alternative, the Service's immediate implementation of this 
Notice, with provisions for post-promulgation public comments, is based 
on the ``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and 
(d)(3). The reason and necessity for the immediate promulgation of this 
rule is the need to deter foreign nationals from undertaking dangerous 
sea voyages to the United States and to detain those that are 
apprehended doing so. As explained in the SUPPLEMENTARY INFORMATION, a 
surge in illegal migration by sea, including the potential for a mass 
migration, would jeopardize or compromise the national security and, 
therefore, requires the immediate implementation of this Notice.

Notice of Designation of Aliens Subject to Expedited Removal 
Proceedings

    Pursuant to section 235(b)(1)(A)(iii) of the Immigration and 
Nationality Act (``Act'') and 8 CFR 235.3(b)(1)(ii), I order as 
follows:
    (1) Except as provided in paragraph (5), all aliens who arrive in 
the United States by sea, either by boat or other means, who are not 
admitted or paroled, and who have not been physically present in the 
United States continuously for the two-year period prior to a 
determination of inadmissibility by a Service officer shall be placed 
in expedited removal proceedings. The alien has the burden 
affirmatively to show to the satisfaction of an immigration officer 
that the alien has been present in the United States continuously for 
the relevant two-year period. This Notice does not apply to aliens who 
arrive at United States ports-of-entry. This Notice does not apply to

[[Page 68926]]

alien crewmen or stowaways as described in the Act.
    (2) Any alien who falls within this designation who indicates an 
intention to apply for asylum or who asserts a fear of persecution or 
torture will be interviewed by an asylum officer to determine whether 
the alien has a credible fear as defined in section 235(b)(1)(B)(v), 8 
U.S.C. 1225(b)(1)(B)(v). If that standard is met, the alien will be 
referred to an immigration judge for a hearing on the merits of the 
protection claim or claims.
    (3) An alien found to have a credible fear and subsequently placed 
into removal proceedings before an immigration judge will be detained, 
with certain humanitarian exceptions, throughout those proceedings and 
will not be eligible to request a bond redetermination hearing before 
an immigration judge.
    (4) This Notice applies to aliens described in paragraph (1) who 
arrive in the United States by sea on or after November 13, 2002.
    (5) Expedited removal proceedings will not be initiated against 
Cuban citizens or nationals who arrive by sea.

    Dated: November 12, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-29038 Filed 11-12-02; 12:33 pm]
BILLING CODE 4410-10-P




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