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


US 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. 

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
section 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
[insert date of publication in FEDERAL REGISTER].

Written comments must be submitted on or before
[insert date 30 days from date of publication in FEDERAL
REGISTER]

ADDRESSES: Written comments must be submitted
to Regulations and Forms Services Division, Immigration
and Naturalization Service, 425 I Street NW, Room 5307,
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@doj.gov
. When submitting comments
electronically you must include INS 2243 in the subject
box. Comments are available for public inspection at the
above address by calling (202) 514-3048 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. No.
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. (b)(4). Those who
meet that standard are referred to an immigration judge
for a hearing o n 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 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 section 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
[insert date of publication in Federal Register].
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. No. 89-732 (1966)
(allowing any native or citizen of Cuban 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 Act already mandates
specific removal proceedings for such aliens.  

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 alien
    crewmen or stowaways as described in the Act.

  1. 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.  

  1. 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.

  1. This Notice applies to aliens described in
    paragraph (1) who arrive in the United States by sea
    on or after [insert date of publication in Federal
    Register
    ].

  1. Expedited removal proceedings will not be
    initiated against Cuban citizens or nationals who
    arrive by sea.  


James W. Ziglar, Commissioner

November 11, 2002